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Bar News - April 15, 2011

Opinion: Biased Decision? Westboro Baptist Church and Snyder v Phelps


Barbara Keshen
Why do bigots and hate-mongers have First Amendment Rights to say virtually whatever they want, but students donít? That is what I asked myself after I read the recent Supreme Court decision in Snyder v. Phelps.

Snyder v. Phelps concerned the crude and despicable speech of members of the Westboro Baptist Church. Marine Lance Corporal Matthew Snyder was killed in Iraq in the line of duty. On the day of his memorial service members of the church picketed at various nearby public locations carrying signs that such as "God Hates the USA/Thank God for 911," "Donít Pray for the USA," "God Hates Fags," "Youíre Going to Hell," and "God Hates You."

The picket signs expressed the churchís view that the United States is overly tolerant of sin, especially homosexuality, and that God kills American soldiers as punishment. Members of the church routinely picket at military funerals.

Snyderís father sued the Westboro Baptist Church and a jury awarded him $2.9 million in compensatory damages and $8 million in punitive damages, which was later remitted to $2.1 million. The Church appealed, claiming that its speech was protected by the First Amendment. The Supreme Court agreed. Citing well-established principles of First Amendment jurisprudence, the Court found that the pronouncements were public speech because they could be fairly considered as relating to a matter of "political, social, or other concern to the community." Since the speech in question was public as opposed to private speech, it was afforded the highest protection under the First Amendment. The Court cited the oft-quoted language in New York Times v. Sullivan that the First Amendment reflects "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."

Even though the Court found the speech in question undesirable and offensive, it nonetheless upheld the fundamental right of the speaker to utter it. Speech cannot be suppressed simply because it is "upsetting or arouses contempt." The Court wrote that the unwilling listener could shield himself from the speech by averting his eyes or ears.

After reading Snyder v. Phelps, I revisited the 2007 case of Morse v. Frederick. I wanted to see if there was a principled reason for permitting the Westoboro churchís vitriol, but suppressing Frederickís puckish public comments.

Morse v. Frederick involved a high school student who unfurled a banner at an off-campus school-sponsored event that read "BONG HiTS 4 JESUS." The school principal took that to be a message promoting drug use and suspended Frederick when he refused to take the message down. Frederick challenged that decision all the way to the Supreme Court.

The Supreme Court held that "schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use." In order to reach its holding, the Court first addressed the message that the student attempted to convey. The Court stated that although one interpretation of the message is that it is "gibberish," it is also reasonable to interpret the message as promoting drugs. The message therefore violated school policy. However, the Court concluded that the message itself was not "political" in that it did not promote "political debate over the criminalization of drug use or possession." I am not sure why the Court drew that distinction, as my guess is that Frederick would have been suspended even if his sign had read LEGALIZE BONG HiTS 4 JESUS!, a clearly political message.

The Court framed the issue as whether a principal may, consistent with the First Amendment, restrict student speech at a school event when that speech is reasonably viewed as promoting illegal drug use. The Court concluded that it could.

First, the court addressed the issue of student speech in the school setting. The Court reiterated what had been said in prior student speech decisions, that there are "special characteristics of the school environment" which permit restrictions on speech that would otherwise be deemed impermissible under the First Amendment. The schools have a "custodial and tutelary" responsibility for children.

But more importantly, the Court stated that there is an important, perhaps "compelling" interest in deterring drug use by children. The special characteristics of the school environment combined with the governmental interest in stopping student drug use allow schools to restrict student expression that they reasonably regard as promoting illegal drug use.

The studentís speech at issue was public speech, just like the Westboro Baptist Churchís signs were public speech. Frederickís message was a matter of political or social concern to the community, since students are routinely being denied privileges, subjected to searches, or even suspended from school for actual or even suspected drug use or possession. Any unwilling "listener" could avert his eyes from the sign. Frederickís message may have amused some and offended others, but it was unlikely to cause the emotional distress and revulsion of the message of the Westboro Baptist Church.

The foundation of the Courtís decision seems to be that students need to be protected from viewpoints that challenge those of the administration. But do high school students really need to be protected from opposing viewpoints? One of the skills that citizens need to possess is the ability to weigh facts and sort through conflicting opinions. We donít teach good citizenship skills when we suppress one side of a debate. If Frederickís message had no merit, then wouldnít a high school student have sufficient sophistication to reject it?

Frederickís message could have been used to promote "uninhibited, robust, and wide-open" debate about the use of drugs. It could have been used as a real teaching moment to educate students about the health risks inherent in drug use, or the adverse legal consequences of drug use, or even about the ways that the drug war has affected our society. The schoolís reaction was an opportunity lost. And the courtís support of the school undercuts the very principles that this country holds most dear.

I am not suggesting that we give credence, or even respect to radical ideas. But we do need to support healthy debate about sensitive subjects in the controlled, intellectual and inquisitive atmosphere of a school environment. We need to teach our students, our future voters, how to rebut ideas with logic and reason, not with suppression and censorship.

Barbara Keshen is a staff attorney at the NH Civil Liberties Union in Concord. You may contact her at

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