Westboro Blues

I never thought I'd find myself praising Supreme Court Justice Samuel Alito, but yesterday he proved himself to be a profile in courage by dissenting in a case decision that allows the Westboro Baptist Church to continue its picketing of military funerals. The Court ruled that the Topeka-based religious group, which believes that American servicemen are condemned to die in battle because of this country's increasingly tolerant policies toward gays, has the right to protest at funerals under the First Amendment. Chief Justice John Roberts wrote for the majority: "What Westboro said, in the whole context of how and where it chose to say it, is entitled to 'special protection' under the First Amendment and that protection cannot be overcome by a jury finding that the picketing was outrageous."

Justice Alito was the only dissenter.

The case, Snyder vs. Phelps, was instigated by Albert Snyder, whose son Matthew was a Marine killed in Iraq in 2006. Westboro picketed at that funeral. Albert Snyder sued Westboro leader Fred Phelps and two of his daughters (the Westboro Baptist Church is dominated by the Phelps family; some would say it is the Phelps family) for defamation, invasion of privacy, and intentional infliction of emotional distress, being angry that he could not have his son laid to rest without being left alone. A federal court found in favor of the Snyder family in 2008 and ultimately awarded them $5 million for damages, but the church appealed; a federal appeals court then overturned the lower court's ruling in September 2009 and ordered Snyder to pay the church's legal costs. Liberals were appalled at all of this, of course, but so was Bill O'Reilly, who helped raise money for the Snyder family to pay these fees. The case was brought before the Supreme Court in 2010.

In his dissent, Alito correctly noted the limits to free speech as well as the right to privacy that the Snyders and other families are entitled to in holding funerals for their military service relatives killed in the line of duty. "Our profound national commitment to free and open debate," Alito wrote, "is not a license for the vicious verbal assault that occurred in this case."

The Westboro Baptist Church - not recognized by any of the major Baptist conventions - may see this as a victory for freedom of religion as well as freedom of speech. But Alito knows a thing or two about religious freedom as well, having endorsed a greater expression of religion in the public square. In this case, it could be speculated that Alito found limits to expressing religious beliefs of the most outrageous kind in such a flagrant matter. But on the more pertinent issue (in this case, at least) of free speech, it was enough that Alito decided that the Westboro Baptist Church had gone too far.

Fortunately, the ruling may allow some leeway for local officials to pass laws allowing picketing at funerals but setting rules and regulations to keep protesters at bay.