9/5/10: Pastor Fred Phelps and several members of the Westboro Baptist Church discuss their upcoming case before the Supreme Court, in which they'll be arguing for their right to picket at military funerals on the grounds of the First Amendment., Video muted: click volume for sound
As the Supreme Court kicks off its new term, the justices are preparing to consider several free-speech cases, including one involving the Westboro Baptist Church, a group infamous for protesting at military funerals with signs praising the deaths of U.S. soldiers as punishment for the United States’ tolerance of homosexuality. First Amendment expert Floyd Abrams, who argued for The New York Times in the Pentagon Papers case and the Judith Miller CIA leak case and has argued 15 cases before the Supreme Court (most recently the Citizens United decision), talked with NEWSWEEK about how the court is likely to rule in Snyder v. Westboro Baptist Church, and what the ramifications of the case will be. Excerpts:
How does the case of Snyder v. Westboro Baptist Church compare to other First Amendment cases?
The closest one is one they decided just a year ago, in which the court was faced with the question of what to do with a statute that basically barred the distribution of films displaying the most awful cruelty to animals. And the court basically said, “We’re not going to expand the categories of speech that are not protected by the First Amendment.” And I think here that they’re not very likely to say, “This is a funeral, and therefore we will treat it differently in the application of our First Amendment standards.” The speech is awful. We protect awful speech in most situations. And I think it’s going to be very hard for the court to rule that speech of that sort at a sufficient distance from the church is not protected.
How does the Supreme Court decide to hear this case over any other?
For one thing, the court of appeals for the fourth circuit, which did rule in favor of the church, wrote a very broad opinion, and the Supreme Court, even if they agree with it, might want a more narrow one. Of course another reason [could be that] they thought the lower court was wrong. One reason they take cases is because they think it’s decided so badly and is going to have an impact on the system. I heard Justice Thomas once give a speech saying that sometimes they take it just because it’s interesting.
What does the Snyder family have working to their advantage in going before the Supreme Court?
They have going for them every human instinct, which every member of the court brings with them. They have a sort of sense of pervasive injustice and the moral sense of, “Haven’t we suffered enough with the loss of our son?” But what I don’t think they have going for them is much in the way of real legal support. There are some cases that do provide special protection for one’s home. They have gone so far as to say that the home is a castle, that that’s special and different. Here I would think that the lawyer for the family would say that this is like that and worse. If you have a situation which is awful enough, the members of the court sometimes react to it.
What do you think the consequences would be if the court were to rule against Westboro Baptist Church?
If the court were to do so, they would try very hard to write as narrow an opinion as they could. I don’t think they can do it. For one thing, we have protected hate speech, and I don’t think the court is going to move away from that for a moment, not in this case and not in the foreseeable future. One thing they’re all thinking all the time is, “What am I doing to the law if I do that? Who else is going to be here next week? Who is going to bring the next lawsuit?” This court doesn’t want to go rewrite libel law, privacy law, all the areas of law that we have just because we have some very sympathetic cases where people don’t recover something.
So you feel strongly that the court will rule in favor of the church?
I think so. You know, the prime reason why I’m not so sure comes back to the question you asked a few minutes ago: why’d they take this case? They don’t usually take cases to affirm. If they were satisfied with what happened in the lower court, they don’t need to take it. I don’t think that they will reverse, but there is a chance.
If the Westboro Baptist Church were to ask you to represent them in this case, would you accept?
I was asking myself a question like that about this case, and to myself I was just sighing, thinking, “It’s all very well to protect these people, but do I have to be the one to do it?” [Laughs] If I had the time, and let’s just put aside money … Would I take the case? Probably, yes … but I’m not sure I’d tell everyone.