Legal Commentary

Not surprisingly, as a journalist and lawyer, I feel very strongly about the right to free speech. Nothing makes that position stronger than seeing what happens when dictators and governments try to suppress those rights, as we continue to see in China, Iran, Libya, and so many other places across the globe ? and sometimes, even at home. 

But exercising this fundamental human right is not without pain ? as when members of the Westboro Baptist Church spew venom in the name of God when they demonstrate at the funerals of soldiers who have been killed in Iraq. These "churchgoers" celebrate the deaths of young men and women as revenge for the United States' tolerance of gays and lesbians.

Yesterday (March 2), the U.S. Supreme Court, by an 8-1 vote, ruled in favor of the Topeka-based "church." Said Chief Justice John Roberts, writing for the court: "Speech is powerful. It can stir peple to action, move them to tears of both joy and sorrow, and ? as it did here ? inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker." 

In February, 2008, Claire Duffett, then news editor of Law Technology News, wrote a fascinating story about the underlying trial, for our "Technology on Trial" series. In "War of Words," she chronicled how the legal team for Albert Synder, who buried his only son, was able to use Westboro's own videos of their demonstrations, into powerful testimony for the plaintiffs in Albert Snyder v. Fred W. Phelps, Sr. et al., Civil No. RDB-06-1389, which went to trial on October 22, 2007 in the United States District Court for the District of Maryland Northern Division, before Judge Richard Bennett.

The plaintiffs won the first round of the litigation: "The jury deliberated for one day, returning on Oct. 31 to declare the church liable for intentional infliction of emotional distress and invasion of privacy. It awarded $2.9 million, with an additional $8 million in punitive damages," but participants recognized that the victory might not stand up. 

Duffett concluded her article with this prescient statement: "If overturned, the plaintiffs could take solace in a famed 1919 dissent by U.S. Supreme Court Justice Oliver Wendell Holmes Jr.: "We should be eternally vigilant against attempts to check the expression of opinions that we loathe."