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Commentary: American law works to be right long term

My guess is that there was not a single member of the United States Supreme Court who was not personally appalled that the Westboro Baptist Church would target the funeral of a soldier who died in battle so they could get publicity for their anti-gay views. It is hard to think of any good reason why the Snyder family, having lost their beloved (and, if it matters, not gay) son while serving his country in Iraq, should be exposed to such abuse. And it's easy to understand why they would sue and seek the kind of damages that would ensure Westboro could not continue to abuse others.

Earlier this week, the Supreme Court held in an 8-1 decision that the Snyders could not recover for the emotional distress intentionally inflicted on them, even though no one doubts that it was or that it was done so intentionally. With only Justice Samuel Alito dissenting, the Court's four liberals, all Democratic appointees, joined the remaining four conservatives, all Republican appointees, to hold that the First Amendment protected the church from being called to answer for the pain it had caused.

"Speech is powerful," Chief Justice John Roberts declared, writing for the majority. Here, two reasons demand its protection, the Court held. First, however inarticulately and crudely, the signs and taunts of the Westboro Church members went directly to issues of public importance, which "occupies the highest rung of the hierarchy of First Amendment values." Second, the church members complied with all other laws applicable to the time, place and manner of public assembly. The church members "had the right to be where they were" -- 1,000 feet from the site of the funeral. The distress, then, "turned on the content and viewpoint of the message conveyed," which is precisely what the First Amendment protects.

Of course, the First Amendment says nothing about content restrictions being the worst kind of regulation of speech. Nor does it say anything about speech on public policy issues occupying the "highest rung." It doesn't say anything about time, place and manner restrictions, or how far protestors can be kept away, so long as the rules apply to everyone. All it says is that "freedom of speech," along with a free press and the right to assemble and petition for grievances, shall be protected. That's it.

The rest has come from judges, especially Supreme Court justices, mostly in the last hundred years, who have gone way beyond divining the intent of the Founders to develop a whole body of law as to what the First Amendment does and does not protect. The law has obviously changed over time, often (albeit not explicitly) to reflect the various wars (the Red Scare, for instance) we have faced and the fear they engender.

But here's the part that gets lost in the assumption -- reinforced by the confirmation processes of the past two decades and by close majorities in some big cases -- that it's all just politics: If it were all "politics," Westboro would have lost and the soldier's family would have won.

There is still such a thing as "law," even if a new conservative Court could theoretically jettison it all. Yes, there are close cases. But there are many more that are not close because, as here, two centuries have yielded a "right" answer, even if it is judge-made.

Susan Estrich's e-mail address is