Mar 02, 2011 The Westboro Supreme Court victory from my perspective as lead trial counsel
Today, the Supreme Court affirmed the Westboro Baptist Church’s Fourth Circuit First Amendment victory.
Although I did not handle the appeal, I was lead defense counsel (representing the Westboro Baptist Church and its pastor Fred Phelps) in this case’s 2007 over-weeklong trial in Baltimore before U.S. District Court Judge Richard Bennett. Here, I have chronicled some of my experiences defending this case, and my thoughts about the WBC.
My decision to defend the WBC’s First Amendment rights goes to the very core of my conviction that we must assure full First Amendment protection to the most vile speech in order to fully protect speech that we see as legitimate and essential. The First Amendment is not amenable to picking and choosing who benefits from it.
The First Amendment necessitated WBC’s 8-1 Supreme Court victory. The Court’s holding in this case speaks of being narrowed to communicating on matters of public concern on public property. Fortunately, the Court rejected petitioner Albert Snyder’s urging to carve out a First Amendment exception for funeral picketing, even here where the picketing was around a thousand feet from the church where the funeral was held.
At trial, the jury was permitted to hear about WBC’s online comments about Matthew Snyder, whose funeral WBC members picketed, and his parents. The Supreme Court ruled that Mr. Snyder’s certiorari petition waived raising anything but the picket before the Court. .
The tide has turned from a multimillion dollar jury verdict against WBC to a full vindication of its First Amendment rights in this case.
With WBC, one day they are picketing soldiers’ funerals, the next day places where gay people get together, and the next day synagogues; and often they do multiple pickets in a day. I advocate a robust marketplace of ideas, and insodoing, I strongly reject the WBC’s messages.