Jewish defense organizations long—and proudly—have upheld a delicate principle in defending the First Amendment: Hate the speech, defend the speaker.
But a Supreme Court case whose arguments were scheduled for Wednesday have put that precept to the test: A Maryland family is suing the Westboro Baptist Church for picketing the funeral of its scion, Matthew Snyder, a soldier killed in a noncombat accident in Iraq.
Jewish organizations that routinely have defended free speech that others might find abusive are sitting this one out. The American Jewish Committee has not filed a brief; the Anti-Defamation League filed a brief arguing that the case has no merit.
The case pits the Snyder family’s right to privacy and protection from defamation against the rights of Westboro church, which is well known for its message that America’s woes derive from its tolerance for homosexuality. The tiny Kansas-based church also has a long record of anti-Semitic activity and regularly pickets Jewish institutions throughout the United States.
“Free speech encompasses hate speech,” said Marc Stern, the associate legal counsel at the American Jewish Committee, “but this church is off the wall. They’re not just saying things, they’re shoving it down people’s throats.”
The Snyders sued Westboro after church founder Fred Phelps picketed the Catholic church where Snyder’s funeral was held, protesting against U.S. soldiers for not rising up and overthrowing the “sinful” U.S. government.
Ultimately the family won $5 million, but an appeals court threw out the award. The Snyders brought the matter to the U.S. Supreme Court.
On the side of the Snyders is a coalition of state attorneys general who argue for the family’s right to privacy. Civil rights groups, led by the American Civil Liberties Union, are defending the Westboro church’s right to political and religious expression.
In its brief, the ADL argues that the court should not have taken the case because there was no actual conflict. Police had separated the protesters from the service to the extent that the Snyders were not aware of the event until afterward, when Matthew’s father read about it online.
“ADL unequivocally condemns the anti-Semitic and homophobic rhetoric of the Westboro Baptist Church and its funeral protests,” said a statement by Deborah Lauter, ADL’s civil rights director. “However, the Supreme Court need not and should not address the constitutionality of their conduct in the absence of a real conflict.”
The key danger, said Steven Freeman, the ADL’s director of legal affairs, is that by addressing a theoretical confrontation instead of an actual one, the court risks ruling in an advisory capacity, expanding the judicial branch’s powers.
“That would set them down a path of issuing advisory opinions, giving advice as opposed to resolving people’s disputes,” he said. “It’s a bad path.”
Westboro increased its anti-Jewish profile about a year ago, picketing outside federations and synagogues, drawing publicity in the process. The anti-Semitic rhetoric in its published materials dates back at least to the 1990s, when the church compared its own tribulations to the persecution of Jews in the Holocaust.
In 2004, writing about Gen. Wesley Clark’s decision to drop out of the Democratic primaries and endorse John Kerry, a Westboro church statement said, “His Christ-rejecting, God-hating Jew blood bubbled to the surface. Yes, like his boss Kerry, Clark is a Jew.”
Clark and Kerry had fathers whose Jewishness was revealed to them only in adulthood.
Freeman said it was clear for a long time that the ADL would be presented eventually with a dilemma about whether to defend virulent anti-Semites and homophobes. In recent years, the ADL has condemned the explosion of hate speech on the Internet but maintained that it is constitutionally protected.
“This isn’t the right case to address this thorny issue,” Freeman said. “We’ve been reporting on Westboro for a long time—by the same token we have a long tradition of defending First Amendment rights.”
Stern, who left the American Jewish Congress and joined the AJCommittee after the decision was made not to file a brief in the case, said the Supreme Court ruling could have broader—and worrisome—repercussions should the court uphold the ruling for the Snyders, who sued the church both for violation of privacy and defamation.
Should the court rule solely on the issue of privacy, the free speech ramifications would be minimal. However, should it emulate foreign courts that have banned certain forms of hate speech, it would amount to a major change in interpretation of the First Amendment.
Stern noted the appeal of such a ruling to otherwise incompatible bedfellows: conservatives who are repulsed by the Westboro church’s targeting of the bereaved, and leftists who in recent years have held that hate language is an instrument of oppression, citing laws in countries such as France, Germany and Israel.
“There are strong free speech arguments for the church,” Stern said. “If the court rules that certain kinds of speech are not protected at all or of such little utility as to deserve protection, that would be a really radical change in American law.”