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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The Fourth Circuit, however, ruled that two categories of speech, when related to matters of public concern, are protected by the First Amendment, even if the target is a private citizen like Snyder. First are statements that fail to contain a "provably false factual connotation." The Westboro signs were hurtful and wildly inappropriate--"God hates you," for example--but you can't disprove God's hate.

The other category protected by the First Amendment that the appellate court cited covers statements that employ "loose, figurative and hyperbolic language." So the more abstract and outlandish the statement--"God hates the U.S.A."--the less likely it is that a reader will believe it. The appellate court also held that since Westboro's signs were related, however loosely, to issues like religion, gays in the military and the Iraq war, they were of public concern and thus protected by the First Amendment.

In rare instances when courts limit speech, they have long preferred that restrictions be based on the truthfulness, rather than the offensiveness, of the language. But Snyder's lawyers, and the attorneys general siding with him, contend that such a ruling creates a legal catch-22. A sign bearing a heinous message like "Thank God for dead soldiers" couldn't be more harmful to a parent at a military funeral, but it may enjoy First Amendment protection, since its message is not a statement of fact. The attorneys general say they have a strong interest in the case because it could have an impact on not only the constitutionality of the relatively new state laws that limit picketing at funerals but also the laws--some of which have been around for over a century--that let families of the deceased sue for intentional infliction of emotional distress. As these state officials put it in their brief, the appeals court "created a perverse incentive for emotional terrorists to be outrageous and extreme."

Aside from the sometimes cruel irony of First Amendment law, some specifics of Snyder's case could hurt him. At the jury trial, Snyder won an invasion-of-privacy claim. But how, Justice Ruth Bader Ginsburg wondered during the oral argument, could Snyder's privacy have been invaded if Westboro picketed in an area at the edge of the church's property, some 200 to 300 ft. (60 to 90 m) from the rerouted funeral procession, as directed by law enforcement? Snyder insists that the stress of dodging the Westboro group was an intrusion, that the protesters forced him to change the funeral route and to practically sneak into a church he attended for years. Privacy law, however, tends to require a stricter, "up in your grill" prying standard. The picketers were not inside the church, shouting above the priest. In fact, they left shortly after the service started.

Also, Snyder first saw what was on the protest signs on TV, not at the funeral. Yes, the Phelpses send out press releases about their upcoming protests, but should they be held liable for what the media choose to cover? And although the Phelpses posted an awful rant against Snyder on the Internet, they did not mail it to him or pin it on his door. He found it using Google.

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