The Supreme Court’s decision March 2 that a military funeral protest by Fred Phelps’ Westboro Baptist Church is protected by the First Amendment is a free speech victory, but “there is one note of concern for free speech advocates, which is the opinion’s toleration of ‘free speech zone’ theory,” says Neil Richards, JD, constitutional law expert and professor of law at Washington University in St. Louis.
“The opinion notes with approval that the funeral protest took place from a free speech zone from behind a protective fence, and notes at the end that even though Phelps’ speech was protected, it would certainly be amenable to possibly aggressive time, place and manner restriction,” says Richards, a former law clerk for former Chief Justice William H. Rehnquist.
Richards offers some preliminary observations about Phelps in the popular Concurring Opinions blog.
Richards says that the decision seems to be correct, at least as a matter of fidelity to existing First Amendment precedent. “It continued the trend of protecting free speech on matters of public concern even if they caused emotional injury,” he says.
“The court held that the church’s rather distasteful message — that God hates America and is punishing it for its tolerance of homosexuality, particularly in the armed forces — was principally a commentary on public affairs rather than a private act of harassment against the Snyder family.
“Again, this is consistent with the broad theme of modern First Amendment law that speech on matters of public concern is entitled to very strong protection and cannot be regulated or made the subject of civil liability even when it is both offensive to many and causes significant harm,” Richards says.
The court ruled 8-1 in favor of free speech, with Justice Samuel A. Alito Jr. casting the lone dissent. Richards says that lone vote is another notable aspect of this case.
“It appears that Justice Alito is the most willing member of the current court to allow regulation of speech based upon its morally objectionable nature or its emotionally harmful content,” he says.
“It will be interesting to see how he rules the next time the court hears a hate-speech case, if only to test his fidelity to this principle. Justice Alito may be the best friend of anyone who seeks a broader protection against hate speech and other words that wound.”
To read all of Richards’ comments, visit concurringopinions.com/archives/2011/03/a-few-preliminary-thoughts-on-snyder-v-phelps.html.