Find the Cost of Freedom

The Reverend Fred “God Hates Fags” Phelps and his Westboro Baptist Church were back in the news this week after being hit with a $10.9 million judgment in a civil action brought by Albert Snyder, the father of Matthew Snyder, a Marine lance corporal who was killed in Iraq in January 2006. Phelps and some of his church members picketed the funeral, as they have other military funerals in recent years, in the belief that (here’s where things get weird) U.S. deaths in Iraq and Afghanistan represent God’s punishment for American tolerance of homosexuality.

Not surprisingly, the verdict has been applauded across the political spectrum. Liberals, moderates, and many conservatives are repulsed both by Westboro’s views and its tactics, while even those religious conservatives who share some elements of Phelps’s views on homosexuality are appalled by his actions, not to mention mystified by his logic, and are generally embarrassed to be associated with a philosophy best captured by the oxymoronic label of “Christian nihilism.” (The group is fond of declarations like “God hates the world and all her people” and “Thank God for 9/11”).

Still, there exists a minority opinion that Fred Phelps’s constitutional rights have somehow been violated here. The lawyer who defended Westboro in the case made a statement to the effect that the church’s actions were protected under the First Amendment’s guarantee of freedom of speech and that the verdict was likely to put a chill on political protest in the U.S. As someone who takes a broad view of freedom of speech, it’s an argument that I take seriously.

But is freedom of speech truly the issue at stake here? The answer to this question may lie in the distinction between civil and criminal law. The right to freedom of speech, like other protections in the Constitution, is intended primarily to protect citizens from the actions of their government—in other words, to protect us against the criminalization of speech, except under certain well-established standards, including incitement to imminent lawless action (e.g. “shouting ‘fire’ in a crowded theater”) and, more problematically, obscenity.

The situation is somewhat different in the realm of civil law, which deals primarily with legal actions taken by citizens against one another. The necessary role of government in mediating such actions leads to a legal gray area in terms of the extent to which government can be involved in restricting speech, an area that remains highly contested. Courts have consistently allowed citizens to being lawsuits restricting speech that violates established principles of tort law, particularly that of defamation (i.e. slander and libel). Snyder’s suit against Phelps and Westboro is a civil action; in other words, his claim is not that their speech constitutes a criminal act, but rather that it amounts to harassment and an intentional infliction of emotional distress, two well established principles of tort law.

I don’t know enough about either the specifics of the case or the vagaries of tort law to know whether Snyder’s suit has merit on these grounds. I suspect that, once the appeals process has taken its course, the verdict will be upheld but the size of the award will be reduced. My point is merely that a blanket appeal to freedom of speech is not necessarily a legitimate defense against this type of action. It is one thing for a government to protect the sanctity of free speech by its citizens; it is quite another to protect those citizens from the consequences of that speech, which in this case take the form of a civil lawsuit. Fred Phelps and his church may have the constitutional right to continue their hatemongering, but that doesn’t mean that they can’t be compelled to, quite literally, pay for their actions.