Snyder v. Phelps: Does Hate Speech Trump the Right to Mourn with Dignity?

Using free speech to intentionally and maliciously inflict pain, harm and emotional distress on others, should have legal consequences.
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The high-profile, contentious Snyder v. Phelps case has finally arrived at the U.S. Supreme Court.

Readers will remember the unconscionable appearances by members of a so-called religious group from the Westboro Baptist Church in Topeka, Kansas, at military funerals claiming that the deaths of our troops in Iraq and Afghanistan are God's punishment for America's acceptance of homosexuality. They show up at military funerals regardless of whether the fallen hero was gay or not.

They appear at funerals of our heroes carrying signs proclaiming "God Hates the USA/Thank God for 9/11," "America is Doomed," "Fag Troops," "You're Going to Hell," "God Hates You," "Semper Fi Fags," "Thank God for Dead Soldiers," and "Thank God for IEDs," the latter a reference to the roadside bombs that have killed so many of our troops in Iraq and Afghanistan.

One of the most despicable appearances by this group occurred in March 2006 during the funeral of Marine Lance Cpl. Matthew Snyder, of Finksburg, Maryland, who died in Iraq on March 3 of that year. In addition to spewing their usual hate-filled ideology, they also distributed fliers with young Matthew's picture and the words "Burial of an Ass."

Following that infamous event, Matthew Snyder's father, Albert Snyder, filed a suit against the group's leader, Reverend Fred Phelps, Sr., winning a lower court decision only to have it thrown out last September by the 4th U.S. Court Circuit of Appeals.

Scholars, lawyers, Constitutional experts, media organizations, etc. have all had their say on this case while it was making its way up to the Supreme Court. Twenty-two media organizations have filed a friend-of-the-court brief siding with the Westboro Church against Mr. Snyder.

Of course, the First Amendment is one of our most cherished and inviolable constitutional rights. Of course, all Americans, including Rev. Phelps and members of his Westboro Baptist Church, have the right to free, irreverent, even hateful speech. Many of us have served in part to protect the rights enshrined in our First Amendment. Ironically, Marine Lance Cpl. Matthew Snyder -- whose memory and whose parents' precious right to mourn his death with dignity were so obscenely violated -- died doing so.

But our rights also carry obligations and responsibilities. Most reasonable people do not believe that our free speech rights are diminished or infringed upon when those who misuse them to maliciously and falsely defame others, to publish child pornography and other obscenity, or to falsely yell "Fire!" in a crowded theater, are held legally responsible for such abuses. Using free speech to intentionally and maliciously inflict pain, harm and emotional distress on others, should also have legal consequences.

In this particular case, the right to grieve and to pay our last respects to our departed loved ones with dignity and in privacy; the right to entrust our loved ones to God with honor and without being emotionally assaulted and vilely stripped of our final memories, must be respected and protected.

Let's hope that the Supreme Court does exactly that. If it does so, in my opinion, it will not be an "erosion" of our First Amendment rights nor will it have a "chilling effect" on news reporting. Neither will it represent a slide on that much-allegorized "slippery slope" towards limiting free speech. Rather it will be an affirmation of our Justice system---a system where individuals are free to do outrageous things, but must be willing to bear the consequences, must be willing to face a jury of their peers.

Maryland's Attorney General, Doug Gansler, said it best in a recent Washington Post column:

The Constitution creates an impressive framework of rights that should be robustly defended. But these rights were created by the people, for the people, and when they are invoked to evade responsibility for wrongs committed against the people, their value is diminished. In deciding Snyder, the Supreme Court should be careful not to let the boundaries of our rights be set purely by those who wish to abuse them. To do otherwise would bring dishonor to those, like Lance Cpl. Matthew Snyder, who fought to protect them.

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