Love the Right to Free Speech, Hate the Speaker

As I predicted after oral argument last October, today the Court ruled 8–1 (Alito dissenting) in favor of free speech at the expense of giving a legal victory to a repugnant group. While the Westboro Baptist Church hates what they view as both the sinner and the sin, the Court properly rebuked the Phelpses while correctly expressing utmost devotion to their right to propagate their wayward message.


Stepping aside from the emotions and bizarre facts, this case implicates all sorts of legal issues aside from the First Amendment. A private cemetery can and should remove unwanted visitors for trespassing — but the Phelpses didn’t enter the cemetery. A town can pass ordinances restricting the time, place, and manner of protests — but the Phelpses stayed within all applicable regulations and followed police instructions. Violent or aggressive protestors can be both prosecuted and sued for assault, harassment, and the like — but the Phelpses’ protests did not involve “getting up in the grill” of people, as their lawyer put it during oral argument. 


As the brevity of Chief Justice Roberts’s opinion confirms, there’s very little to this case and the Phelpses’ actions, ugly and objectionable as they are, are as constitutionally protected as a neo‐​Nazi parade. If people don’t like that, they can change state laws to put certain further restrictions on protests near funerals or other sensitive areas — or federal laws in the case of military cemeteries — but they shouldn’t be able to sue simply for being offended. 


See also Josh Blackman’s parsing of the opinion’s highlights.