“Speech is powerful,” Chief Justice John G. Roberts Jr. wrote for the majority. “It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.”
But under the First Amendment, he went on, “we cannot react to that pain by punishing the speaker.” Instead, the national commitment to free speech, he said, requires protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.”
The decision, from which Justice Samuel A. Alito Jr. dissented, was the latest in a series of muscular First Amendment rulings from the Roberts court. Last year, the court struck down laws limiting speech about politics and making it a crime to distribute depictions of cruelty to animals.
In the current term’s other major First Amendment case, the court seems likely, based on the justices’ questioning, to strike down a law banning the sale of violent video games to minors. Only the interest in national security has in the recent run of decisions been ruled substantial enough to overcome free-speech interests.
Chief Justice Roberts used sweeping language culled from the First Amendment canon in setting out the central place free speech plays in the constitutional structure. “Debate on public issues should be robust, uninhibited and wide-open,” he wrote, because “speech on public issues occupies the highest rung of the hierarchy of First Amendment values.”
The case decided Wednesday arose from a protest at the funeral of a Marine who had died in Iraq, Lance Cpl. Matthew A. Snyder. As they had at hundreds of other funerals, members of the Westboro Baptist Church of Topeka, Kan., appeared with signs bearing messages like “America is Doomed” and “God Hates Fags.”
The church contends that God is punishing the United States for its tolerance of homosexuality.
The father of the fallen Marine, Albert Snyder, sued the protesters for, among other things, the intentional infliction of emotional distress, and won a substantial jury award that was later overturned by an appeals court.
Chief Justice Roberts wrote that two primary factors required a ruling in favor of the church. First, he said, its speech was on matters of public concern. While the messages on the signs carried by its members “may fall short of refined social or political commentary,” he wrote, “the issues they highlight — the political and moral conduct of the United States and its citizens, the fate of our nation, homosexuality in the military and scandals involving the Catholic clergy — are matters of public import.”
Second, the members of the church “had the right to be where they were.” They were picketing on a public street 1,000 feet from the site of the funeral; they complied with the law and with instructions from the police, and they protested quietly and without violence.
“Any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed,” Chief Justice Roberts wrote, “rather than any interference with the funeral itself.”
All of that means, the chief justice wrote, that the protesters’ speech “cannot be restricted simply because it is upsetting or arouses contempt.”
Chief Justice Roberts suggested that a proper response to hurtful protests is general laws creating buffer zones around funerals and the like, rather than empowering juries to punish unpopular speech. Maryland, where the protest took place, now has such a law, as do, the chief justice said, 43 other states and the federal government.
In his dissent, Justice Alito said such laws offer insufficient protection. “The verbal attacks that severely wounded petitioner in this case,” he wrote, “complied with the new Maryland law regulating funeral picketing.”
The majority opinion acknowledged that “Westboro’s choice added to Mr. Snyder’s already incalculable grief” and emphasized that the ruling was narrow and limited to the kinds of protests staged by the church.
But the language of the opinion was sweeping.
“Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible,” Chief Justice Roberts concluded. “But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials.”
Justice Stephen G. Breyer joined the majority opinion but wrote separately to say that other sorts of speech, including television broadcasts and Internet postings, might warrant different treatment.
The case initially did concern not only public protests but also an Internet posting created by the church group that denounced the Snyders by name. But Chief Justice Roberts said the Snyders had failed to pursue their arguments concerning the posting in the Supreme Court and so it “does not factor in our analysis.”
The Reporters Committee for Freedom of the Press and 21 news organizations, including The New York Times Company, filed a brief supporting the church.
“To silence a fringe messenger because of the distastefulness of the message,” the brief said, “is antithetical to the First Amendment’s most basic precepts.”
In his dissent, Justice Alito likened the protest to fighting words, which are not protected by the First Amendment. “Our profound national commitment to free and open debate,” Justice Alito wrote, “is not a license for the vicious verbal assault that occurred in this case.”
Justice Alito was also the lone dissenter in United States v. Stevens, last year’s decision striking down a ban on videos and other depictions of animal cruelty.
In Wednesday’s decision, Snyder v. Phelps, No. 09-751, Justice Alito wrote that the Westboro church may speak out in many ways in many places and should not be allowed to capitalize on the private grief of others.
“In order to have a society in which public issues can be openly and vigorously debated,” he wrote, “it is not necessary to allow the brutalization of innocent victims.”