FROM THE JUDGE'S CHAMBERS: The family business

by Judge William C. Whitbeck As Justice Samuel Alito of the United States Supreme Court points out, Matthew Snyder was not a public figure. Rather, he was a Marine Lance Corporal killed in the line of duty in Iraq. Nor were Matthew Snyder's family public figures. They simply wished to bury Matthew quietly following a service at their Roman Catholic church in Maryland. But Fred Phelps is most certainly a public figure. He is the octogenarian founder of the Westboro Baptist Church of Topeka, Kansas. That church--many of whose members are Phelps' children and grandchildren--styles itself as an "Old School (or Primitive)" Baptist Church. It apparently has no official affiliation with any mainstream Baptist organization. There are number of interesting things about Westboro, but one of the most striking is how very, very litigious its members are. Phelps himself is a lawyer, although Kansas has disbarred him. Eleven of his 13 children have law degrees and most of them live in or near the family compound and practice law. Apparently, their thriving practice pays the bills for the other family business. That business is hate. Westboro's members first gained notoriety when they picketed the funeral of Matthew Shepherd, a murdered gay man, holding signs saying "No Fags in Heaven" and "God Hates Fags." Since then, according to their website, they have staged 20,000 protests in the last decade. And Westboro's members are equal opportunity haters. In addition to homosexuals, whom they routinely and virulently denounce, they also despise Jews, Roman Catholics, the United States military, and the United States itself. So, how did Matthew Snyder's bereaved family and the publicity machine that is the Westboro Baptist Church come together? It was no accident. Westboro's members targeted the funeral. Indeed, in their customary fashion, they issued a press release beforehand announcing their intentions and saying that Matthew Snyder died in shame, not honor, defending a "fag nation" cursed by God. Using this "well-practiced strategy for attracting public attention"--Justice Alito's words--they turned the funeral into a "tumultuous media event" at which they "launched a malevolent verbal attack" on Matthew Snyder and his family. Among the placards they carried were signs saying "God Hates You," "You're Going To Hell," and "Semper Fi Fags." According to Justice Alito, another placard depicted two men engaging in anal intercourse. Not content with that, after the funeral they posted an online account referring to the "Roman Catholic monster" and stating that the Snyders, "in supporting satanic Catholicism, taught Matthew to be an idolater." In 8-1 decision, with only Justice Alito dissenting, the Supreme Court found this venomous drivel to be protected speech. The majority opinion relied heavily on First Amendment precedents shielding vehement, caustic, unpleasant, insulting and even outrageous speech in order to provide "breathing space" for public debate. Justice Alito punctured these pretentions with a single sentence. This approach, he said, converts a public street in close proximity to the scene of a funeral into a free-fire zone in which otherwise actionable verbal attacks are shielded from liability. Precisely so. It is quite literally beyond belief that the Founders could have imagined a First Amendment privilege extending to the hate speech that Westboro's members routinely spew forth. It is only in the never-never land of First Amendment jurisprudence--anchored not in the words of the Constitution and where speech is speech until it isn't and fighting words are not fighting words until they are--that we could accept such a proposition. But it is now the law of the land. Fred Phelps and his brood are free to go about the family business, wrapped in the cloak of constitutional protection. And with the blessing of the Supreme Court the Snyder family is free to grieve not only Matthew's death but also the horror that the Westboro Baptist Church, not God, brought down upon them. ---------- Judge William C. Whitbeck is one of 28 judges on the Michigan Court of Appeals. A Kalamazoo native, he is a graduate of the Northwestern University's Medill School of Journalism and of the University of Michigan Law School. He served as chief judge of the Court of Appeals from January, 2002 to January, 2008. He is the past chairperson of the Michigan Historical Commission, a fellow of the Michigan and American Bar Foundations, and a member of the Michigan Law Revision Commission. In 2007, he won the State Bar of Michigan's short-story competition with "In the Market," a story of bootlegging and murder set in Prohibition-era Michigan. He has also completed one novel and is hard at work on a second. He and his wife Stephanie live in a completely renovated 130-year-old home in downtown Lansing. He can be reached at JudgeWhitbeck@AOL.com. Published: Fri, Mar 18, 2011