The Westboro Baptist Church Decision Has To Be Construed Narrowly

March 2nd, 2011

By Dan Miller

I have done no more than to skim the Court’s decision, Justice Breyer’s concurrence and Justice Alito’s dissent in today’s Westboro Baptist Church decision. However, a few points I have not seen noted elsewhere may be worth making.

Justice Roberts, for the majority, noted that “Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular facts before us.” That is nearly always the case, so much so that the Court does not generally bother to mention it in its decisions unless it intends the comment to have significant effect beyond a yawn

In his concurrence, Justice Breyer expanded on this cautionary note:

I agree with the Court and join its opinion. That opinion restricts its analysis here to the matter raised in the petition for certiorari, namely, Westboro’s picketing activity.  The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”

While I agree with the Court’s conclusion that the picketing addressed matters of public concern, I do not believe that our First Amendment analysis can stop at that point. . . . [S]uppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means.  And in some circumstances the use of certain words as means would be similarly unprotected (emphasis added).

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3 Responses to “The Westboro Baptist Church Decision Has To Be Construed Narrowly”



  1. Dan Miller |

    What this means is that none of the stuff done by the Westboro Baptist “Church” before or after its protests in the immediate vicinity of the funeral — while widely reported in the press — were considered by the Supreme Court because that stuff was not properly before it. Had it been, the Court might well have ruled otherwise.

    It is a mistake to read any appellate opinion too broadly or too narrowly. Fortunately, this one was so written as to make that unlikely. There were also cautions against doing so.

    That said, obnoxious and sometimes slovenly and smelly people have the same First Amendment rights as do we all. There is a humorous piece in P. J. O’Rourke’s Parliament of Whores on the Supreme Court’s 1990 case involving some “screaming, nose-ringed fat girls with hair by Mop & Glow and slug colored boys in fake motorcycle jackets who had their faces tattooed” who burned flags to protest the evils of the United States. He notes that

    Flag burning was . . . vitally important to everybody until the moment we all forgot about it. And, on May 14, 1990 when the case was being argued, the Supreme Court was flush with spectators, lawyers and press. . . . What we should do is what we did do by default . . . .So we forgot about flag burning and the flag burners, who were– for all their astonishing ugliness — a thoroughly forgettable bunch. We let them and their ilk and their lawyer go back to doing what they wanted to do and being who they wanted to be. The Supreme Court knew best of all. Freedom is its own punishment.

    Maybe the brethren and sisthren of the Westboro group will take their victory and go away. Or, maybe they won’t.


  2. Tom Carter |

    Here’s an interesting article. Seems the membership of Westboro Baptist Church consists mainly of the family of Rev. Fred Phelps. The lawyer who argued for them at the Court is one of his daughters.

    Still, freedom of speech is meaningless if even the most objectionable speech isn’t tolerated. So let them go on desecrating the memory of fallen soldiers at their funerals. Someday a gun-totin’ patriot — the kind of person I normally don’t like very much — may send them another kind of message. OK, I didn’t mean that … I guess.


  3. Danny Haszard |

    Harassment by religious extremist

    Jehovah’s Witnesses instigated court decisions in 1942 which involved cursing a police officer calling him a fascist and to get in your face at the door steps,….this same JW 1942 court decision upheld infamous Phelps hate church in 2011
    —-
    Danny Haszard


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