Snyder v. Phelps: Will Misguided Patriotism Destroy Free Speech?

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The U.S. Supreme Court will soon hear the case of Snyder v. Phelps, a case that tests the limits of the First Amendment’s protections for free speech. At issue in the case is whether members of the Kansas-based Westboro Baptist Church, which was established by Fred Phelps in 1955, have a First Amendment right to air their opposition to policies and laws condoning homosexuality by staging peaceful protests in public during military funerals. However, what this case is really about, and what few people are talking about, is the extent to which war values have seeped into American culture.

The case arose after members of Westboro Baptist Church picketed the Maryland funeral of Matthew Snyder, a Marine who was killed in combat in Iraq on March 3, 2006. As part of their protests, church members held up signs during Snyder’s funeral which stated, among other things, "God Hates the USA/Thank God for 9/11," "Fag Troops," "Priests Rape Boys," and "Thank God for Dead Soldiers." Matthew’s father, Albert, subsequently sued Westboro for demonstrating 1000 feet away from his son’s military funeral and was awarded more than $10 million in damages. That amount was later thrown out by a federal appeals court, which ruled that as distasteful as Westboro’s rhetoric might be, it constituted protected speech that focused on issues of national debate. Now it’s up to the Supreme Court to determine whether the privacy rights of grieving families trumps the free speech rights of demonstrators.

In a somewhat unprecedented move, 42 politicians — all U.S. Senators — filed a friend-of-the-court brief in the case essentially urging the Supreme Court to declare that respect for the military should trump free speech. These sentiments also underlie the arguments in the briefs filed by the Veterans for Foreign Wars, the American Legion, and the John Marshall Law School Veterans Legal Support Center, among others. Attorney generals from 48 states also chimed in with their own brief, insisting on the government’s right to protect grieving families from so-called "psychological terrorism."

One common thread runs through all of the friend-of-the-court briefs that were filed urging the Supreme Court to silence the Westboro Baptist Church protesters — namely, that America owes so much to the military and those who die in the line of duty that we should defend their honor at all costs, even if it means sacrificing our own freedoms in the process. But this line of reasoning does nothing more than pay lip service to a false sense of patriotism.

A true patriot understands that it is possible to love one’s country while disagreeing with the government or going to court to fight for freedom. Love of country will sometimes entail carrying a picket sign or going to jail, if necessary, to preserve liberty. And it means defending or speaking up for those with whom you might disagree. Tolerance for dissent, we must remember, is a vital characteristic of the citizens of a free society. As Supreme Court Justice Oliver Wendell Holmes said, "If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate."

Thus, true patriotism means being outraged at the loss of others’ freedoms and being willing to stand and fight to protect those freedoms, even when our own are not directly threatened. It also means remembering that the prime function of any free government is to protect the weak against the strong.

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Constitutional attorney and author John W. Whitehead [send him mail] is founder and president of The Rutherford Institute. He is the author of The Change Manifesto (Sourcebooks).

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