Westboro’s Free Speech Win: Repugnant Yet Right

“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 picketing in this case.” (Majority Opinion of the Court, delivered by Chief Justice John Roberts, in ALBERT SNYDER, PETITIONER v. FRED W. PHELPS, SR., ET AL., March 2, 2011)

In an opinion delivered by Chief Justice John Roberts, an 8-1 majority of the United States Supreme Court handed Westboro “Baptist Church” a victory in a much-anticipated First Amendment ruling that has both Freedom of Speech and Freedom of Religion implications.  I expected a more closely divided Court. I am surprised that eight Justices “sided” with Westboro (only Justice Samuel Alito dissented). 

I placed “sided” in quotes because most people outside of the members of Westboro “Baptist Church” (Fred Phelps, Sr. and his immediate family members) do not ever want to “side” with them on any issue.  The Court itself, as Chief Justice Roberts noted with just a hint of sarcasm, did not necessarily find itself in agreement with Westboro’s philosophy:

“Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible.” (Majority Opinion, page 14)

Negligible indeed.  As a lawyer-turned-pastor, I find myself in somewhat of a quandary regarding this particular case.  As a pastor, I find Westboro’s beliefs and actions offensive and completely at odds with the Word of God and with how I believe that Jesus would want us to act .  In every way imaginable, I believe that what Westboro says and does — particularly with their picketing and protests at military funerals — is repugnant and reprehensible.  I know that I should “love my enemies” (and Westboro is an enemy of Christ), but just like with my feelings towards Bill Maher, I find it difficult to live up to the high standard that Jesus has called us to follow.  Confession is good for the soul.

My strong feelings against Westboro have only been heightened since the death of my Music Pastor’s son, Garrett, in Afghanistan on December 27, 2010.  He stepped on an IED while out on patrol.  While his family and friends can be comforted in the fact that he was a believer and is safe in the arms of Jesus, the vile hatred of the signs that Westboro uses to intentionally inflict emotional distress on the grieving families of our slain soldiers is worthy of condemnation by all civilized people.  I am thankful that the Westboro “crazies” did not show up in New Mexico to picket when this outstanding fallen American hero was laid to rest.

The sad fact of the matter is that Westboro proudly acknowledges that their picketing of military funerals (some 600 and counting) is intended to inflict emotional distress on the families.  Justice Alito, in his dissent, points out that Westboro never disputed that fact in the case of the Snyder funeral:

“Although the elements of the IIED tort are difficult to meet, respondents long ago abandoned any effort to show that those tough standards were not satisfied here. On appeal, they chose not to contest the sufficiency of the evidence. See 580 F. 3d 206, 216 (CA4 2009). They did not dispute that Mr. Snyder suffered “‘wounds that are truly severe and incapable of healing themselves.’” Fi-gueiredo-Torres, supra, at 653, 584 A. 2d, at 75. Nor did they dispute that their speech was “‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Harris, supra, at 567, 380 A. 2d, at 614. Instead, they maintained that the First Amendment gave them a license to engage in such conduct. They are wrong.” (Justice Samuel Alito, Dissenting Opinion page 3)

While I wholeheartedly agree with Justice Alito’s opinion regarding the morality of Westboro’s speech and conduct, the lawyer that remains in me agrees with the legal reasoning contained in the majority opinion.  While Chief Justice Roberts was careful to narrowly tailor the majority opinion to the specific facts of this case, I believe that the Court got it right this time.  But, we must always remember, especially from a Christian perspective, that what is legal ain’t always right! 

The reason that Chief Justice Roberts and the majority got it right is because the First Amendment freedoms that we enjoy — particularly freedom of speech and freedom of religion (which often intersect) — must be protected against government encroachment.  Even though Westboro’s speech and actions  were “utterly intolerable in a civilized society,” we cannot begin to ban speech that we find personally offensive or outrageous (although reasonable “time, place and manner” restrictions are permissible — this issue was not before the Court).  That standard, as the Chief Justice pointed out, cannot be the one that our society uses, even in extreme cases like Westboro:

“The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.”  “Outrageousness,” however, is a highly malleable standard with “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.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the]speech,” posing “a real danger of becoming an instrument for the suppression of . . . ‘vehement, caustic, and sometimes unpleasan[t]’” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270).  Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted).” (Majority Opinion, page 12)

This case, in so many ways and for so many Christians (and others), is simply distasteful.  On some level, no one really wanted to see Westboro “win.”  However, if the Court would have found that Westboro’s speech was not “protected” speech and that they could not use the First Amendment as a shield or defense to a tort claim of intentional infliction of emotional distress, then the Court would have been permitting a back-door assault on free speech.

