WASHINGTON — In a ringing endorsement of free speech with an outcome that almost no one liked, the Supreme Court said that anti-gay protestors who picket the funerals of U.S. soldiers with signs like "Thank God for Dead Soldiers" cannot be sued.
Chief Justice John G. Roberts Jr., who has championed the First Amendment over five years, cited past rulings that shielded offensive words and outrageous protests. He pointed to the decision that freed protesters who burned the American flag and another that protected a Hustler magazine cartoonist who portrayed the Rev. Jerry Falwell in an outhouse.
Last year, Roberts spoke for the court in striking down on free-speech grounds a law that made it a crime to sell videos of illegal dog fighting. He also joined the free-speech majority that gave corporations and unions a right to spend unlimited sums on campaign ads.
"The bedrock principle underlying the First Amendment," Roberts said in quoting the flag-burning ruling by liberal icon William J. Brennan Jr., is that the government cannot punish words or ideas "simply because society finds the idea itself offensive or disagreeable."
The 8-1 decision Wednesday drew protest from Justice Samuel A. Alito Jr., a conservative like Roberts, who said the man who sued the protestors, the father of a dead Marine, was "not a public figure" who would be expected to tolerate such an onslaught but a private person who sought to "bury his son in peace.
"Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," Alito wrote. "In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims."
But Roberts said that when the disputed words "address matters of public import on public property" and when the protest is conducted "in a peaceful manner, in full compliance with the guidance of local officials," they are protected.
The outcome might well be different, the chief justice said, if a private person had sued another for a "purely private" posting of outrageous and hurtful words.
The justices threw out an $11 million jury verdict against Fred Phelps and the Westboro Baptist Church from Topeka, Kan. He and his family gained national attention — and stirred deep anger — for using solemn military funerals as a backdrop to proclaim an anti-gay and anti-military message.
As the chief justice noted, the Westboro church believe this nation "is overly tolerant of sin" and "God kills American soldiers as punishment."
Five years ago, Albert Snyder, a Maryland father, sued Phelps and his daughters after they picketed near the funeral service for his son, Marine Lance Corporal Matthew Snyder, who died in Iraq in 2006. Police had kept the picketers at least 200 feet from the funeral procession. They held signs that said "Thank God for IEDs" and "God Hates Fags." The messages did not refer to Matthew Snyder, and the father testified he saw the signs only when he watched television coverage in the evening. A few weeks later, however, he saw a posting on Westboro's website that scorned him and said he had raised his son to serve the devil.
A jury awarded Snyder damages for the emotional distress he suffered, but a judge reduced the amount to $5 million. A U.S. appeals court, siding with the Phelps family and the First Amendment, said the verdict could not stand.
The Supreme Court took up the case of Snyder v. Phelps to consider the outer limits of free speech. The issue was difficult for the justices because the public picketing was targeted at a private, family funeral service. Had the Phelps confined their picketing to the Pentagon or to Capitol Hill, no one would have questioned their right to carry the signs, even with their offensive message.
Lawyers for the father argued the verdict should stand because Snyder was a private figure, not a public person, and because the protest was a targeted assault on a private memorial service. But the lawyers also made a crucial misstep. They did not mention the hurtful website message posted by Shirley Phelps in their initial appeal, and Roberts said the justices decided to exclude that matter.
In the end, the justices concluded the picketing was more of public protest than a mean-spirited private assault.
"Westboro believes that America is morally flawed; many Americans might feel the same about Westboro," Roberts wrote. Its funeral picketing "is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner."
"Speech is powerful. It can stir people to action ... and — and it did here — it can inflict great pain," Roberts wrote. "On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case."
The decision does not appear to affect the laws in 43 states that seek to keep the protesters away from military funerals. In the past, the court has said that officials may regulate where marches and protests take place, so long as they do not ban them or their message entirely.
The Veterans of Foreign Wars said they were "greatly disappointed with the result. ... The Westboro Baptist Church may think they have won, but the VFW will continue to support community efforts to ensure no one hears their voice," said Richard Eubank, VFW's national commander.