General Litigation

Testing the Limits of the First Amendment

The new Supreme Court term started yesterday and while the docket is once again heavily laden with corporate issues, one of the earliest cases to be argued will be the one involving the Westboro Baptist Church’s practice of protesting at military funerals.  It is a case that is certain to add to the line of cases that tell us the difference between protected Free Speech and speech that can be regulated. I think Free Speech will win out, though the behavior of the church is reprehensible.

Facts of Case

The WBC, headed by alleged minister Fred Phelps,  protests at military funerals because they believe that 9-11 and all military deaths occur because God hates America’s stance on homosexuality.  They have several websites including and  At Matthew Snyder’s military funeral, the held up signs saying “God Hates You,” “You’re in Hell,” and “Too Late to Pray.”

WBC also posted an essay on its website entitled “The Burden of Marine Lance Cpl. Matthew A. Snyder.” In the essay, the WBC stated that the Snyders “raised [Matthew] for the devil,” “RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery,” “taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity,” and “taught Matthew to be an idolator.”

While Snyder won a multi-million dollar damage award at the lower court level, the Federal Appellate Court ruled that it was all protected speech and threw the case out. To literally add insult to injury, the family was ordered to pay the WBC’s $16,000.00 legal bill. So now the case is heading to the Supreme Court.  The issue will be whether the court below was correct in determining that WBC’s behavior was protected free speech under the First Amendment.

A Brief History of the First Amendment

To try and evaluate how the Supremes will rule on this case, it is helpful to take a quick look at the law in this area as it has developed over the centuries that America has existed.

The 45 words of the First Amendment haven’t changed since their adoption in 1791, yet a few recent cases will tell us how courts have limited its protection or disallowed any  attempts to restrict its reach.

Attempts to curb obscenity and pornography are the most prominent First Amendment cases and have reached mixed results. Of course, courts always uphold restrictions based on the age of the person shown in the material as that regulation is not directed at the “speech” of the material but at the harm society sees in child pornography. But the Court has left it to local courts and juries to decide what is obscene in their neighborhood.  This has led to several unusual results. For example, in 1993 Robert and Carleen Thomas were sent to prison by a Tennessee court on a number of obscenity charges for distributing sexually explicit images online and in videocassettes–even though they previously had been investigated in California, where local prosecutors dropped the matter, concluding the items would be legal in that state.

The Court also does not allow the unlimited use of “fighting words,” that is speech that is intended to incite violence. But courts have been careful to point out that the restrictions can’t be based on the content of what is said, but rather on the basis of the potential harm that the community is trying to prevent by limiting speech. That’s why it is a crime to make threats of violence for example; but it would be unconstitutional if the law only protected certain types of threats or threats directed only at a particular group.

“Hate speech” regulations are based on the notion that certain expressions denigrate its targets, who are seen as victims in need of protection. Curbs on hate speech are also seen as a means of enhancing the power of the racially oppressed and other less advantaged groups, by putting these groups on an equal footing.

Two federal court decisions addressed speech codes directly. In Michigan in 1989 and in Wisconsin in 1991, courts made clear that the First Amendment renders restrictions on speech — in these cases restrictions on expression of racist ideas and views — unconstitutional.  We are free to hate who we want in America and say so.

It is this last arena that the WBC case will likely fall. The most important case to look at and the one that the court will likely lean on in making its judgment is R.A. V. v. City of Minnesota.

RAV v. City of St. Paul, Minnesota

R. A. V. v. City of St. Paul, 505 U.S. 377 (1992) was a United States Supreme Court case involving the First Amendment. A unanimous Court struck down   St. Paul Minnesota’s Bias-motivated Crime Ordinance, and in doing so overturned the conviction of a teenager, referred to in court documents only as R.A.V., for burning a cross on the lawn of an African-American family.

The Minnesota law made it a crime to place anything on another ‘s property that the person would know “arouses anger, alarm or resentment in others  on the basis of race, color, creed, religion or gender.”  The law specifically named a burning cross and a swastika as two examples of such objects.  The Supremes said that the law had two problems. First is that it seeks to restrict language based on its content.  This, also called “viewpoint discrimination,” is offensive to the First Amendment.  The Court said there are other ways to address the issue giving the example of regulating burning of the American flag, not by passing a law that prohibits burning an American flag, but by passing a law that prohibits any open fire in the street.  The second problem is that someone who wants to arouse anger, etc., in another can do so freely as long as it is not for any of the state reasons. This creates a “sub-class” of protected citizens and that is only OK when there is a valid reasons to protect JUST that class (think of the issue with minors in pornography for example.)  Here,   St. Paul could not give a valid reason why some people were protected and others were not.

Likely Result in WBC Case

I think the court will come out on the side of  the WBC in this case.  Its important to realize that Scalia wrote the opinion in RAV and that he was joined by Thomas and Kennedy.  So 3 of the presently conservative 5 sitting justices ruled in favor of the First Amendment in that case.  Is placing a burning cross on an African American’s lawn any less reprehensible than the WBC’s conduct; I don’t think so. If the First Amendment protected that conduct, then it certainly protects this conduct.

We need to keep in mind that the real litigant in the WBC case is not the hateful WBC and its pastor.  It is the First Amendment and all of us that enjoy our ability to speak our minds. As disgusting and abhorrent as WBC’s behavior is, they are part of the sloppy and unwieldy fabric that make up our free democracy.  As the Supreme Court said in the RAV case:

“Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.”

Unfortunately, I predict that it will make a similar statement in this case as well.

Leave a Reply

Your email address will not be published.