In its recent ruling in Snyder v. Phelps et al the U.S. Supreme Court once again affirmed the right of freedom of speech even if the content of the speech is offensive and even outrageous. The court upheld the decision of the U.S. Federal Court of Appeal(4th Circuit) setting aside a jury award to Mr. Snyder for intentional infliction of mental distress and other torts based on the offensive and outrageous content of the suject speech relying on a state statute.

The basic facts:

Mr. Snyder was awarded a multi-million dollar judgment by a jury in a civil action which he brought against Mr. Phelps and his followers from the Westboro Baptist Church as a result of injury he alleged he suffered as a result of their hurtful and outrageous speech and demonstration at his son's funeral held at a local Catholic church. Mr. Snyder was buring his son - a U.S. soldier who died in combat in Iraq. Members of this church are fundamentally opposed to homosexuality and especially homosexuality in the U.S. Army. Consequently, the followers of this church advocate that God hates the U.S. and make it a practice to communicate their message at the funerals of U.S. military personnel. The court record confirmed that the protesters in fact followed the applicable city ordinances with respect to their protest and their message was largly resticted to messages on picket signs. The messages included the following: "God hates fags", "Fags doom nations", "The U.S. is doomed", "Thank God for dead soldiers", "Priests rape boys" and "You're going to hell." At trial a jury found that the conduct of the protesters was outrageous and found for Mr. Snyder.

U.S. Supreme Court Analysis:

The U.S. Supreme Court begins its consideration of the constitutional issue raised in the case by clearly acknowledging the fundamental and paramount place that the First Amendment right to free speech holds in the legal system. Commensurate with this approach, the court does not merely accept the findings and conclusions of the lower court under some theory of judicial deference to the lower courts "discretion" but it reviews the entire record with a view to satisfying itself that the lower courts conclusions are sound in law. Following a review in this manner, the court determined that the speech in question involved comment on public issues and the effect of the state statutory enactment relied upon by the jury awarding damages to Mr. Snyder effectively curtained the content of the protesters speech by virtue of the award of to Mr. Snyder. The court acknowledged that the content of the speech was hurtful and outrageous. However, the court pointed out that they could not censor or punish the picketers merely becasue the content of their speech was hurtful. Chief Justice Roberts wrote:

"Speech is powerful. It can stir people to action
, move them to tears of both joy and sorrow, and as
it did here - inflict great pain. On the facts before
us, we cannot react to that pain by punishing the
speaker. As a nation we have chosen a different course -
to protect even hurtful speech on public issues to ensure
that we do not stifle public debate. That choice requires
that we shield Westboro from tort liability for its
picketting in this case."


Some observers will argue that the courts have no business second-guessing and effectively substituting their opinion for that of the democratically elected law-makers who passed the state law circumscribing the picketter's rights to free speach. These observers fail to understand and appreciate the depth, purpose and scope of the U.S. Constitution. Unlike constitutions in other "free and democratic" nations, the drafters of the U.S. Constitution appear to have intended to make a clear departure from English law. A constitution under the U.S. model is the supreme law of the land because it provides the legal framework within which the legislature remains accountable to all of the people all of the time. It is not for the state to have absolute authority to decide what speech is acceptable. This ruling is consistent with what I understand to be the rule of law - namely - the law applies to all - including the state. When the state is above the law - either by design, omission or custom individual rights are left vulnerable to the arbitrary exercise of judicial discretion and state power.

Note: This piece is written for the sole purpose of encouraging public discourse on a matter of publice importance.
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