Being a Judge Means Following the Law, No Matter How Distasteful

Last year's Michigan Supreme Court race featured a fairly clear choice between rule-of-law judges and empathy judges.  The former discern the law and apply it as they find it; the latter rule based on personal whim and feeling, contorting the law to fit their preordained results. 

Sometimes, the rule of law is painful to watch, but it is in these moments when it is most needed.  Judges don't get to make only the easy calls; they have to make tough, occasionally excruciating decisions.  This is the situation that confronted the U.S. Supreme Court in the case of Snyder v Phelps, the anxiosly awaited First Amendment case addressing picketing by the Westboro Baptist Church.  The Court issued its opinion today, available here.

Here are the facts, from the case syllabus:

For the past 20 years, the congregation of the Westboro Baptist Church has picketed military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in America’s military. The church’s picketing has also condemned the Catholic Church for scandals involving its clergy. Fred Phelps, who founded the church, and six Westboro Baptist parishioners (all relatives of Phelps) traveled to Maryland to picket the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty. The picketing took place on public land approximately 1,000 feet from the church where the funeral was held, in accordance with guidance from local law enforcement officers. The picketers peacefully displayed their signs—stating, e.g., “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys,” and “You’re Going to Hell”—for about 30 minutes before the funeral began. Matthew Snyder’s father (Snyder), petitioner here, saw the tops of the picketers’ signs when driving to the funeral, but did not learn what was written on the signs until watching a news broadcast later that night.

Snyder filed a diversity action against Phelps, his daughters—who participated in the picketing—and the church (collectively Westboro) alleging, as relevant here, state tort claims of intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. A jury held Westboro liable for millions of dollars in compensatory and punitive damages. Westboro challenged the verdict as grossly excessive and sought judgment as a matter of law on the ground that the First Amendment fully protected its speech. The District Court reduced the punitive damages award, but left the verdict otherwise intact. The Fourth Circuit reversed, concluding that Westboro’s statements were entitled to First Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric.

Held: The First Amendment shields Westboro from tort liability for its picketing in this case.

Can there be anything more distasteful and sickening than the hate-filled rants of these Westboro kooks?  Does the First Amendment really protect this bigotry and invective?

No and yes, respectively.

Legally, this turned out not to be even a close question -- the margin on the Court was 8-1, with only Justice Alito dissenting.  One has to concede admiration for Chief Justice Roberts, who authored the majority opinion and who, I am certain, wishes he had been able to lead a unanimous court in this important case.  Chief Justice Roberts concluded his opinion this way:

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

Undoubtedly, there will be many who decry this decision and call for, oh, something to be done.  But what?  Congress can pass a law making Westboro's conduct illegal, but such a law would itself be unconstitutional under the principles outlined in the Snyder decision.  

 

The First Amendment makes blogging possible.  Yes, it protects flag burning and Nazi marches, but it also prohibits speech codes and attempts to muzzle a free press and the free expression of ideas that characterizes healthy political discourse. 

 

The Snyder decision is not an endorsement of Westboro or its lamebrained antics; rather, it's a example of the majesty and breadth of the First Amendment and a reminder that the rule of law can be extremely difficult.  It is at these times, at the outer edges of freedom, that we must demonstrate our commitment to the Constitution and the exraordinary framework the Founders gave us.

And we must thank God for the Constitution and pray for all the men and women in our military.  And while we're at it, let's pray for the misguided souls at Westboro, that God may touch their hearts and minds, showing them His way.