Sticks & Stones May Break My Bones, But Words Will Never Hurt Me?

A question that has been raised more and more frequently since the latter half of the twentieth-century is “How much pathos is to be protected in speech?” or even more succinctly, “How much can a speaker offend an audience before it is punishable by law?” It is my claim that expression should be protected at all costs, in any form, until that expression leads to an audience member’s provocation to fight or fear for their life and that a “harm” theory would best serve the citizens of the United States.

The case of Snyder v Phelps is a perfect example of a case in which, before a verdict can be reached, assessing this question is necessary. The Westboro Baptist Church, led by Rev. Fred Phelps, has become known for picketing outside of the funerals of deceased soldiers waving signs that read “God Hates You,” and “Thank God for Dead Soldiers.” The church, consisting of 70-some members, almost exclusively Rev. Phelps’ relatives, have made demonstrations like this for around 19 years. Their philosophy is that American soldiers are being killed by God in order to punish the country for being open to homosexuality.

In recent times, in part because of these protests by the Westboro Baptist Church, a number of states have approved laws that restrict the rights of funeral demonstrators.
The father, Albert Snyder, of Marine Corporal Matthew Snyder who had been killed in Iraq filed a lawsuit against the Westboro Baptist Church, after they protested outside of his sons’s funeral in 2006. Snyder was originally granted almost eleven-million-dollars in damages for physical and mental trauma by the federal Jury in Maryland. The 4th U.S. Circuit Court of Appeals discarded the Maryland verdict because, according to them, the picketing was protected under the First Amendment guarantee of freedom of speech. The case has now been sent to the Supreme Court. It is my claim that, as a U.S. Supreme Court Justice, the speech used in the demonstrations outside the funeral in the case of Snyder v Phelps, is protected by the First Amendment right to freedom of speech.

When examining the Expression-Action Theory of freedom of speech philosopher Thomas Emerson, in relation to case of Snyder v Phelps, the demonstration by the Westboro Baptist Church must be protected as freedom of speech. Emerson begins his explanation of the Expression-Action Theory by stating that included in freedom of expression is the right to “form and hold beliefs on any subject and to communicate those beliefs to others by whatever medium one chooses,” as written by Thomas L. Tedford and Dale A. Herbeck in Freedom of Speech in the United States. In applying this argument to the facts of the case, the members of the Westboro Baptist Church were merely expressing their beliefs, however irrational or irreverent, through protest, their medium of choice. As argued by Ken Paulson of the First Amendment Center, all American citizens have the right to publicly state their beliefs, even if those beliefs are illogically conceived. Emerson also clearly distinguishes the difference between expression and action in relation to the speaker. He argues that expression is always to be allowed and encouraged while action can be controlled if need be. Again, the funeral protesters were stating their views through picketing and protesting, which is, under the laws of freedom of speech, protected as expression and not action.

Although the protection of the expression of the speaker’s viewpoint is protected as free speech, it is obvious that the speech demonstrated by the members of the Westboro Baptist Church was offensive and possibly harmful to those suffering the loss of a family member. At this point, the topic of our discussion comes to the forefront. It is questioned whether or not emotional damage that stems not from action, but from expression, is punishable by the United States law. Emerson points out four problem areas in his Expression-Action Theory in which, depending upon specific circumstances, the protection of expression may or may not be upheld. These four problem areas include sedition, defamation, obscenity, and provocation to anger. The one that relates to the Snyder v Phelps case is the provocation to anger. He argues that in general, the audience is responsible for themselves. This means that, most of the time, when an audience member is angered by the words of the speaker, it is their duty to remove themselves from the situation or restrain themselves from acting upon their anger. However, Emerson does contend that when the words are spoken directly to the audience member in a way that provokes a fight, the speech is no longer protected. Although the words and views expressed by the protestors likely angered the family members of Matthew Snyder, they were not spoken directly to the father, Albert. There was no immediate danger of an outbreak of a fight, and therefore, I argue that the situation called for the audience member (Albert Snyder) to take responsibility for himself.

This is better explained after examination of the juxtaposition between the cases of Collin v Smith and Frisby v Schultz. In Collin v Smith, the U.S. Court of Appeals for the Seventh Cuircuit, protected the rights of an American Nazi party to march about Skokie, Illinois, which had a predominantly Jewish population. Frisby v Schultz on the other hand, banned residential picketing after anti-abortion protesters had demonstrated outside a physician’s home who performed abortions. The underlying message in the context of these two cases is that expression will be protected until someone is singled out in hopes of a provocation to anger. Emerson also argues, as one of his core functions and values of the Expression-Action Theory, that freedom of expression is protected as a means of “achieving a more adaptable and hence a more stable community, of maintaining the precarious balance between healthy cleavage and necessary consensus.” He is arguing that freedom of speech should be protected because, among other reasons, it will help create a more “adaptable and stable” community. I argue that, although I do not agree with the messages/viewpoints of the speakers, they have the right to express them in order to make the community more adaptable; it will help the community be more open to change and the examination of different viewpoints.

In fact, Ken Paulson, again argues that “hateful comments that refer to public issues are protected.” He explains that, although the members of the church expressed harsh and demeaning statements, they were protected by the court to express their opinions on gays in the military. On the other hand, Paulson does see the tug and pull of both sides saying that “The Westboro Baptist Church is acting on its faith, while the Snyder family believes it was deprived of its rights to worship and to assemble.” That is why they are only protected so long as they do not commit verbal acts in a direct encounter.

The Cohen v California case of 1971 has much relevance to this issue. In the inciting incident, Paul Robert Cohen wore a jacket that said, “Fuck the Draft” on it and was consequently sentenced to thirty days in jail. Upon reaching the U.S. Supreme Court, in which the verdict was reversed, it was determined that only words that meet a localized clear-and-present-danger test shall be punishable. Justice Harlan, in delivering the opinion of the court, made the point that language is chosen not only to describe a situation or state a fact, but also to evoke emotive content from both the speaker and the audience. He said, “It conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force.” This, in terms of the Snyder v Phelps case, backs up the idea that despite the fact that the speech of the protesters was emotionally evocative, it is protected because it posed no clear-and-present-danger, in terms of provocation to anger, to the funeral attendees.

Another important case to look at, in terms of its relation to Snyder v Phelps is Wisconsin v Mitchell. Todd Mitchell, a young black man, rallied a group of other black men to attack a white boy. He said, “Do you all feel hyped up to move on some white people?” and “There goes a white boy; go get him.” He was convicted of aggravated battery which was eventually upheld by the U.S. Supreme Court. They upheld the conviction after the Wisconsin Supreme Court did not, because the verdict was based on the conduct of Mitchell. This refers back to the conduct, or action, part of Emerson’s Expression-Action Theory in which action is condemnable but expression is not.

After looking at the precedents set by the U.S. Supreme Court combined with the Expression-Action Theory created by Thomas Emerson, it is clear that in the case of Snyder v Phelps, the speech of the members of the Westboro Baptist Church should be upheld under the protection of freedom of speech. Although their speech was irrational, illogical, and derogatory, and I do not agree with it in the slightest, after examination of the theories presented by Emerson and the precedents set by the U.S. Supreme Court, specifically in the cases of Cohen v California and Wisconsin v Mitchell, as well as the history of the clear-and-present-danger test, I have no choice but to uphold the Fourth Circuit Court of Appeals finding.