In the battle between the right to offend with free expression and the right to not be offended by free expression, the U.S. Supreme Court this week handed a win to Americans who don’t want to be offended.
The High Court decided not to hear an appeal of a Colorado case that pitted activists against St John’s Episcopal Cathedral in Denver. The church sued the activist group and its leader, Kenneth Scott, for “private nuisance and conspiracy to commit private nuisance” after the protesters gathered outside a 2005 Palm Sunday service, waving images of mangled fetuses and shouting disagreement with the church’s soft stance on gay and abortion rights.
A Colorado Court of Appeals sided with St John’s in 2012, barring Scott’s group from protesting on church grounds during services. That court order, effectively limiting free speech, now stands.
Scott’s attorney, Eugene Volokh, a UCLA professor known for arguing controversial First and Second Amendment-rights cases, was confident the issue would ultimately be resolved in favor of expression.
“This remains as an issue across the country, and perhaps one day the U.S. Supreme Court will hear another case like it,” he told the Denver Post.
Indeed, the court’s action this week seems like an outlier in the legal battles over this kind of protest.
Groups that employ similar tactics have been notching high-profile wins for years. Most notable, perhaps, is the legal track record established by the controversial self-styled Westboro Baptist Church, made up primarily of relatives of founder Fred Phelps and headquartered in Topeka, Kansas. Westboro members travel the country to sites of events sure to draw media attention to make provocative anti-gay statements.
The group most famously gathers at funerals to argue that homosexuality and its gaining acceptance in the U.S. is the root of much pain and misfortune. Westboro has protested at the grave sites of slain U.S. soldiers and victims of hate crimes. The group’s handmade posters rarely fail to make news: “God Hates Fags” and “Thank God for Dead Soldiers” are typical messages.
In 2011, in an 8 to 1 decision, the Supreme Court ruled that Westboro’s offenses constituted protected free speech.
In Colorado last year, religious-right attorney Barry Arrington leaned on the court’s Westboro ruling to defend against a lawsuit filed here by the Southern Poverty Law Center. The Center alleged that a group called Public Advocate of the United States, based in Maryland but working with Dudley Brown, far-right pugnacious head of Colorado-based Rocky Mountain Gun Owners, refashioned a copyrighted image of a gay couple kissing for use on anti-gay state-legislature campaign mailers.
“Plaintiffs claim Public Advocate’s speech defiled a ‘beautiful moment,’” that there was “intentional infliction of emotional distress,” Arrington wrote in his opening argument to the U.S. District Court in Denver (pdf). But none of that matters, he continued.
“This case is governed by the free speech principles recently re-articulated by the Supreme Court… members of Westboro Baptist Church picketed outside [a Marine's] funeral, carrying signs that said such things as ‘Fag Troops,’ ‘Semper Fi Fags,’ ‘God Hates Fags,’ and ‘Fags Doom Nations.’ [Westboro] was sued for intentional infliction of emotional distress… The court held that the Westboro Baptist Church members’ speech was in fact on matters of public concern and therefore completely protected by the First Amendment.”
The story of the campaign fliers is one about Colorado’s accelerating evolution from red state to blue state. But the campaign fliers case, slowly wending toward a decision, is not about gay rights. The anti-gay lobby has lost here on the substance. Like the St John’s case, it’s about the right to offend.