Popular speech, for the most part, does not require First Amendment protection. The principles of free speech matter when dealing with speech that is offensive or objectionable to large numbers of people. Fred Phelps and his tiny group of followers using military funerals as a forum to express vile slurs about gays and lesbians define the terms "objectionable" and "offensive." But even disgraceful bigots have free speech rights. For this reason, the Supreme Court is to be commended today for holding that a civil suit that held that Phelps's picketers were liable for millions of dollars and damages violates the First Amendment. Evidently, to exacerbate the pain of people who have recently lost loved ones to advance bigotry cannot be condemned in strong enough terms. But condemnation, not legal sanction, is the proper remedy. Chief Justice Roberts:
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and -- as it did here -- inflict great pain. 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.
Justice Alito, reaffirming his status as the most reactionary Supreme Court justice in many decades, was the only dissenter. The key problem with Alito's reasoning is assumption that the picketers "make no contribution to public debate." Certainly, I agree with Alito's implication that Phelps's views are reprehensible. But if the First Amendment means anything, it's that the authorities cannot determine what political views make a contribution to political debate and which do not. Phelps and his followers were clearly making a political statement, and the fact that it was an exceptionally odious one cannot deprive them of their rights.
