Editor’s note: This editorial appears in today’s Philadelphia Inquirer.
Let us now thank Pastor Fred Phelps and the members of his Westboro Baptist Church for teaching us all a lesson.
As you probably already know, Phelps and his tiny congregation from Topeka, Kan., claim that God kills American soldiers because the United States tolerates homosexuality, and they have been loudly communicating that vile message for 20 years by picketing at military funerals.
Last week, the U.S. Supreme Court ruled 8-1 that the Constitution gives them the right to do so.
As Chief Justice John G. Roberts Jr. noted in the majority opinion, we Americans “have chosen … to protect even hurtful speech on public issues to ensure that we do not stifle public debate.” That reluctant acceptance of hateful speech may be a lesson in tolerance, but it’s not the lesson I was referring to.
We owe Fred Phelps our thanks for occasioning a different lesson – one that has to do with humility.
The First Amendment embodies a far-reaching vision of free speech, protecting even hateful and offensive words and acts of expression – flag-burning, Nazi marches through Jewish neighborhoods, images of extreme cruelty to animals. And in terms of legal doctrine, the outcome of this case may well have been clear-cut.
When the case was argued in October, many constitutional scholars said as much, correctly predicting the result. And much of the commentary since the decision has reaffirmed the notion that this was an easy (if unpleasant) call.
But despite the lopsided margin in Snyder v. Phelps, only a lawyer could see this case as simple. In terms of simple decency – a standard very different from the legal one – the outcome was far less predictable. By that standard, the lone dissenter in the case, Justice Samuel A. Alito Jr., was the one who got it right. And it’s really Alito to whom we should be grateful – for showing us that there are in fact two sides to this decision.
Every landmark case begins with a narrative, but the characters and their motivations quickly fade behind the legal principles involved.
Justice Alito’s passionate dissent in this case forestalls that process of erasure with an evocation of a father’s grief that will be remembered as long as the case is read.
Marine Lance Cpl. Matthew Snyder was killed in the line of duty in Iraq.
His father, Albert, who lives in York County, chose a Catholic church near the family’s former hometown, in Westminster, Md., for his son’s funeral. As Alito observed in his dissent, “Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right.”
They did that by picketing at Matthew’s funeral, carrying signs that read “God Hates the USA/ Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.”
All the justices agreed that these messages inflicted great pain on Albert Snyder. But for Roberts and the rest of the majority, what mattered most was that the Westboro protesters were communicating about public matters. They were assembled peaceably on public property, at some distance from the burial site, and they obeyed all ordinances and police directives.
“On the facts before us,” Roberts concluded, “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.”
Alito saw it differently, focusing instead on that pain. He maintained that in choosing to demonstrate at Matthew Snyder’s funeral, the Westboro protesters were intentionally inflicting “severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.”
And that, Alito argued, should be punishable. “In order to have a society in which public issues can be openly and vigorously debated,” he wrote, “it is not necessary to allow the brutalization of innocent victims.”
It’s the difficulty of choosing between those two principles that should give us pause, and teach us humility.
And we should take away something else from this case. In the end, the law’s bright lines can establish the First Amendment’s farthest reaches.
But they cannot by themselves establish a just and civil society.
To counteract the vicious certainties of Phelps and the members of his church, we also need the sense of uncertainty with which this case leaves us.