Commentary: First Amendment protects despicable speech of Fred Phelps

The Kansas City StarOctober 5, 2010 

As awful as it seems, I'll be rooting for Fred Phelps when his case comes before the U.S. Supreme Court on Wednesday.

Holding my nose all the while, mind you. But Phelps and his evil spawn have as much right as other Americans to engage in perfectly awful forms of behavior.

Burn American flags, torch Qurans, spout vile, hateful things on street corners. They'll do just about anything for attention. Even picket military funerals, which is what's at issue here.

On Sunday, The New York Times called Snyder v. Phelps the "marquee case on the docket" of the court term that begins this week. Not since the Nazis threatened to march in Skokie has a free speech case provoked such spirited debate.

It's a tough one. Ask anyone what they think of the Phelps clan's habit of picketing the funerals of dead soldiers as a way to publicize their anti-homosexual agenda.

Almost universally, people would call it despicable.

But ask the average American whether members of Phelps' Westboro Baptist Church ought to be forbidden from engaging in that kind of behavior, and you'll likely get a more mixed reaction.

I suspect most would agree that the families of men and women who died in service of their country are deserving of special protections from hateful speech along a funeral procession route.

That's a politically popular position, anyway. Dozens of states have passed laws limiting the practice.

But our laws aren't, or shouldn't be, based on the will of the majority. They're supposed to comply with the Constitution.

And nowhere does it mention anything about military funerals.

The case at hand didn't arise from a legal challenge to the funeral procession laws. Rather, it concerns a civil suit brought by a Maryland man who said Phelps family picketers invaded his privacy and inflicted emotional distress on the day of his Marine son's funeral in 2006.

When a jury found in favor of the plaintiff, awarding $11 million in damages, Phelps thanked God and said "this will elevate me to something important."

Nothing could do that. But of importance are the basic principles that are at stake here. Uniquely Americans principles that some of our own citizens and many foreigners, even those with democratic traditions, have a hard time understanding at times.

As The Daily Mail in London put it the other day: "The court faces an 'only-in-America' quandary: whether the freedom of speech is so powerfully woven in the nation's fabric that it protects one family's right to vile and hurtful protest at the very moment of another family's most profound grief."

No matter which side of the argument you're on, the mere fact that we're having this debate is good for democracy.

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