Supreme Court must tread carefully, even in the Phelps case

Opinion: March 13, 2010 at 12:00a.m.

McClatchy-Tribune News Service

(MCT)

The following editorial appeared in the Kansas City Star on Thursday, March 11:

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There’s a certain justice in the fact that during the same week the U.S. Supreme Court in Washington agreed to hear a case involving Kansas hate-monger Fred Phelps, the first gay couples were legally married in that city.

Phelps’ case will be heard this autumn, and involves one of his boorish, repulsive protests. This one took place in Maryland at the funeral of Marine Lance Cpl. Matthew A. Snyder. The same sad scattering of Phelpsian fools held nonsensical signs proclaiming “Thank God for dead soldiers,” “Fag troops” and “Pope in hell.”

After the Marine’s family won a lawsuit against Phelps, an appeals court threw out a $5 million award, citing First Amendment free speech protections.

A past Supreme Court used similar reasoning, and rightly so: “(E)ven when a speaker or writer is motivated by hatred or ill will his expression (is) protected by the First Amendment. ... If it were possible by laying down a principled standard to separate (outrageous speech) from (protected speech), public discourse would probably suffer little or no harm. But we doubt that there is any such standard ...”

That the court agreed to hear this case might be a sign that it intends to limit Phelps’ speech, most likely by clearly defining “intentional infliction of emotional distress.” Constitutional law experts disagree on whether this standard applies, but agree that traditionally this approach has been kept intensely tight because it is a threat to free speech.

The court’s restraint is necessary. Restrictions on speech, regardless of how reprehensible that speech may be, threaten a democracy.

And it’s clear Phelps’ rude tactics and vile point of view can wither and die without a court ruling. America strongly rejects him, and stands for personal freedoms. Counter-protest groups frequently and honorably drown out his madness.

Phelps’ actions are clearly abhorrent. Still, even if he wins in court, his pro-hate cause is a loser and will continue to fail to advance. A future of obscurity for Phelps would be fine justice.