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Westboro Ruling: The Bad and the Uglier for the Greater Good

03/03/2011 04:08 pm ET | Updated May 25, 2011

When it comes to public issues, sometimes we need to accept a little bit of the ugly for the greater good. The Supreme Court solidly affirmed this with regard to free speech on Wednesday when it ruled that the Westboro Baptist Church's offensive protests outside the funeral of a fallen Marine is a form of protected speech.

Certainly, the church's message that the decline of American morals is the cause of death, despair and disasters is not a message many Americans can stomach. Chief Justice John Roberts acknowledged that the small church's message may be "morally flawed," but it is protected speech nonetheless.

Writing for the 8 to 1 majority in Snyder v. Phelps, the Chief Justice also acknowledged that speech in a public place about public issues not only deserves but demands First Amendment protection.

Providing a forum for these types of messages on public issues is central to the purpose of the First Amendment. There were times in our history when speech and protests on such causes as civil rights, women's rights, equality and peace were considered unpopular and in need of protection. (This is, of course, not to equate the Westboro Church's message with those vaunted causes.)

The complicated legal dispute in this case emanated from a private civil lawsuit filed by Albert Snyder, after a small group of church members staged a hateful protests outside the funeral of his son, Lance Corporal Matthew Snyder, who was killed in duty in Iraq. The protest was followed by a posting on the church's website.

Mr. Snyder brought a civil action based on an array of state tort laws, and won damages totaling $10.9 million. The key question before the court was whether the tort of intentional infliction of emotional distress (IIED) was viable under the circumstances. Could a civil action be used to recover damages for offensive and disturbing speech?

This was not the first time the Supreme Court looked at IIED through the lens of the First Amendment. In 1988, the Supreme Court found the tort unavailable to the Rev. Jerry Falwell, the well-known televangelist and leader of the Moral Majority, who was seeking damages against Hustler magazine for publishing an offensive ad parody about him. Ultimately, Falwell's case failed under the First Amendment because of his status as a public figure and the satirical content of the offensive copy which had significant political and social content.

In determining whether Mr. Snyder had a viable claim, the court not only looked at the elements of the cause of action -- intentional or reckless extreme and outrageous conduct that causes severe emotional distress -- but also the content and context of that offensive speech, which puts it in the realm of matters of public concern.

"While these messages may fall short of refined social or political commentary, the issues they highlight -- the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy -- are matters of public import," Chief Justice Roberts wrote.

It is a shame that opportunistic crackpots are seizing upon tragedies and the pain suffered of the families of heroes and victims of unrelated events. The lone dissenter, Justice Samuel Alito, refused to accept the church's message as anything more than brutal attack on a private family. This message added nothing to the marketplace of ideas and was not worthy of protection, Justice Alito wrote.

But for every Westboro Church protest, there is a debate on legitimate public policy or government abuse that also demands protection.

The role of public debate is alive all around us, whether in a heated march on organized labor in the Midwest; or anti-tax and spending movements leading up to elections; or mass demonstrations leading to political change in the Middle East.

Here, the First Amendment exists to not only allow but to foster and protect debate -- even caustic, hostile, hurtful and "morally flawed" debate.

Roy S. Gutterman is an associate professor of communications law and journalism and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University