The Rev. Fred W. Phelps, Sr., has died. The 84-year-old founder of the controversial Westboro Baptist Church had been in hospice care.
Phelps, his family and a few followers have become notorious for their protests around the country at the funerals of soldiers, claiming their deaths are God’s vengeance for tolerance of homosexuality. The protesters hold signs saying “God Hates Fags” and “Thank God for Dead Soldiers.”
In 2006, they protested at the funeral of Matthew Snyder, a 20-year-old lance corporal who was killed in an accident during military service in Iraq. Phelps and his crew showed up for the funeral with signs that read “Matt in Hell” and “No Special Laws for Fags.”
Snyder’s father sued Phelps, claiming invasion of privacy, defamation and intentional infliction of emotional distress. The case went all the way to the U.S. Supreme Court, where the justices ruled 8-1 (Alito dissented) in favor of Phelps.
The high court determined that the protest was protected by the First Amendment. It was on public property (a sidewalk about 1,000 feet from the church), that it was peaceful and that it dealt with an issue of public concern, the morality of the country.
Writing for the majority, Chief Justice John Roberts said “such speech cannot be restricted simply because it is upsetting or arouses contempt.”
Courts have held previously that there are limits on the First Amendment that affect protests. For example, there must be a buffer zone between the entrance of an abortion clinic and protesters. However, graphic signs held by protesters are protected speech, even though some find those images repulsive.
It’s always healthy to remember that it’s unpopular speech that needs protecting. Eugene Volokh, writing in The Heritage Guide to the Constitution, writes, “The free speech/press guarantee extends to all viewpoints, good or evil. There is no exception for Communism, Nazism, Islamic radicalism, sexist speech or ‘hate speech,’ whatever that means.”
The Westboro Baptist Church is a bizarre, contemptible bunch, but testing the limits of the First Amendment provides guidance of what is, and what is not constitutional. The court’s determination in Snyder v. Phelps reaffirms the principle that the marketplace of ideas is preferable to government intrusion.
As for Phelps, for years he has claimed to know God’s intent for homosexuals and those who tolerate or accept homosexuality. Phelps has them burning in hell.
But now the Reverend Phelps is going to find out what God thinks of him.
(Editors note: The original version of this commentary has been updated to reflect that Phelps has died. hk)