Imagine the possibilities and the nightmare scenarios that would develop, especially for real churches that preach and teach on moral issues that others might subjectively find offensive or outrageous.  Lawsuits against churches would become the order of the day.  Preach against homosexuality or Islam and suddenly find yourself sued for intentional infliction of emotional distress.  Even if the lawsuit is eventually dismissed, churches (and individuals) could be bankrupted in defending against these causes of action.  Churches would lose any First Amendment protections to speak out on the pressing moral issues of the day.

Fortunately, the Court was unwilling to trample on the First Amendment, even when it would have been easy to trample on the rights of the vile group known as Westboro “Baptist Church”:

“The “content” of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of “purely private concern.” Dun & Bradstreet, supra, at 759. The placards read  . . .  While these messages may fall short of refined social or political commentary, the issues they highlight  —the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import.” (Majority Opinion, page 8)

In the end, an overwhelming majority of the Supreme Court “sided” with the First Amendment and the right of people and churches to speak (and preach) freely on “matters of public import.”  That’s a good thing.  If Westboro would have lost, then churches across America would find themselves under assault from the radical elements in this country who would love nothing more than to shut down debate on the great moral questions of our day.

Westboro’s victory, as repugnant as it may be to swallow, is a victory for the First Amendment.  Who should we thank for that victory?  Certainly not Westboro, for there is absolutely nothing that anyone should ever thank them for.  The Supreme Court?  Perhaps, because they got the ruling right when it would have been so easy to get it wrong. 

At the end of the day, we should probably be most thankful for the men and women of our Armed Forces who have sacrificed so much, including their own lives, so that we might continue to enjoy the precious freedoms this great country affords.  At least that’s what I think.


About Howell Scott

I have been a Southern Baptist pastor for the last fourteen years. Before entering the ministry, I was a practicing attorney in my homestate of Florida. I have been married to my wife, Brenda, for 18 years and we have three sons, Stephen, Jacob, and Andrew.
This entry was posted in Freedom of Religion, Freedom of Speech, Freedoms, Law and tagged , , , , , , , , , , , . Bookmark the permalink.

6 Responses to Westboro’s Free Speech Win: Repugnant Yet Right

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  2. Kaylee Chord says:

    Thank you, yet again, Pastor Scott, for helping me see things in a perspective perhaps a little more in line with the way Jesus would want us to. It is so easy to become disheartened and angry at the ruling, but alas, the nature of this society tells us to have thicker skin, and the Word of God tells us to forgive, even when forgiving is extremely difficult and tests us.

    • Howell Scott says:


      Thanks for reading and for the kind words. This is one of those cases that at first blush most people would want Westboro to lose. I don’t think anyone relishes the though of Westboro “winning,” but the Supreme Court’s opinion will help real churches to continue to enjoy the freedoms to speak out on these issues as well without fear of being sued. Hope you are feeling well today. Have a great and blessed day. God bless,


  3. Stephen Fox says:

    I am of about three minds on this one. 8-1 is solid majority, overwhelming; yet I doubt any of us want a country this ruling allows.

    Can the posse commitatus shout the N Word at a Hip Hop Ralley. Can Jewish funerals be stalked by pictures of Dachau. Is that protected free speech.

    Hard to differentiate that from what Westboro does.

    Gonna be interesting to see where it all goes from here.

    • Howell Scott says:


      I would not disagree with your assessment. While I agree with the legal reasoning of the Court, I still find what Westboro (or your other examples) does and says truly repugnant and unChrist-like. If that became even more than a fringe element in our nation, then I think we would be in much more dire straights than we are now. It will be interesting to see how this plays out in practice. Hope you are doing well. God bless,


  4. Milton Robins says:

    Another great blog post.

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