Why I Hope Westboro Baptist Church, the ACLU, and Dahlia Lithwick Get Their Butts Kicked By the Supreme Court

[Cross-posted to In Medias Res]

Wichita, KS

Here in Kansas, we are unfortunately very well acquainted with Topeka’s own Westboro Baptist “Church” (I put “church” in quotes because whatever their actual name or legal status, what they clearly are is a small, inbred, weirdly self-aware yet profoundly pathetic cult). State Democrats and Republicans alike have been active in trying to shut down or at least place limits upon the church’s ability to conduct ugly protests at and around military funerals and other public–and often personally solemn–occasions, and their actions were joined by national politicians on both sides as well yesterday, when Reverend Fred Phelps and his tiny, deluded flock came before the Supreme Court as part of the case Snyder v. Phelps. But of course, once a case reaches the highest levels of the nation’s judicial system, questions of police barriers and respectful distance and all the rest of the matters which have been subject of legislation, though still relevant, shrink in importance; what matters, ultimately, is the interpretation of fundamental constitutional principles: does the First Amendment protect protesters at a funeral from liability (Snyder won an award of nearly $11 million in punitive and compensatory damages after suing Phelps and Co. for picketing near the site of the funeral for Snyder’s son, who dies while serving in Iraq) for intentionally inflicting emotional distress on the family of the deceased? Or, in other words, does the First Amendment provide cover for pretty much any, perhaps even all, emotional harms?

It’s a given that nobody, I mean nobody, likes or agrees with what the WBC people choose to do. (Their appearance at the Supreme Court yesterday, complete with their ridiculously inflammatory signs and claims, was, by all accounts, a scary, perverse circus show.) But given the scholarly and institutional forces reluctantly lined-up on behalf of WBC–the American Civil Liberties Union, The Thomas Jefferson Center for the Protection of Free Expression, most major media companies and outlets, and more–and given that this (in many ways obviously “conservative,” whatever that may mean in this case) court nonetheless recently ruled 8-1 that prohibitions of graphic and offensive videos of animal cruelty are protected by the First Amendment, I think it rather unlikely that WBC will lose this case. Which frustrates me, because I’d like to see them–and the great majority of their First Amendment absolutist supporters–get seriously spanked.

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