In her blog post from Tuesday, Caroline Cox criticizes my recent editorial in the Harvard Crimson for its opposition to the Supreme Court’s decision in Snyder v. Phelps. In an 8-1 ruling, the Court decided that the First Amendment protected the Westboro Baptist Church (WBC) from paying damages incurred for the “intentional infliction of emotional harm” while protesting at a military funeral. According to Cox, my “faulty legal logic,” coupled with a “failure to even properly articulate the basic facts of the case,” results in the denigration of the First Amendment at the expense of essential speech rights. Unfortunately, Cox’s argument relies on a misreading of the editorial, the Court’s opinions, and two hundred years of constitutional history.
Let’s start with the “basic facts.” Restricting the “how, when, and where” of the WBC’s speech does not amount to a restriction on the speech itself. It’s obvious that the content of the WBC’s speech is protected by the First Amendment; however, the way in which the church chose to express its views was not. Cox claims that the WBC was in compliance with all state laws and held the protest 1,000 feet away from the funeral’s location; this implies her recognition that some restrictions on the “how, when, and where” of freedom of speech are essential to the appropriate and sensitive recognition of First Amendment rights. Her post implies that she is an upholder of First Amendment protections fighting against my suppressive views, but we don’t disagree on the importance of First Amendment rights. We just disagree on the best means of guaranteeing them. For Cox, the legislative restrictions were enough, and complying with them assured the WBC’s exemption from paying damages. In my view, it’s within the power of the courts to make judgments about whether particular actions have intentionally inflicted emotional harm on individuals (regardless of whether those actions are protected by freedom of speech), and the initial jury’s decision to impose damages was therefore a legitimate one.
Cox will undoubtedly respond that this is a contradiction: the imposition of the damages is itself a restriction on freedom of speech. But I’ll reiterate that the WBC should feel free to conduct its protests at any of the hundreds of American sites that other protesting groups have employed: in front of the Capitol building, the White House, state legislative offices, and the like. Instead, it attempted to gain more attention than any of those locations would have provided by protesting at a private military funeral. By deciding to protest in this context, the WBC exposed itself to the just penalties for its actions as determined by a jury — in this case, damages for the intentional infliction of emotional harm. The exercise of rights — even rights protected by the First Amendment — can have consequences, and in this case, those court-imposed consequences shouldn’t have been overturned.
Finally, Cox suggests that “the real question in the Phelps case, in the simplest terms, was not whether the government can make restrictions on freedom of speech, but rather whether the protests of the funeral constituted public or private speech.” This is one of the most troubling arguments that has been invoked with regard to this case, because it overlooks the intentional results of the WBC’s decision to protest at a military funeral — a “basic fact” of the case if ever there was one, but one that has been consistently ignored. The WBC may have been protesting matters of public import relating to homosexuals in the military, but it made the conscious decision to express its viewpoints in a private context. It chose a specific individual’s funeral to protest and a specific family’s pain to intrude upon. It took what could have been a matter of public import and made it into a private one by violating the family’s right to privately mourn the loss of its child.
Not only that, but it personally attacked the soldier’s family online, which invalidates both Cox and the Court’s arguments on their own terms. As Justice Alito noted in dissent, the protestors posted a narrative that brutally attacked the parents of the fallen marine, Lance Corporal Matthew Snyder:
Mr. and Mrs. Snyder, … you had a DUTY to prepare that child to serve the LORD his GOD — PERIOD! You did JUST THE OPPOSITE — you raised him for the devil. … Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. … Then after all that they sent him to fight for the United States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life, putting him in the cross hairs of a God that is so mad He has smoke coming from his nostrils and fire from his mouth! How dumb was that?
If these repulsive, destructive words aren’t a personal attack — on the family’s religion, on its raising of its child, and on Snyder’s career in the military — then I question what would constitute a personal offense in the view of Cox and the Court. How this speech could have been upheld as a reflection of a matter of “public import” is confounding; those like Cox who claim that the WBC was protesting matters of “public import” have been swept away by the majority opinion’s rhetoric without looking at the “basic facts” of the case.
What is truly disturbing about Snyder v. Phelps and the response to it relates to the Court’s elevation of free speech rights without acknowledging the corresponding rights of the family to mourn its loss privately. The Court chose to elevate free speech and compound a family’s grief when it could have limited this emotional harm without infringing on the WBC’s right to express its offensive perspectives. Cox might argue that this view compounds my misunderstanding of the “finer points of the law,” but if elevating the privacy rights of a family mourning the loss of one of its members amounts to such a misunderstanding, then I’m willing to accept the consequences for our legal and constitutional system.
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