Right To Be Offensive

In the court of public opinion, the Rev. Fred Phelps and his followers are judged to be contemptible for picketing the funerals of American servicemen and women. And Albert Snyder, the father of one of those fallen veterans, is deserving of sympathy for having to endure such a profane display on perhaps the most emotionally wrenching day of his life.

In constitutional law, however, even vile expressions of opinions should receive First Amendment protections.

The Supreme Court this week heard oral arguments in Snyder v. Phelps. Snyder, father of Marine Matthew Snyder who was killed in Iraq in 2006, sued Phelps and other members of his Westboro Baptist Church after they picketed near his son's funeral and posted commentary about it online. Snyder contends that the picketing signs and the online material invaded his privacy and caused him emotional distress, and he has sought damages from Phelps.

A district court awarded Snyder $5 million in compensatory and punitive damages, but a federal appeals court reversed the decision on the grounds that Phelps' speech is constitutionally protected.

The Supreme Court must decide whether speakers should be held liable for intentionally inflicting emotional distress on their audience.

In 1988, the court ruled unanimously that the Rev. Jerry Falwell could not sue Hustler magazine for publishing an advertising parody that suggested he had had a drunken, incestuous sexual encounter with his mother. Although the gag might have inflicted emotional distress on Falwell, the court ruled that because he was a public figure the magazine had a First Amendment right to publish it and could not be sued for damages.

Snyder, though, and all the other families of fallen veterans whose funerals Phelps picketed are private citizens.

The appellants argue that the court should carve out a "funeral exception" to the First, giving less protection to speech aimed at non-public figures engaged in private activities.

As much as we sympathize with the Snyders and their allies, legal liability should not be established based on who might be offended.

Newly seated Justice Elena Kagan on Wednesday expressed her skepticism of such control by quoting from the court's Falwell opinion:

"'Outrageousness' in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views or perhaps on the basis of their dislike of a particular expression."

In other words, the content of the speech should not be sanctioned. States and locales can pass laws that regulate picketing funerals and other events, but they must be objectively content-neutral. Speech cannot be legally actionable simply because some might find it offensive. Indeed, the First Amendment was created to protect speech that the majority considered objectionable.

In a time when political correctness has heightened sensitivities to certain words, phrases and ideas, it's not difficult to compile a lengthy list of expression that, if the court ruled for Snyder, could be subject to litigation. The threat of multi-million-dollar awards for bruised sensibilities would be sufficient to silence many speakers.

As despicable as Phelps' actions are, holding one's nose and giving him a victory in this case would do less harm than allowing his tactics to weaken constitutional protections for everyone.

REPRINTED FROM THE PANAMA CITY NEWS HERALD.

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