When hateful speech is protected

Voting 8 to 1, the nine-member US Supreme Court upheld the right of the members of the Westboro Baptist Church to picket the funerals of US soldiers killed in the line of duty and hold signs displaying hateful language, such as "Thank God for Dead Soldiers," "Fags Doom Nations," and "You're Going to Hell," among others. Fred Phelps, founder of the denomination, claims that God is punishing the United States, such as the death of soldiers, for its tolerance of homosexuals.

The case, Snyder v. Phelps (March 2, 2011), emanated from a suit by Snyder, father of Marine Lance Corporal Matthew Snyder who was killed in Iraq, claiming damages for the emotional distress and invasion of privacy inflicted upon him and his family as a result of the picketing by Phelps and his fellow parishioners during Matthew's funeral. The jury awarded millions of dollars in damages to Snyder, prompting Phelps to appeal on the ground that the decision violated his First Amendment right of free speech.

There is here an apparent clash between the rights of the bereaved to privacy and respect for their dead and the right of the picketers to free speech.

The almost unanimous decision turned on a determination of whether the picketers' speech involved a matter of public concern. A speech is said to be of public concern when it relates to a matter of social, political and other concern to the community or it relates to a matter of general interest to the public. The Court found this to be present in the picketers' case as their speech relates to the conduct of the United States and its policies as a nation, particularly in relation to homosexuals.

According to the Court, speech on a matter of public concern, no matter how distasteful or controversial, occupies the highest rung in the hierachy of First Amendment rights values. If the speech - its content, manner and context - is of public concern, then it will enjoy special protection under the First Amendment.

The Court stressed that the outrageousness or inappropriate character of the speech is irrelevant in determining whether or not speech is relating to a matter of public concern. Chief Justice John Roberts, who penned the decision, eloquently put it this way:

"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. 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 upholding the picketers' right, the Court was careful to point out that the Westboro parishioners neither interfered with the funeral nor were violent. It also empahsized that the picketers were on a public place: on the streets, which have historically been associated with the exercise of free speech.

This decision clearly demonstrates the importance the US legal system accords to free speech. While the US is known to be very protective of, and highly values, its servicemen, the Court unambiguously gave greater protection to the free speech rights of a small group of rabid churchgoers as against the plea for respect and dignity of a fallen soldier's grieving family that has been offended, if not outraged, by the picketers' insentivity and hateful language.