Courtroom Controversy

For the past 20 years, members of the Westboro Baptist Church, a Kansas-based church, have picketed military funerals to communicate their religious belief that God hates America because of its tolerance of homosexuality, particularly in the nation’s military.  The church’s picketing has also condemned the Catholic Church for scandals involving its clergy.

Fred Phelps, pastor and founder of the church, and six Westboro Baptist parishioners, who are all relatives of Pastor Phelps, as are most of the church’s members, traveled to Maryland in 2006 to picket the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty. The picketing took place on public sidewalks approximately 1,000 feet from the church where the funeral was held, in accordance with guidance from local law enforcement officers. The picketers had obtained a permit for their demonstration activities.

Mr. Snyder filed a lawsuit against Pastor Phelps and his two daughters, who had participated in the picketing along with four grandchildren, as well as against the Westboro Church itself, alleging intentional infliction of emotional distress, intrusion upon seclusion and civil conspiracy. At trial, a Maryland jury held that Westboro Church was liable to Mr. Snyder for millions of dollars in compensatory and punitive damages. The district court judge reduced the punitive damage award from $10 million to $5 million, but otherwise left the verdict intact.

Westboro Church appealed that verdict, and the case was recently argued before the United States Supreme Court. Our nation’s highest court upheld the appellate court and ruled 8-1 that the First Amendment did shield Westboro from tort liability for its picketing activities. 

Chief Justice Roberts wrote the Court’s majority opinion, while Justice Alito dissented, claiming that “our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.” First amendment advocates hail this decision as a victory for freedom of speech. Free Speech Continues to Be Protected in America.  

NOTE: While we do not support Christians deliberately preaching hate or making hurtful comments towards anyone, we do agree that this is an important victory for freedom of speech that will support all Christian speech going forward.

We have seen more and more resistance to Christian speech over the past few years as some claim it is hurtful and dangerous merely to preach the Gospel message. 

Speech About Controversial Topics Is Not Yet Considered Hate Speech in America.  

The Supreme Court has again upheld a very important legal principle for Christians. This decision will serve as a bulwark against a tendency to label the Gospel as hate speech.

Unpopular and Even Offensive Speech Is Still Protected in America. 

It has always been controversial and unpopular groups in the past that have protected free speech rights for everyone. The courts rule that the right to freedom of speech exists even when others might be offended or where the speech is controversial.

Free Speech Is Protected by the First Amendment When It Is Considered to Be of General Interest to the Public.

Unfortunately, this case does not guarantee that all speech about the Gospel and Biblical viewpoints will automatically be protected. The issue in the Westboro case was whether the speech was of a public or private concern, something which the court determines based upon the circumstances of each specific case. If a court determines the speech is of general interest to the public or if it is about any matter of political, social, or other concern to the community, it will be protected.  Whether the speech is inappropriate, insensitive, offensive or controversial is not relevant in determining whether speech will be protected.  Government speech about religion has been held to be unconstitutional because of the alleged “separation of church and state” found in the Establishment Clause of the First Amendment, not specifically because of its offensiveness to those who sue the government, even though that claim is always made in government speech cases about religion.

Free Speech May Not Be Protected by the First Amendment When It Is Not Considered to Be of General Concern.

If the speech is deemed to be directed towards a particular individual or concerns only a private matter, the speech would not be protected. The Court ruled that in this case the dominant theme of Westboro’s demonstration spoke to broader public issues.  The lesson here is that Christian speech in public should be general and should not be directed toward any particular individual.

Free Speech May Not Be Protected by the First Amendment If It Is Directed to a Captive Audience.     

The Court found that mourners at the funeral were not a captive audience, even though this speech was in the context of a military funeral.  The Westboro demonstrators stayed well away from the memorial service itself, and Mr. Snyder could see no more than the tops of the picketers’ signs. The captive audience doctrine would still apply in an appropriate circumstance, such as a context of public transportation. Also, in this case, the picketing did not interfere with the funeral service.

Peaceful Christian Speech Is Still Constitutionally Protected. 

If Christians address matters of public interest in a peaceful manner on public sidewalks, in full compliance as here with obtaining a permit for a demonstration, where necessary, Christian speech will continue to be protected even when others might consider it hurtful or offensive.

Public Christian Speech Should Be Christ-like

Even though the Westboro Baptist Church speech was constitutionally protected, despite being inappropriate and hurtful to mourning family members at a funeral, our Christian public speech should always be Christlike.  While we must speak the truth, we should speak the truth in love, with the aim of redemption, not condemnation.

At the Christian Law Association, we are honored to serve as legal missionaries and protect Christian free speech in our nation.  If you have a problem in the workplace or the public square, we will gladly stand in defense of your right to tell other people about Jesus Christ.  The battle over free speech is far from over, but we need to be thankful that our Supreme Court continues to protect that First Amendment freedom.