On Wednesday, the Supreme Court struck down a jury award against Fred Phelps of the Westboro Baptist Church. In Snyder v. Phelps, Mr. Phelps had been sued for “emotional distress” by Albert Snyder when his Westboro Baptist Church group (WBC) picketed the funeral of Snyder’s son, Lance Cpl. Matthew Snyder, who had been killed in Iraq. Mr. Phelps and his Westboro Baptist Church group showed up near the church where the funeral was held, displaying signs such as “Thank God for Dead Soldiers,” “Fags Doom Nations,” “God Hates Fags” “Priests Rape Boys,” and “Pray For More Dead Soldiers.” The vote was 8-1, with Justice Samuel Alito casting the lone dissent. It was a dissent for which Justice Alito is getting considerable criticism. Yet there may be more to Mr. Alito’s dissent than meets the eye.
First, some background. Mr. Phelps and his unaffiliated church, which includes seventy members of his extended family, have routinely picketed the funerals of dead soldiers for years, disrupting close to six hundred of them. The WBC claims to have held over 41,000 protests since 1991, and while their primary focus is military funerals, they were present at the funeral services for Elizabeth Edwards, Coretta Scott King, and Michael Jackson. They were also going to picket the funeral of Christina Green, the 9-year-old girl killed during the attack on Congresswoman Gabrielle Giffords, but relented when Mike Gallagher allowed them to appear on his nationally syndicated talk radio show.
Publicity above all else, as Mr. Alito points out, is their primary objective:
The more outrageous the funeral protest, the more publicity the Westboro Baptist Church is able to obtain. Thus, when the church recently announced its intention to picket the funeral of a 9-year-old girl killed in the shooting spree in Tucson–proclaiming that she was ‘better off dead’–their announcement was national news, and the church was able to obtain free air time on the radio in exchange for canceling its protest.
Mr. Alito considers such picketing, at least in this particular case, beyond the limits of protected speech. “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” he wrote.
Justice Alito may have a valid point when one examines the first nationally publicized funeral protest involving the Westboro Baptist Church. The group came to prominence in 1998 when they picketed the funeral of Matthew Sheppard, a man allegedly beaten to death for being gay. Sheppard’s death was the impetus for the “Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act,” signed into law by President Obama in 2009. This statute gives the Justice Department the ability to investigate and prosecute crimes motivated by race, color, religion, national origin, and disability. As with many hate crime laws around the nation, the statute allows federal prosecutors to tack additional penalties on top of those ordinarily imposed, provided they can prove the perpetrator acted with malice regarding the aforementioned categories that might apply to the victim.
Presumably this law is constitutional. Yet how can one be certain about what constitutes a hate crime without some element of derogatory speech involved? (Perhaps one could make a case that an individual dressed in a white robe and hood assaulting a black American can be assumed to belong to the Ku Klux Klan, but absent a confession by the perpetrator that he is, or any verbal exchange between the two men, how would it be possible to state beyond a reasonable doubt that such was a hate crime?) And if derogatory speech, or “vicious verbal assault,” as Mr. Alito characterizes the actions of the WBC, is something that can be considered an element of criminality with respect to hate crimes, how does it become protected with respect to funeral protests?
As it currently stands, it is theoretically possible that the same person free to hold up a sign with the word “fag” on it at a funeral can be given additional punishment for saying the word “fag” during the commission of an offense against a homosexual.