How the Supreme Court Could Crack Down on Westboro Baptists’ Funeral Protests

The comedians at Westboro Baptist Church have the right to say mean, terrible things about Americans, even while they’re being buried — or so we’ve argued. But what if the Constitution, which bars the government from inhibiting the freedom of expression, does not bar the government from creating a law that lets private citizens do just that?

This is less a thorough legal argument on our part and more of a thought exercise, but let’s roll with attorney Nathan Tucker’s interesting premise.

The father of the fallen marine, Albert Snyder, sued the protesters for, among other things, intentional infliction of emotional distress. The jury awarded Mr. Snyder $5 million in damages, a verdict that was later overturned by the Fourth Circuit Court of Appeals on the grounds that the protesters’ speech was protected by the First Amendment. The First Amendment, however, provides that, “Congress shall make no law ? abridging the freedom of speech.” But there is no federal, state or local law at issue in this case. No one is arguing that the government tried to suppress Mr. Phelps’ speech in any way. This suit is entirely private in nature. It involved the offensive remarks made by one private individual against another private individual at a private event. In a type of personal injury suit, the aggrieved party sued the harasser in court for emotional damages.

How, then, does the First Amendment apply to this case at all? In cases such as New York Times v. Sullivan and Shelley v. Kraemer, the Supreme Court attempted to justify the First Amendment’s reach into private suits by relying on the tenuous argument that, because the power of the state is used to enforce the verdict (through the court system), the government is suppressing the speech at issue.

In essence, the court reasons that, since the court system coercively transfers money from A to B because of A’s speech, that it becomes a government restriction on speech. It is an ingenious but dangerous argument that brings every single court action under the Constitution’s orbit. So long as there is a plausible political or social commentary behind one’s actions, he is now immune from liability. If this were the case, a minority resident would have no recourse against his prejudiced neighbors if they decided to demonstrate outside his property every night, day after day. Or a host could not evict a rowdy house guest who was becoming verbally abusive if that guest was doing so as a political commentary. And suits for slander and libel would be impossible.

And taking the court’s precedent to its logical conclusion, no one could sue for monetary damages because, if awarded, the court would be depriving the defendant of private property without just compensation, in violation of the 5th Amendment. And no marriage could be dissolved, because the Contract Clause prohibits states from breaking contracts. Since these results were clearly not intended by the Constitution, the court should use this case to overrule its past precedents and affirm that the mere application of neutral principles to enforce private suits does not constitute government action. The Constitution was intended to only govern public behavior — not private.

It’s one helluva snowball, but were the justices to limit their reasoning to a narrower scope, we could see it.