Free Speech for Fred Phelps

>Fred Phelps is a civil libertarian's nightmare; his vicious, homophobic protests of military funerals, outraging liberals and conservatives alike, make censorship seem like a patriotic duty, as well as an expression of tolerance.  Rarely does one man's speech equally enrage so many people who share so little.

Should Phelps be made to pay for his verbal offenses?  Next term, the Supreme Court will decide the constitutionality of a multi-million dollar damage award against Phelps won by Albert Snyder, the father of slain soldier, Matthew Snyder.  The Fourth Circuit Court of Appeals rightly struck down the award, in Snyder v Phelps, stressing that utterances like "God hates Fags," or God hates the USA," or predictions about who is and is not going to hell are constitutionally protected statements of opinion (reflecting religious and political beliefs).

But just like God's existence and attitudes toward gay people, Fred Phelps's speech rights are subject to debate -- at least until our judicial deities define them.  An ideologically and intellectually diverse collection of 42 U.S. senators and an equally disparate group of 48 state attorneys general have filed respective amicus briefs assailing Phelps's claim of immunity from civil damage awards and urging the Supreme Court to reverse the Fourth Circuit's ruling.  I hope the Court upholds it and allows law and facts to prevail over politics and emotionalism.
First, it's important to understand what is not at issue legally in this case.  It does not involve a challenge to the constitutionality of laws restricting the time, place, and manner of funeral protests (enacted by a nearly unanimous Congress and 46 states).  Second, it's important to underscore key facts that supporters of the damage award to the Snyder family tend to ignore. In protesting Matthew Snyder's funeral, Phelps respected these restrictions: he "complied with local ordinances and police directions with respect to being a certain distance from the church," the Fourth Circuit observed, and Albert Snyder "did not actually see the (offending) signs until he saw a television program later that day with footage of the Phelps family at his son's funeral."
Did the Phelps protest actually disrupt Matthew Snyder's funeral?  That depends on how you define disruption.  Albert Snyder claims that he was aware of the planned protest and that the funeral procession used a side entrance to the church to avoid encountering it.  But this relatively successful evasion of the protesters (and the fact that Snyder only saw Phelps's hateful signs on TV) undermines his captive audience claim: he "is entitled to governmental protection from the Phelps's conduct because he was a captive audience at his son's funeral," Snyder's brief to the Supreme Court insists.  It's an interesting argument.  In theory, the privacy rights of a captive audience may limit the speech rights of protesters whose presence and message is impossible to avoid.  The trouble is, the facts in this case don't quite support the theory.
If Phelps obeyed relevant ordinances and police commands and did not directly disrupt the funeral proceedings, then why was he held liable for protesting it?  Albert Snyder advanced a series of tort claims against Phelps, including, most notably, intentional infliction of emotional distress caused by the funeral protest and by subsequent internet rants about Matthew and his family, the sight of which allegedly made Albert Snyder "violently ill."  The district court dismissed two of Snyder's claims (involving defamation and publicity) but allowed his claims of emotional distress, intrusion, and civil conspiracy to be determined by a jury.  Guess who the jury found more sympathetic -- the visibly anguished father of a slain marine or the cruel, contemptuous, hate-mongering protester?
This is precisely the evil that the First Amendment was designed to prevent: submitting the right to express presumptively distressing or despicable ideas to a popular vote.  Snyder's claims of emotional distress should never have been presented to the jury; they should have been dismissed, as a matter of law, by the trial judge.  The district court's instructions to the jury in this case were also deeply flawed, and, in my view, more dangerous than any number of cruel, crazy, yet peaceful protests. The judge told the jury that "vulgar, offensive, and shocking" speech may only enjoy limited constitutional protection, suggesting, nonsensically, that the First Amendment fully protects only inoffensive speech that wouldn't be unwelcome in polite company -- and wouldn't need protection -- unlike the ravings of Fred Phelps.
Consider the consequences of allowing juries to decide when speech is sufficiently distressing to be punished with substantial damages (and, therefore, severely chilled, if not effectively, legally prohibited).  Determinations of emotional distress are, like the experience of distress, inherently subjective, and its causes may be impossible to isolate.  Albert Snyder testified that the Phelps protest "tarnished the memory of (his) son's last hour on earth...he described the severity of his emotional injury stating that he is often tearful and angry ... so sick to his stomach that he actually, physically vomits...."  Expert witnesses for Snyder testified that the protest had exacerbated his diabetes and severe depression.  How did they know, I can't help but wonder?  How could they testify with any certainty that Matthew Snyder's death would not have had the same effect on his father's physical and mental health in the absence of Phelps's protests?  How could jurors evaluate the actual, causal relationship of Fred Phelps's speech to Albert Synder's grief?  
And, if juries may punish pure political or religious speech with censorious damage awards in the belief that it was excessively distressing, then what speech may jurors not punish?  It's easy to imagine that some grieving parents might be deeply distressed by anti-war protesters who display signs at military funerals or write Internet posts claiming that their sons or daughters died in vain fighting unjust wars, or even worse, that their children were murderers or collaborators in oppression.  Speech with no apparent political or religious content would be even more vulnerable to the subjective reactions it evokes from people who find it distressing.  Imagine the award that a jury of anti-porn feminists and right wing anti porn activists would award to someone who claims to have been traumatized by pornography.
The state attorneys general dismiss slippery slope arguments like this with the irrelevant assertion that the Phelps case is unique ("no one else in the history of this country has utilized their tactics").  But, as these attorneys must know, even if the Phelps protests are unique and unlikely to be precisely repeated, legal precedents making them vulnerable to civil lawsuits would have general applicability.  
Besides, the view of offensive or distressing speech as a form of assault, which partly underlies the Snyder case, is no longer unique, thanks to late 20th century pop therapies and expansive notions of child abuse, as well as the anti-porn movement.  Years ago, anti-libertarian feminists were widely derided for arguing that adult pornography was dangerous, distressing, and undeserving of legal protection.  Today, their theories are widely accepted and reflected in the Snyder case.  Phelps and his followers are "emotional terrorists," the attorneys general insist sensationally, echoing the characterization of pornographers as "sexual terrorists."  Everyone knows we're engaged in a war on terrorism, and when speech policers call protesters or pornographers terrorists, they're rarely speaking metaphorically.