By Jamie Raskin, a professor of constitutional law and the First Amendment at American University's Washington College of Law and a Democratic State Senator in Maryland serving on the Senate Judicial Proceedings Committee.
First Amendment principles are best tested at the extremes, which is why the history of free speech jurisprudence is filled with passionate extremists of all stripes: zealots, dissidents, visionary conscientious objectors, and fanatical bigots. Where would the freedom of expression be without reviled anti-war socialist and anarchist agitators, Klan propagandists and weekend fascists, recalcitrant Jehovah's Witnesses, civilly disobedient civil rights protesters, anti-abortion fanatics, flag-burners from the Revolutionary Communist Youth Brigade, narcissistic capitalist pornographers, and middle-school Quaker peace activists who refuse to take off their black armbands?
Into this schizophrenic pantheon of racist sinners, ideological firebrands and revolutionary saints strides now the appalling Reverend Fred Phelps, whose ideologically inbred Westboro Baptist Church has made it a hobby to travel all over America picketing at military funerals and broadcasting a weird mix of homophobia and anti-Catholic, anti-Jewish and anti-American propaganda. The signs carried by forlorn members of the Phelps family say: "Fags Doom Nations," "God Hates the USA/Thank God for 9/11," "Pope in Hell," "Fag Troops," "Semper Fi Fags," "Thank God for Dead Soldiers," "Priests Rape Boys," and "God Hates Obama."
It's the special effect of maniacs like the Rev. Phelps to infuriate everyone in his path, and his only real contribution to public progress may be to have antagonized both the gay and lesbian community seeking to overturn the military's "don't ask, don't tell" policy and right-wing Senators who have traditionally thought there is no place for gay people in the armed services. Perhaps the evidence of such rank religiously based homophobia will encourage these conservatives to rethink their views.
In any event, Snyder v. Phelps provides an opportunity to restate some First Amendment essentials. Obviously people have a right to say racist, sexist, unpatriotic, stupid and homophobic things; moreover, they have a right to say them in public in a way that offends other people and gets them mad. As Justice William Brennan put it in Texas v. Johnson (1989) the flag-burning case, "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
This principle applies regardless of whether the state would criminalize such speech directly or punish it through a civil tort action, which is what happened in this case when a jury awarded the family of Marine Matthew Snyder, who was killed in the line of duty, nearly $11 million in damages against Phelps for intentional infliction of emotional distress and invasion of privacy relating to his "God hates fags" picket at Snyder's funeral in Westminster, Maryland.
The Supreme Court has repeatedly found that the First Amendment is offended when courts award civil damages against people because of their speech. That is the story of New York Times v. Sullivan (1964), where the Court stopped the Alabama judiciary from using libel suits to stifle criticism of official racism. And it is the story of Hustler v. Falwell (1988), in which the Court denied fundamentalist preacher Jerry Falwell's tort damages against Larry Flynt and Hustler magazine for intentional infliction of emotional distress when the magazine published a truly outrageous pornographic cartoon parody starring Falwell and his mother. I know people who think that there must be a legal cause of action every time they are offended, but they should recall what Lenny Bruce said: "My parents came to America to be offensive!"
The only new factual wrinkle added by Snyder v. Phelps is the live protest at a funeral and this is the matter that the Court can usefully clarify for us. The proper resolution of this problem turns on the doctrine of "reasonable time, place, and manner restrictions" governing speech in public places. The Court has upheld such restrictions so that other social activities may proceed at the same time as civic protest. Thus, it's perfectly constitutional to stop issuing protest permits after 10:00 PM across from the White House so that the president's family can sleep, and the Court has upheld decibel restrictions for rock-and-roll rallies in Central Park to permit other Park activities, like nursery schools and Shakespeare performances, to go on at the same time.
I believe that state legislatures and city councils have a compelling interest in passing laws that create a reasonable zone of quiet, solitude and solemnity around funerals. Such laws might impose physical distance requirements and sound regulations that are content and viewpoint-neutral but robust enough to prevent disturbance of the actual funeral service.
So the real question is whether the Rev. Phelps and company were lawfully in a public place when they picketed-and they were, having followed police orders and remained 1,000 feet away. Perhaps that rule of distance is not strict enough to prevent audible heckling and interruption of the memorial service. If so, we should figure out the specific rules we need to vindicate the powerful social interest in having funerals free of disruption. As a Maryland legislator, I would be delighted to work on such legislation.
In the meantime, however, we cannot silence the utterly annoying Rev. Phelps except by promoting the values that he despises. Indeed, his deranged prejudice against gays is best combated in society by removing discriminatory laws and policies that codify it -- like "don't ask, don't tell" -- rather than by authorizing everyone to sue when we are confronted by the ugly reality of other people's fanaticism.
[image via Burns!]