Whether you believe the Constitution is a living document with inherent themes applied to the changing circumstances of American life, or whether you believe the Constitution is rigid and should only be interpreted according the expressed intent of the 18th century framers, we can all agree that the Constitution protects free speech (except apparently Samuel Alito).  The Supreme Court sent a resounding message this week when, in an 8-1 decision, it upheld the right of the Westboro Baptist Church to speak in the most offensive possible voice at the most sensitive of times, at military funerals.  As unfortunate and repulsive as this particular expression may be, the Court was able to set aside the content and recognize that what it was being asked to do was to punish a group of people for the content of their speech.  8 Justices said no, and the Phelps church can go on saying the things that everyone not in the Phelps church would rather they didn’t.

Albert Snyder, the father of a fallen soldier, had been awarded a huge cash settlement after the Phelps family, essentially the only members of the Westboro Baptist Church of Topeka, Kansas, picketed his son’s funeral.  The Supreme Court upheld the Fourth Circuit’s ruling overturning that award on the ground that the First Amendment protects the Church from actions for intentional infliction of emotional distress and intrusion upon seclusion.  Justice Roberts, writing for the majority, said “Westboro’s signs, displayed on public land next to a public street, reflect that the fact that the church finds much to condemn in modern society.”

The facts of case are important, and tend to get lost in the rhetoric.  The Phelp’s protest was over 1,000 feet from the church where the funeral was held.  They stayed in a space that was designated for them by local authorities (who may not have actually had authority to ask them to do so).  Other people holding positive signs and waving flags were all along the route of the funeral procession and right up to the doors of the church.  So under these circumstances, any sanctions imposed on the Westboro protesters would amount to nothing more than a content-based limitation on public speech.

Additionally, there was a hill located between the funeral procession and the protesters, which blocked the protesters from Mr. Snyder’s view as he passed. He was not even aware of the protesters’ presence until later that night when he turned on his television and saw coverage of his son’s funeral, including images of the protesters.  Under this set of facts, they could have been anywhere in the world protesting against the social and political situation in our country, and still been subject to liability for intentional infliction of emotional distress just because Mr. Snyder saw them on television.

The Court was very limited in its ruling.  There was no consideration of internet postings, and the Court left open the possibility that other types of speech directed in this way may still be Constitutionally vulnerable.  Additionally, the Court said that state laws regulating speech a certain distance from funerals were permissible as long as they were “content-neutral.”  Maryland has since passed such a law, and the Phelps protest would have complied with the law had it been on the books at the time.

Ultimately, regardless of how hurtful the speech may be, we need to recognize that the Constitution exists to protect exactly this type of speech, speech so outside the mainstream as to be offensive to the common conscience.  Many religious, political, ideological, and social groups have relied on the same protection throughout our nation’s history.  This is what free speech means: the right to say what you want in the public forum, no matter how unpopular that opinion may be.

Still, it shouldn’t be surprising that not all of the justices saw the Constitution that way.  Four liberal and four conservative justices were able to sign on the same opinion, expressing their deep regret for the pain of the Snyder family while striking down their award.  Justice Alito saw things differently.  “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.”  It’s not clear what commitment he is referring to, since he clearly believes that the Phelps’s speech should face sanctions because it was hurtful to the Snyders.  That sounds more like a commitment to be politically correct and not hurt anyone’s feeling than a commitment to free and open debate.  He was joined in his opposition to the majority opinion by Sarah Palin, although she seemed more concern that attempts to establish religion in public life were not equally protected.

Justice Roberts concluded his reading of the opinion by saying, “On the facts before us, 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.”  In this author’s opinion, the Court took the right course.