A few Supreme Court justices struggled Wednesday to defend the free speech rights of the utterly contemptible Westboro Baptist Church. Their discomfort could have profound First Amendment ramifications for all types of expression.
The court was asked to reinstate a $5 million verdict against the church for picketing the 2006 funeral of a U.S. Marine. Church members believe American military deaths are God's punishment for the country's tolerance of gays. At its protest of services for Lance Cpl. Matthew Snyder, the Westboro flock held signs that read "Thank God for dead soldiers" and "You're going to hell," among other vicious claims. The church's website then published a poem that attacked Lance Cpl. Snyder's parents for the way they raised him.
So the man's father, Albert Snyder, sued the church for intentional infliction of emotional distress and was awarded $11 million. The verdict was reduced to $5 million, then thrown out on appeal because the rhetorical attacks on the family, while heinous, clearly are protected by the Constitution.
Justice Ruth Bader Ginsburg said the court must decide whether the First Amendment tolerates "exploiting this bereaved family." Justice Stephen Breyer said he was troubled by the poem because it was a "very obnoxious" attack.
"To what extent can they put that on the Internet?" Justice Breyer asked during arguments. "I don't know what the rules ought to be."
He doesn't know? He certainly should.
The First Amendment was conceived to protect precisely this kind of speech -- words that most people not only disagree with, but find deeply offensive.
Albert Snyder has the sympathy of the nation. No one should have to endure the death of a son, then have that loss ridiculed in such a nasty, public way. But if the Supreme Court sides with Mr. Snyder, every protest, rally and picket in this country will be subjected to some arbitrary test to determine how offensive the language is, and how the targets of those protests are made to feel.
The best way to deal with offensive speech: Either ignore it or confront it with more speech. The court must hold its collective nose and rule in favor of Westboro Baptist Church.