By Nichole Rustin-Paschal
The Phelps lead the Kansas-based Westboro Baptist Church, which espouses the view that God is punishing the United States for its tolerance and legal protection of the rights of gays and lesbians by killing American soldiers in Iraq and Afghanistan. To disseminate this view, the church identifies when a fallen soldier will be buried and then plans a protest near the burial site. As in the Snyder case, the church abides by local laws regarding the holding of protests. In fact, because of the persistence of the church in appearing at military funerals, many states have passed laws that create time, place, and manner restrictions on the picketing of these funerals.
This particular case concerned a father, Albert Snyder of York, Pa., who became distraught because the Westboro group picketed the funeral of his son, Lance Cpl. Matthew Snyder, a U.S. Marine killed in Iraq in March 2006. The church uses quite abhorrent speech, including signs proclaiming "You're Going to Hell" to make its point. Often, if not always, the speech damns the fallen soldier in defamatory ways. But since you can’t defame a dead person, plaintiffs need other ways to make a claim against the church. The Snyders used the claim of intentional infliction of emotional distress, a claim that rests on the callous disregard by the speaker of the effect of his speech on the target, and intrusion upon seclusion, the claim that a defendant's intrusion into a plaintiff's personal matters is so offensive that a reasonable person would be as offended as the plaintiff.
The district court ruled in Snyder’s favor; the jury awarded him $11 million in damages, but the judge cut the amount to $5 million. The 4th Circuit U.S. Court of Appeals, however, ruled in favor of the church, primarily on First Amendment grounds. The Supreme Court, in an 8-to-1 decision penned by Chief Justice John Roberts, affirmed the 4th Circuit’s judgment.
Listen, the facts of the Snyder case are hard to swallow, I’m willing to admit. But that doesn’t mean that we ought not to protect the rights of the defendants, the Phelps, to exercise their right to speak freely. As the wife of a soldier, I can appreciate the distress Mr. Snyder and his family experienced at such a vulnerable moment in their grieving process. The deeply homophobic speech seems like a personal, visceral attack aimed at denying the sacrifice of these men and women. But, I can promise you, the Phelps could care less about any of the actual individuals whose funerals they’ve protested. They’re concerned with using political and religious speech to express a perspective on contemporary social policies and politics.
What we want is more speech, not less. Our democracy rests on the contest of ideas—if people have the courage of their convictions, they will not be deterred in expressing them by outliers articulating extreme views. Nor would they use intimidation tactics to staunch criticism as a conservative group has done recently.
I’m talking about the Mackinac Center for Public Policy in Michigan which is attempting to use state Freedom of Information Act (FOIA) laws to gather “evidence” that academics at state universities are using state resources for political activities. FOIA laws are meant to ensure open, transparent, and accountable government, not to police what professors teach and research. Seriously, people are trying, under FOIA statutes, to get the emails of all professors who teach in labor studies program for teaching about contemporary labor issues. This, if nothing else, embodies the use of state action to chill speech.
Let’s applaud public universities and colleges that are willing, as was the University of Wisconsin at Madison, to stand by the principles of academic freedom, even as they fulfill their statutory obligations. Scholars, like William Cronon, should not be harassed as they go about the work of teaching, researching, and writing about the world that we live in. Critical perspectives on pressing issues benefit us all as they contribute to our individual ability to make informed choices for ourselves.
Here’s what I tell my son when he asks me if something is a bad word—“Would that hurt your feelings if someone called you that? If so, then yes, it probably is a bad word.” But that is a lesson about civility and empathy, not a lesson about free speech and democracy. Civility is a building block, not the end result of democracy. We ought to engage with one another on civil terms, but we must be willing to fight for the ideals we value by exercising our right to free speech and protecting the rights of others, with whom we may be virulently opposed, to freely express their ideas. Let us who value social justice speak louder and be more insistent than those who would silence and ridicule us. Let ours be the voice and vision of a transformative politics in the public square. Let us speak and be free.