JURIST Guest Columnist Kevin Govern of Ave Maria School of Law considers the life and times of the late First Amendment advocate-antagonist Fred Phelps …

JURIST has previously examined the strident First Amendment struggles of the Westboro Baptist Church (WBC), founded in Topeka, KS in 1955, that became notorious for picketing military funerals, public events and businesses, attacking Christians, Jews, gays and others with hateful signs and shouted slurs. That church’s charismatically confounding founder, Fred Waldron Phelps, died at age 84 on March 19, 2014. Phelps ironically turned down a West Point appointment and a career in the military, to serve as civil rights advocate, only to be disbarred in his home state for having “little regard for the ethics of his profession,” and then served as an ordained minister of God to preach a false gospel of hate. With his passing, perhaps America will find relief from his outrageous efforts to defame and outrage others while seeking the protection of the First Amendment.

The Phelps saga became particularly poignant for me almost exactly nine years before Phelps’ demise, when I served as a casualty assistance officer for the family of a fallen Soldier. In my 23 years of being an Army officer, the most difficult—and important—task in peacetime and in war that I ever performed was aiding and comforting the family of Cpl. Manny Lopez. Lopez died in Baghdad, Iraq, on April 12, 2005, when a rocket-propelled grenade struck his Humvee.

As I have reflected on this in print in the past, it took many days and the help of dozens of federal, state and local officials of many ranks and responsibilities to organize proper and dignified honors for Lopez, as our collective token of appreciation for his honorable and faithful service. I will never forget the hundreds who came in quiet respect from far and wide to commemorate his life, and to show their pride in their departed friend and loved one.

That is why the case of Snyder v. Phelps especially gripped me five years later as a citizen, a lawyer and as a recently retired Soldier. The US Supreme Court heard oral arguments in 2010 on what was—and continues to be the most controversial First Amendment “freedom of speech” case of our times. It involved Phelps’ WBC, and one of many military funerals they have chosen to picket out of the “922 cities” visited by the WBC to date, or the “52,337 pickets “over the “6,801… soldiers that God has killed in Iraq and Afghanistan,” as according to the WBC’s website.

On March 10, 2006, Phelps and his church picketed the funeral of Lance Cpl. Matthew A. Snyder, a Marine who died in combat in Iraq on March 3, 2006—nearly a year after Lopez. Picket signs included, but were not limited to, the following quotes: “Semper Fi F** (anti-Gay epithet),” “Maryland Taliban,” “Matt in Hell,” “You’re Going to Hell” and “God Hates You.”

Phelps’ picketing presence created what local law enforcement considered a credible threat of violence. Snyder family attorneys cited how, at no small cost to the taxpayers, a SWAT team, a command post, local, county and state police, a traffic engineer, communication clerks, the fire department and ambulances were called to the funeral area on standby to prepare for violence that might follow from Phelps’ inflammatory efforts. Through counsel, the Snyder family also noted how Phelps disrupted the funeral, prevented normal access to the church campus and “changed the entire atmosphere of the religious services for Snyder and his family into a ‘negative and circus-like atmosphere during a solemn and religious occasion.'” The protests also purportedly led to an elementary school lockdown across the street from the funeral site.

As a result, legislatures around the nation worked on enacting laws to ban funeral protests. The Snyder family also sued; and in 2007 a federal jury found Phelps, his church and his two daughters liable for defamation, invasion of privacy and intentional infliction of emotional distress. That court awarded Snyder’s father $2.9 million in compensatory damages, $6 million in punitive damages for invasion of privacy and an additional $2 million for causing emotional distress. Phelps and his co-litigants successfully appealed that this speech was protected under the First Amendment. Incurring further expense and effort, the Snyder family appealed, then successfully received a grant of certiorari for the US Supreme Court to hear this case.

In 2011, our Supreme Court justices considered not only the words, but also the context of what Phelps and his disciples said—and where and how they said it. Our nation’s highest court determined whether freedom of religion and assembly is subordinate to—or coequal with—the freedom of speech. Its collective wisdom considered whether the Snyder family was effectively a “captive” audience and could not escape the epithets that Phelps specifically targeted against the Snyder family, funeral attendees and the public at large.

The nine justices weighed the value of unfettered free speech against the intentional harm inflicted. The court judged the liberty at stake against Phelps’ disruption to the Snyders’ mourning process. Unfortunately for families whose sons, fathers, daughters and mothers gave what Abraham Lincoln called “the last full measure of devotion,” and as a further insult to the bereaved and the aggrieved who suffered Phelps’ incendiary invective, the court blithely ruled that:

Speech is powerful. It can stir people 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. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

A lone voice of reason, that of Justice Alito, rang out from a moral high ground to pronounce that “[o]ur profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” and while “[t]he Court [held] that the First Amendment protected respondents’ right to brutalize Mr. Snyder, [he, Alito] cannot agree.”

I thank our Members of Congress for passing the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, and especially Sec. 601’s Prohibition on disruptions of funerals of members or former members of the Armed Forces, finding the inspiration and the authority under Article I, section 8, paragraphs 1, 12, 13, 14, 16, and 18, for the freedom from disruption to:

Provide for the common defense, raise and support armies, provide and maintain a navy, make rules for the government and regulation of the land and naval forces, and provide for organizing and governing such part of the militia as may be employed in the service of the United States.

I earnestly pray for Fred Phelps, and those misled by him. More fervently, I pray for the repose of the souls of Cpls. Lopez, Snyder and all of our fallen heroes, that their sacrifices might serve as exemplary precedent for all Americans.

Professor Govern began his legal career as an Army Judge Advocate, serving 20 years at every echelon during peacetime and war in worldwide assignments involving every legal discipline. In addition to currently teaching at Ave Maria School of Law he has also served as an Assistant Professor of Law at the United States Military Academy and teaches at California University of Pennsylvania and John Jay College. Unless otherwise attributed, the conclusions and opinions expressed are solely those of the author and do not reflect the official position of the U.S. Government, Department of Defense, or Ave Maria School of Law.

Suggested Citation: Kevin Govern, The Passing of Fred Phelps and Challenges to First Amendment Freedom of (and from) Speech, JURIST – Forum, Mar. 23, 2014, http://jurist.org/forum/2014/03/kevin-govern-phelps-westboro.php.