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Getting up in your grille: How close is too close for free speech?


Westboro Baptist Church members protest outside the U.S. Supreme Court Wednesday. (AP Photo/The Carroll County Times, Dave Munch)

The U.S. Supreme Court’s ultimate decision in the case of Snyder v. Phelps may come down to a question of distance, literally and figuratively.

Fred Phelps is the pastor of Westboro Baptist of Kansas, the homophobic family cult that pickets the funerals of slain soldiers in a weird and distorted attack on the don’t ask-don’t tell policy. Albert Snyder is the father of a slain Marine whose funeral was the target of such picketing.

Outside of Snyder’s solemn funeral, Westboro acolytes paraded with signs reading "God Hates the USA," "Fag troops," "Semper fi fags," and "Thank God for dead soldiers."

From reading the transcript of the oral arguments made Wednesday it sounds like the justices may be focusing on the question of when free speech is too up close and personal.

Take this exchange between justices and Margie Phelps, the lawyer daughter of Fred who argued for the church’s free speech rights:

Jstice Samuel Alito: So let me — let me give you this example. Suppose someone believes that African-Americans are inferior, they are inherently inferior, and they are really a bad influence on this country. And so a person comes up to an African-American and starts berating that person with racial hatred. Now is that in — this is just any old person on — any old African-American on the street. That’s a matter of public concern?

Phelps: I think the issue of race is a matter of public concern. I think approaching an individual up close and in their grille to berate them gets you out of the zone of protection, and we would never do that.

Justice Anthony Kennedy: But that’s simply …

Justice Antonin Scalia: Excuse me …

Kennedy: That simply points out that all of us in a pluralistic society have components to our identity; we are Republicans or Democrats, we are Christians or atheists, we are single or married, we are old or young. Any one of those things you could turn into a public issue and follow a particular person around, making that person the target of your comments; and in your view because this gives you maximum publicity, the more innocent, the more removed the person is, the greater the impact — the Justice Alito hypothetical in — in — in the grandmother case. So I — I think — I think your — your public concern issue may — may not be a limiting factor in cases where there is an outrageous conduct and where there should be a tort.

Phelps: Well, but again, this Court has given substantial, longstanding protection to speech on public issues, and how could it be gainsaid that the dying soldiers is not on the lips of everyone in this country? And it is a matter of great public interest and why they are dying, and how God is dealing with this nation. …

So, dear commenters, you may well be within your rights to berate conservativism and capitalism as evil thieves who steal the bread from the mouths of the children of the proletariate, but get up in my grille and start slapping me with your assorted epithets and invectives … we may not even have to bring up the fighting words doctrine.

Read more on this topic in my Sunday column.

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