Thursday, October 7, 2010


Fred Phelps has no friends on the bench of the Supreme Court. And he doesn't think he needs them. As you may be aware, Phelps' Westboro Baptist Church has for some years now been going around to military funerals- a singular event in which the family has only one chance to bury a loved one- and utterly runing them with signs such as 'YOU'RE GOING TO HELL', 'THANK GOD FOR DEAD SOLDIERS', 'GOD HATES THE USA', and like-minded rhetoric.

One of their victims, Albert Snyder, has brought them to the Supreme Court, where a $5 million ruling against the church hangs in the balance, but also some very tricky free speech questions.

And that's where Phelps thinks they don't need any friends. As far as he's concerned, they're exercising free speech and that's that; to rule against them would be stomping on the First Amendment. Snyder begs to differ; to him this is not about free speech but rather harassment, an argument that can be seen in all its glory right outside the Court's door, as Westboro has shown up in force outside the Court with the same signs they carry to the funerals. To Snyder, this is somewhere along the lines of yelling fire in a crowded theater, except you can watch the movie again, but you can't do the funeral over.

The Court itself, for their part, has made their personal opinion perfectly clear, even though they could be weighing the case well into next year: they are looking high and low for a reason to rule against Phelps. In the article, you will see Ginsburg, Kagan, Roberts, Alito and Scalia all trying to rule for Snyder, which is the needed five right there. The question isn't where the court wants to side. The question is, can they find a way to do it.

I think they will. The ETA on their ruling, according to the article, is "late spring". That's six, seven months from now. If there is any way to get a ruling against Westboro, surely, they will have found it by then. They can rule as broadly or as narrowly as they choose, and if a ruling is to be made against Westboro, the Court is sure to do it in a way that screws over Phelps and only Phelps, if at all possible. (Not that Phelps will care; Westboro has announced that they're going to keep doing what they're doing regardless of the Court's decision.) I predict something along the lines of 'you can't show up at someone's funeral and bad-mouth the dead to the point of public nuisance unless invited to attend'. And make no mistake; I'm rooting for them to find it. It would make my day to see Phelps lose this in a way that is unlikely to affect anyone else.

(Of course, my predictions are to be taken with a grain of salt; I also predicted back in April that Russ Feingold would be fine against Ron Johnson, who I seem to have dismissed as one more random ballot-filler in favor of Terrence Wall and Dave Westlake, who were little better, and 538 currently has Feingold at only an 11% chance of survival against Johnson. Unfortunately.)

Let's be clear: this is a tricky one. It's easy to rule in favor of free speech when it's popular. The true test is what you do when it's unpopular. People keep having to remind themselves of this every time the Ku Klux Klan wants to hold another rally. But this is not a rally; this is a funeral. No permits are ever sought, the occasion is normally supposed to be friends and family only, and again, you can always hold another rally. And there is the aforementioned 'fire in a crowded theater' precedent; you never know when one of the families might snap under all the stress, knee Phelps in the groin, and set off half a riot.

We'll have to wait and see.

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