The Logic Behind the Supreme Court’s Westboro Decision

Westboro Baptist Church Demonstrators (Photo by: Garett Fisbeck)

Garett Fisbeck

Westboro Baptist Church Demonstrators (Photo by: Garett Fisbeck)

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The U.S. Supreme Court’s 8-1 decision last week to strike down a jury verdict against a church group that used military funerals to spread its anti-gay message should not be that surprising.

And the court’s logic in Snyder v. Phelps could help any First Amendment court challenge to a new state law giving survivors of soldiers killed in war a veto over — or a royalty from — the marketing of messages naming the deceased.

Contrary to the impression left by a number of reports of the case over the years leading to the final decision, the gay-hating speech in the form of words sung and signs carried were not “at” the funeral service of the plaintiff’s son, a Marine killed on active duty in Iraq.

The Westboro Baptist Church demonstrators — Rev. Fred Phelps and five relatives — were not within sight or earshot of the funeral ceremonies at either the church or the cemetery. They were in a small designated demonstration area on public land about a thousand feet down the road from the church, expressing their views peaceably and quietly, in compliance with a legal “guidance” from local law enforcement officers who were present to preserve order.

The plaintiff, who asked for more than $8 million in compensatory and punitive damages against the church for his emotional distress and was ultimately awarded more than $2 million, testified at trial that he saw the tops of the signs while driving by on the way to the funeral, but did not learn what the signs said until viewing a television news report later in the day.

The demonstrators’ activity for about 30 minutes prior to the funeral, in short, was in no sense an intrusion upon or disruption of the ceremony, nor did the signs say anything about the deceased in particular, instead conveying generic statements of religious belief, such as “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys,” and “You’re Going to Hell.”

As Chief Justice John Roberts, writing for the majority, pointed out:

The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.

In effect, the plaintiff argued that the doctrine espoused by the Westboro clan — that combat deaths were a divine judgment of punishment against a nation tolerant of homosexuality — was not directed at matters of public concern, but only a calculated personal aggravation to his grief-stricken emotional state. In short, it was all about him, or should be interpreted that way because of the time and place of its expression.

The court majority disagreed, in large part because of the 20-year history of Westboro’s exploitation of military funerals to draw attention to its beliefs. But more fundamentally, the court adhered to the long tradition to the effect that freedom of speech is essential precisely when the thing said or published is so repugnant to most people that they would use the force of the law — in this case a jury verdict — to silence or punish it.

It’s likely that this principle would be applied if and when there is a court challenge on First Amendment grounds to a law passed last year by the California Legislature, and effective January 1, allowing survivors of those killed in certain newsworthy circumstances to bar the use of the deceased’s names in connection with any political or other message, if the message is conveyed in a medium offered for sale — or to insist on a share in the proceeds of such sales.

The prompting event: sale of t-shirts showing, in the background, a fine print list of names of military service members killed in Iraq, superimposed with the slogan, BUSH LIED on the front and THEY DIED on the back.

Californians Aware opposed the bill because its obvious intent was not to protect the intellectual property rights of bereaved military families — a novel extension of a law designed to protect celebrities and their descendants from commercial exploitation of their names, images and the like — but to preclude controversial statements about use of the military from gaining emotional resonance by naming any actual casualties as examples of the costs of war.

But like so many measures reflecting sympathy with innocently bereaved persons as well as an impulse to distance oneself from a controversial opinion, it sailed through both houses and got an unhesitating signature from Governor Schwarzenegger.

Terry Francke is Voice of OC’s open government consultant and general counsel for Californians Aware. You can reach him directly at And add your voice with a letter to the editor.


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