A classic illustration of the maxim’s application is found in a recent US Supreme Court decision in Snyder v. Phelps. The Court ruled, 8 to 1, that the disgraceful demonstration by members of the Westboro Baptist Church at a funeral in Westminster, Maryland, was properly allowed as free speech under the First Amendment to the Constitution. The decision has not been well-received by the general public.
The Church members were protesting at a military funeral of Matthew Snyder, a Marine, who was killed in Iraq. Though the deceased young man was not gay, the demonstrators carried signs such as “Semper Fi Fags”, “Fags Doom Nations”, and “Thank God for Dead Soldiers”. As you can imagine, the protest was a cruel experience for the family of the Marine; and Albert Snyder, the decedent’s father, commenced litigation seeking damages from members of the Church for the extreme distress his family and he experienced.
It is said that Justice John Roberts who wrote the majority opinion delivered it orally in an apologetic and sorrowful tone, but he concluded that the Court”s protection of free speech forced the Court to its decision. He stated that “as a nation we have chosen to protect even hurtful speech.” That the protest was peaceful and on public land apparently were factors in the Court’s deliberation, but it made no difference to the Court that the Snyder petition had the support of 48 of the states.
The Court ruled that because the rights of the protesters were so clear as a matter of law, the question should not be allowed to go to a jury to make a factual ruling. At the trial in a lower Court, Mr. Snyder had been awarded $10,800,000; this was voided by the Supreme Court’s ruling.
The dissenting opinion of Justice Samuel Alito, Jr., as a minority of one, argues that the grave injury that was afflicted intentionally and maliciously must be balanced against the principle of free speech; and obviously he concluded that the protesters’ malice crossed a line which should cause them to lose their First Amendment protection. He rejected the argument that the fact it occurred on public land made a difference.
The maxim quoted at the outset implies that rulings made under average circumstances, outside that glare of publicity, are much more likely to be accepted by the general public. Still, the Snyder decision, which crossed party affiliations in its near unanimity, emphasizes the most important principle of all: we are a nation of laws, not men. It should not matter who is in charge of government; the rules do not change. The first casualty of a dictatorship is inevitably free speech.
The obvious irony is that Matthew Snyder died protecting the very principle which caused the Church to prevail in this action. You would hope that at some point the members of the Church would reflect on the pain they have caused and refrain from similar protests. And, if they really think about it, the ultimate irony is that they have probably enhanced the image of the gay community by their actions.
— Ken Butera