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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Someone else tried to pepper-spray the Westboro members. But the spray ended up hitting counterprotesters who had assembled to drown out Westboro's message. The people who had been waving the American flag--rather than stomping on it Phelps-style--hit the grass in tears. The Westboro crowd crowed.

Asking for Common Sense

Only one thing boils Al Snyder as much as Fred Phelps does: the media and their support of Westboro's free-speech claims. In July, several news organizations, including the Associated Press, the New York Times and Dow Jones, submitted an amicus brief backing Phelps' right to protest. (Time Inc. did not.) When it comes to free speech, the media essentially have no more rights than the average speaker on the street does. The concern is that if Fred Phelps can be held liable for offensive speech, what prevents a news outlet from being sued for commentary that someone finds hurtful?

Snyder didn't sue the TV station that aired the protest footage from his son's funeral, but he did include in his claims against the Phelpses the emotional distress he suffered a month after the funeral, when he came across an online entry titled "The Burden of Matthew Snyder." After his son died, Snyder took to Googling Matt's name, finding comfort in the praise posted by friends and fellow troops. But when he clicked on this particular link, it took him to a page on Westboro's website that said that since he, Al Snyder, and his wife committed the sin of divorce and brought Matt up in "the largest pedophile machine in the history of the world, Roman Catholic monstrosity," as parents they had "raised him for the devil." Snyder threw up--and cried for three hours.

Snyder says he is disgusted by the news industry's position on the case. "Most of these people have never served in the military, have never lost a child at war," he says, his face flushed, his voice rising. "And none of them, not one of them, has ever had to put up with the Phelpses at one of their children's funerals. You come back and tell me this is freedom of speech after they do this to your kid."

I shared Snyder's statement with David Tomlin, associate general counsel for the Associated Press, who responded: "Well, most of that is beside the point." Tomlin, no fan of the Phelpses, explained how the First Amendment often forces people to question if it's worth the ugliness it so often exposes--and protects. It was Justice Oliver Wendell Holmes who wrote that the Constitution was not designed to protect the thought we agree with but "the thought that we hate." Even Snyder's side concedes that it's difficult to win cases seeking to restrict speech. His attorneys are asking the Supreme Court to weigh Westboro's free-speech rights against Snyder's First Amendment rights to exercise his religion and assemble peacefully--in other words, his right to conduct a funeral without disruption. "There is case law that says you have to look at the context of the situation," says Sean Summers, who argued Snyder's case before the court. "We're just asking for common sense."

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