WASHINGTON (RNS) In an 8-1 decision, the U.S. Supreme Court ruled Wednesday (March 2) that the “Thank God for Dead Soldiers” protesters from Westboro Baptist Church have First Amendment rights to protest military funerals.
But does that mean more protests from religious groups are ahead? Or more efforts to limit them?
The majority determined that the Rev. Fred Phelps and members of his small church in Topeka, Kansas, had free-speech rights to picket within 300 feet of the funeral of Lance Cpl. Matthew Snyder, who was killed in Iraq in 2006.
The court’s lone dissenter, Justice Samuel Alito, argued it was wrong for protesters to continue “inflicting severe and lasting emotional injury on an ever growing list of innocent victims.”
Legal experts differ on whether Westboro will now be a role model for other religious groups with strong views deemed offensive.
The decision could get an early test on Thursday (March 3), when radical British cleric Anjem Choudary—who says the Statue of Liberty should be wrapped in a burqa and destroyed, and the White House turned into a mosque—leads a “Shariah 4 America” rally outside the White House.
John Whitehead, president of The Rutherford Institute, which filed an amicus brief in support of Westboro’s right to protest, said the decision could provide more room to air unpopular religious views.
Whitehead is already defending a street preacher who police told to stop preaching with a handheld microphone on a public sidewalk outside last year’s Apple Blossom Festival in Winchester, Va.
“I think it’s going to protect those kinds of people,” said Whitehead, who is based in Charlottesville, Va. “It’s an 8-1 decision.”
But Ira Lupu, a church-state expert at George Washington University Law School, said there are probably few groups comparable to Westboro that would seize on this case because the group’s “God Hates Fags” signs are just too extreme.
“People just don’t do that,” Lupu said. “Everybody hates you if you do that. That’s the inhibitor, not the law.”
Westboro, however, stands ready to “quadruple” its protests at military funeral protests, Margie J. Phelps, the lead attorney for the church, told reporters, according to ABC News.
The high court’s ruling protected Westboro from a claim by Snyder’s father that he deserved financial compensation for emotional distress, defamation and “intentional infliction of emotional distress” caused by the church members’ appearance at his time of grief.
Chief Justice John Roberts, writing for the majority, said even “hurtful speech” on public matters cannot be stifled.
“Speech is powerful,” he wrote. “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.”
Roberts pointed out that Westboro members never entered the church property where the funeral occurred, weren’t violent and didn’t yell. Lupu and Whitehead agreed that if Phelps’ protesters had been more physically disruptive, the decision could have been different.
“Simply put, the church members had the right to be where they were,” Roberts said.
Alito, however, forcefully disagreed.
“In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims,” he wrote.
While Roberts noted that not all speech is legal at all times and in all places, Maryland did not have an anti-picketing law on the books at the time of Snyder’s 2006 funeral. The state passed such a law, joining dozens of others, after the controversial protest.
Lupu said the greatest repercussion from the decision could be more local with state lawmakers following Maryland’s lead to pass laws restricting the location of the protests.
If the Supreme Court had not sided with Westboro, the church would have owed Snyder millions of dollars. But with “anti-picketing laws, if you violate them, you get arrested, you get fined, maybe you go to jail for 30 days. You could survive that,” Lupu said.
Whitehead, who supports Phelps’ rights but not his message, said such laws nevertheless have to be “carefully drafted”—or they, too, could be the subject of a court case.
“If they’re not, we will get involved in lawsuits to knock them down,” he said.