Should the Highest Court Protect the Ugliest Speech?

A religious group pickets soldiers' funerals and taunts their families. Now the Supreme Court will decide if the First Amendment protects this kind of hatemongering

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Ryan Pfluger for TIME

Albert Snyder, at his home in York, Pa., rerouted his son's funeral procession to try to avoid the strangers who flew more than 1,000 miles to brandish slogans like "God hates you."

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In the run-up to the Supreme Court argument in Snyder v. Phelps, attorneys general from 48 states and the District of Columbia--everywhere except Maine and Virginia--have sided with Snyder. They filed an amicus brief noting that "a war is a matter of public concern, but that does not give the Phelpses license to attack personally every soldier and every soldier's family." Forty-two Senators--including a rare concurrence of Harry Reid and Mitch McConnell--filed a brief on Snyder's behalf, arguing that the Fourth Circuit erred in overturning the verdict on the broader standard used in defamation claims against public figures. Snyder, they noted, is a private citizen.

On the other side, the ACLU and other free-speech advocates are supporting Westboro's right to offend, as are many news organizations. Chief among their arguments: having changed the route of the procession, Snyder did not directly encounter the picketers or any of their signs at his son's funeral. He saw and read about them afterward while watching the news and searching online.

Now the Supreme Court will wade through the tangled rulings appellate courts have issued in recent years regarding funeral protests. The Fourth and Eighth Circuits upheld the Phelpses' right to picket funerals, but the Sixth Circuit declared the opposite. Citing a 1988 Supreme Court decision that protesters cannot picket people's homes, the Sixth Circuit extended this so-called captive-audience doctrine to funerals, ruling that "unwanted intrusion during the last moments the mourners share with the deceased during a sacred ritual surely infringes upon the recognized right of survivors to mourn the deceased."

Military funerals not only warrant that right but carry the added weight of mourning troops' ultimate sacrifice for their country. If Westboro protesters showed up at the funeral of a serial killer, they'd still be criticized: even a monster's family deserves that moment of peace. But the Phelpses have chosen to target military funerals in particular to draw the most attention, make the greatest impact and, in the process, cause the deepest wound as they celebrate death as if it were a sporting event. The Phelpses have developed a special brand of what 49 attorneys general call "psychological terrorism." Is the First Amendment really designed to protect that?

"Thank God for Dead Soldiers"

The Supreme Court has a long and sometimes painful history of protecting offensive speech. Although the court has famously said that you can't shout "Fire!" in a theater if there is, in fact, no fire and that the First Amendment does not protect people who intentionally incite violence or panic, their words must withstand the court's "clear and present danger" test. That's why in 1969, in Brandenburg v. Ohio, the court declared that a Ku Klux Klan leader could not be fined or imprisoned for hate speech at a rally that did not encourage immediate acts of lawlessness. Likewise, in 1977, the court affirmed that neo-Nazis could march in Skokie, Ill., a town that was home to many Holocaust survivors, because its residents would not be incited to riot by the sight of swastikas on parade. By that same logic, it seems unlikely that the court would conclude that seeing a Westboro protester holding a "Thank God for dead soldiers" sign at a military funeral would lead to public mayhem.

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