GR EXTRA!

First Amendment defenders 'must sometimes share their foxhole with scoundrels'

Andy Zipser, Editor

16 Jul 2010

The Guild Reporter

The Newspaper Guild-CWA is among 22 media groups that have signed onto a "friend of the court" brief supporting the Westboro Baptist Church's right to picket service members' funerals, offensive picket signs and vituperative outbursts notwithstanding. The brief, filed Wednesday with the U.S. Supreme Court, argues that even the most hateful speech is protected by the First Amendment, regardless of the emotional pain it may cause others.

Indeed, the speech in  question is as  offensive as can be imagined. Members of the Topeka, Kansas church, in the belief that the soldiers' deaths -- not to mention virtually any contemporary disaster -- are God's punishment for U.S. tolerance of gays and lesbians, have picketed service members' funerals with such signs as "Semper fi fags" and "Thank God for dead soldiers." The father of one such soldier, Lance Cpl. Matthew Snyder, sued the church in 2006 for defamation, invasion of privacy and intentional infliction of emotional distress, but although he won at trial he lost on appeal and has appealed again

The shocking intrusion of such protests into a family's bereavement has drawn strong condemnation from various quarters, including a brief filed with the Supreme Court by a bipartisan group of 42 U.S. Senators and another by 48 states and the District of Columbia. The arguments for upholding the initial trial verdict are unsurprising, if emotionally freighted, citing an individual's "right" to a decent funeral, the country's obligation to uphold the dignity of fallen soldiers and the intentional infliction of emotional distress by such protests.

"Respondents were and are free to convey their repugnant message in virtually any public manner they choose," the Senators' brief argues. " But they were not free to hijack petitioners’ private funeral as a vehicle for expression of their own hate." The states' petition, meanwhile, refers to the "psychological terrorism" posed by the demonstrators, pushing  its own set of emotional buttons.

But the petition filed by the Reporters Committee for Freedom of the Press, which in addition to TNG-CWA is supported by the Associated Press, Dow Jones & Co., The New York Times and Tribune Co., among others, contends that there's much more at stake in the case than the ravings of a group of religious zealots.  "This case concerns an issue critical to a wide range of speakers, including members of the news media: whether a plaintiff may recover for intrusion and intentional infliction of emotional distress where the harm is based upon the publication of controversial speech about matters of public concern," the brief explains.

Silencing a "fringe messenger" because of the the distastefulness of the message "is antithetical to the First Amendment's most basic precepts," the brief argues. Although the Snyder complaint "tests the mettle of even the most ardent free speech advocates" because of its offensiveness, the temptation to create a First Amendment exemption for offensive speech should be resisted.

Indeed, the brief asserts, quoting from the Appeals Court decision that Snyder's father is challenging, "judges defending the Constitution 'must sometimes share [their] foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply. It is a fair summary of history to say that the safeguards of liberty have often been forged in controversies involving not very nice people.'"

Several similar petitions supporting the Appeals Court ruling were filed July 14, including one from the American Civil Liberties union. Oral arguments in the case, Albert Snyder v. Fred W. Phelps, Sr., et al, most likely will be heard in the court's October 2010 term.