On March 23, the American Constitution Society hosted a discussion about the implications of protecting unpopular speech under the First Amendment and the wider issue of whether specific words can be excised from public debate. Led by constitutional law experts, Professors Bill Araiza and Joel Gora, the discussion centered on the Supreme Court’s decision in Snyder v. Phelps, which ruled in favor of the controversial Westboro Baptist Church.
Professor Araiza opened the conversation with video clips of the public’s violent reactions toward Fred Phelps and other members of the Westboro Baptist Church picketing various funerals. Providing context for the case, Professor Araiza explained that although the church members’ signs had inflammatory speech, they were ultimately participating in peaceful protests that complied with all noise and distance laws. In fact, Albert Snyder, the father of the deceased soldier, did not know of the protest until it appeared on the news hours after the funeral. With this information, the Supreme Court sided with Phelps in an 8-1 vote, citing his First Amendment rights. The only dissenter in the decision was Justice Alito, who argued that the content of the protest speech was a personal verbal attack against the Snyder family and bordered on “fighting words.”
Professor Joel Gora elaborated on the decision, explaining that the Supreme Court understood that “hateful and harmful speech is still protected by the First Amendment.” He compared Snyder to Cohen v. California, in which Paul Cohen was arrested and later cleared by the Supreme Court for wearing a shirt that criticized the Vietnam War with vulgar language. Both cases are contrasted with the issue of “de facto censorship.” Professor Gora posed the question, what distinguishes the Westboro Baptist Church from those who are punished for racist, sexist, or homophobic speech in schools or the workplace? He encouraged the audience to think about what it means to eliminate mean words for a good society or protecting the people’s right to speak in a free society.
The conversation ended with an audience question and answer session that explored the differences between Snyder and Cohen and whether a singular protest as opposed to a series of them would have affected the Supreme Court’s decision. Professor Gora summed up the discussion stating, “Communication is both rational and also emotional. The Court must protect the emotional part too.”