The lone dissenter to Thursday’s Westboro Baptist Church decision by the Supreme Court was Justice Samuel Alito. While I appreciate the majority’s protection of free speech rights, I am finding myself agreeing with Alito on this and another free speech ruling — and disagreeing with major news organizations that filed a brief supporting Westboro’s free speech rights.
In yesterday’s ruling, the court found, in an 8-1 decision, that Westboro Baptist Church has the right to protest military funerals, no matter how distasteful that is to the majority of Americans — and threw out a multimillion-dollar award against the church.
Last year, in another 8-1 decision related to free speech, Alito disagreed with the majority and said that so-called “crush” videos that depicted the killing of puppies were not protected. While the majority said that the behavior was prohibited by animal cruelty laws, Alito compared these videos to child porn, another form of non-protected speech.
In his dissent in the Westboro case, Alito said when the intent of speech is to hurt another individual, especially when that person is vulnerable on the day of a child’s funeral, that speech crosses a line.
I have been the target of a Phelps protest when the group came to Dallas to picket my synagogue last year.
We certainly were not in a vulnerable position. We did not feel threatened in any way by the vile crap coming out of the mouths of the Phelps women (and that is the only way I can describe their speech). We were in no way hurt by their words. In fact we used the occasion to raise money and did everything we could to make them look like the bigoted fools they are. And we framed a picture of one of their signs that read “Your rabbi is a whore” for our rabbi.
Was this insulting? Sure. Did we feel threatened? Vulnerable? Attacked? No. We were in a position to laugh at the Phelps clan’s stupidity.
Justice Alito was in no way addressing that sort of demonstration by the group.
That same day, the Kansas-based bigots picketed the Dallas Holocaust Museum, and the staff there did feel threatened and assaulted. However, with police protection and hundreds of friends standing by them, they were not in danger — and that speech should also not be blocked. And again, they turned a simply bad situation into larger-than-usual museum attendance that afternoon.
Again, Justice Alito was not suggesting limiting that sort of speech by the group.
He was addressing a very special situation. He believes that the father of the soldier killed in Iraq was singled out for attack at a moment when he was particularly vulnerable. A personal attack during the funeral of a close relative is a very special situation that merits some degree of protection. This is one particular instance where we, as a society, need to tell a few people to shut the hell up for a few minutes. Spew your hatred later or in a different forum.
And this ruling is particularly relevant to the LGBT community in Texas this week. In Austin, an anti-bullying bill was debated in committee on Tuesday.
Alito’s dissent certainly supports stopping verbal attacks against an at-risk child or teen, but I think the majority opinion would allow it. After all, the bully has a right to free speech and stopping the bully would infringe on his rights.
I see no difference between the child bullied in school and the father being bullied by the Phelps gang at his son’s funeral. The court majority claims that the attack was public discourse — despite signs that read “Your son …” Bullies could claim public discourse in their right to disapprove of homosexuality, even if the result is gay kids, or those perceived as gay, killing themselves.
I whole-heartedly agree with you. Your dissent seems even more articulate than the quotes I’ve heard from Alioto’s. Did he even make the cyber-bullying laws connection to this case?
Jehovah’s Witnesses pursued court decisions to get in your face at the door steps,these same actions uphold rights of infamous hate church.
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Danny Haszard https://www.dannyhaszard.com
my page more on Jehovah’s Witnesses harassment
David,
I think you are a phenomenal writing on this blog. This time, however, I much disagree with you. As much I want to find a reason to justify limiting Westboro’s speech, I do not think it is accurate to compare Westboro’s protest to that of a school yard bully the target of legislation here in Texas.
First, as the majority pointed out, a major factor to consider is whether the speech is a matter of public or private concern. 562 U.S. ___, ___ (2001) (slip op., at 5). I don’t believe that the Phelps have any particular concern for any of the funerals or events at which they protest. When viewed in its entirety, their speech always centers on their (misguided) belief that America suffers because of its tolerance of homosexuality. And while the speech was, of course, very personal for the Snyder, the protest was not about disclosing personal or private facts about Matthew, but rather a larger political belief. Conversely, a school bully’s speech is not a matter of public concern. Whether Sally is fat, or Timmy is gay, or Bobby is a geek are expressly personal in nature, and the bully has no particular desire to express a larger view of concern to the public. For example, the majority pointed out that a person’s credit report is a matter of private and not public concern. Id. at 7 (citing Dunn & Bradstreet, Inc. v. Greenmoss Builders, Inc., 442 U.S. 749, 762 (1985). If a bully preferred to protest outside a school board meeting that the student body was too fat, then that would likely be protected by the First Amendment, where calling Sally fat in front of homeroom class is not the same thing.
Secondly, it’s important to consider time, place, and manner restrictions which have previously been articulated by the Court. .Id at 10 (citing Clark v. Community of Creative Non-Violence, 468 U.S. 288, 293 (1984). A bully does not regard appropriate times or places when bullying victims. Often times bully prey in an air of secrecy to avoid sanctions, and thus, furthers the notion that the bully isn’t interested in conveying a public message. Westboro held its protest on a specified plot of public land, did not interrupt the funeral itself, and stayed verbally silent while holding their signs. Had they (like a bully) chased Mr. Snyder home from the funeral and poked him with their pickets, the Court’s decision would have been different. Westboro complied with the 100 foot distance requirement of Maryland law. Id. at 11, fn. 5. A bully’s assaultive or slanderous behavior is still governed by state law claims, and not protected by the First Amendment simply because the bully wants to convey a private insult.
The interesting issue for me is that Alito, perhaps the most conservative justice on the Court, will likely do anything to find a reason to rule against GLBT rights in upcoming cases. This decision is based on his like of the military – not an indication of his belief that Westboro’s message is so hateful it is undeserving of First Amendment protections.
David, you bring up some terrific points, but I’ll leave it off with Voltaire here, who said, “I may disagree with what you say, but I’ll defend to the death your right to say it.” We all detest Westboro, but in their freedom to express their (ridiculous) views, so do we derive our right to share our own.
Not even in the U.S. do we have absolute free speech, there have always been limits of some sort. The oft-used example of shouting “Fire!” in a crowded theater comes to mind. Then there are laws concerning enciting a riot or creating a disturbance, both limit free speech. So why can’t limits be placed on actions taken at or near a funeral?
Even the Bible, which these bigots claim to uphold, indirectly addresses this in Ecclesiastes 3 verses 1 to 8:
1.To every thing there is a season, and a time to every purpose under the heaven:
2.A time to be born, and a time to die; a time to plant, a time to reap that which is planted;
3.A time to kill, and a time to heal; a time to break down, and a time to build up;
4.A time to weep, and a time to laugh; a time to mourn, and a time to dance;
5.A time to cast away stones, and a time to gather stones together; a time to embrace, and a time to refrain from embracing;
6.A time to get, and a time to lose; a time to keep, and a time to cast away;
7.A time to rend, and a time to sew; a time to keep silence, and a time to speak;
8.A time to love, and a time to hate; a time of war, and a time of peace.
Even God says there is a time to mourn, how can they, as (allegedly) good Christians, not recognize that a funeral is not the proper time for their rhetoric?
Amen Karen. Evil men will use hippocrasy and the name of God to further their agenda.