I have already commented briefly on last week’s decision in the unhappy case of Snyder v. Phelps, which held that the Westboro Baptist Church enjoyed the protection of the First Amendment for the demonstration that it held on public lands at the funeral of Lance Corporal Matthew Snyder in Westminster, Maryland. Snyder was a gay marine killed in Iraq. Westboro acted out of its strong, but hateful, conviction that its mission in life is to taunt the families of gay, dead soldiers for their mortal sins. But, at the same time, the church observed certain niceties. It informed the local authorities of its intention to demonstrate. It did so on a small plot of public land, located about 1,000 feet from the funeral site. It sang songs and recited Biblical text. But it did not use obscenities, nor did it make any false statements about Corporal Snyder.

In dealing with this case, the Maryland District Court judge rightly threw out a defamation suit, but allowed a tort action to proceed for the intentional infliction of emotional distress, to which the jury responded with a hefty $2.9 million in actual damages and $8 million in punitive damages. The District Court judge kept the actual damages, but knocked down the punitive damages to $2.1 million, for a $5 million total. Westboro has demonstrated at some 600 sites. So if similar lawsuits were brought in all cases, the church would be on the line for a tidy $3 billion, for which sum it would be manifestly judgment-proof.

It is, alas, hard to quarrel with the Supreme Court’s decision that knocked out the District Court’s judgment against the church, by upholding the church’s right to demonstrate when, where, and how it did. But by the same token, I am uneasy about the broad rationales that were used to defend this judgment, which represents, in my view, an overly generous view of what the First Amendment is about. In the course of his opinion, Chief Justice John Roberts rested his defense on such banal facts as Westboro’s speech being a matter of "public, not private concern." Roberts then concluded that the former sort of speech, including the church’s tasteless and offensive remarks, "occupies the ‘highest rung of the hierarchy of First Amendment values’ and is entitled to ‘special protection.’"

Read more at Defining Ideas