Every few years the Supreme Court does something that makes about 60% of the country roll its eyes.  In 2002, what it did was select our 43rd President, in 1942, what it did was uphold the conviction of a man named Walter Chaplinsky for calling police “damned fascists” in violation of a New Hampshire law that basically said citizens could not be rude to one another under any circumstances. 

Chaplinsky, a Jehovah’s Witness, was on the street in New Hampshire, doing whatever Jehovah’s Witnesses do, when police demanded that he move to a less desirable location.  Even though there are only 7 million Jehovah’s witnesses in the world, at the time of his arrest, Chaplinsky was carrying out the best-attended evangelism session in the history of the church and had amassed a “large crowd” which police believed was blocking traffic on a nearby street.  Chaplinsky was so incensed by police asking him to take his pulpit elsewhere that he launched the now-famous verbal missiles that got him thrown in jail. 

In reaching its decision, Justice Frank Murphy, writing for the unanimous court, created a two-tiered doctrine with respect to first amendment rights that said that several types of speech, including speech that is lewd, profane and libelous may be punished without violating the first amendment.  In Chaplinsky’s case Murphy said the words were "fighting words”, and maintained that “by their very utterance they “inflict injury or tend to incite an immediate breach of the peace”.

Yesterday, nearly 50 years later, the court protected the speech of Fred Phelps and the rest of his followers at his Topeka Kansas, based Westboro Baptist church who picketed the funeral of Mathew Snyder, a soldier killed in Iraq, and in so doing, put me on the same side of an issue as Sarah Palin and perhaps more troubling, Simple Sam Alito.  

The lovely people of Westboro Baptist church are famous for many things, but you might know them best for their anti-gay picketing appearances at such memorable events as Mathew Sheppard’s funeral, and other funerals of prominent hate-crime victims, and pretty much any funeral for anyone who dies in a way that makes people sadder than normal, such as the victims of school shootings, or soldiers who die while fighting in Iraq.

At first, this business of connecting the deaths of soldiers, teenagers or coal miners with a hatred of gay people seems totally delusional, but after carefully examining the ins and outs of Westboro’s arguments, it still pretty much seems delusional, but makes sense only is so far as it works to create buzz for the crazy beliefs of otherwise forgettable hicks.  But in this great land of ours, our constitution provides that our speech will be protected, even if that speech is brightly-colored signs that say “God hates gays” or “US NAVY” with a depiction of two men engaged in amorous contact which are loathsome to all but the 71 members of Fred Phelps’ beady-eyed family being displayed within spitting distance of a child's burial plot.

In yesterday’s opinion, Justice Roberts, writing for all but one of his bench mates, noted that Phelps and his followers displayed signs across the street from  Snyder’s funeral that included  “God Hates the USA/Thank God for 9/11,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “God Hates Fags,”“You’re Going to Hell,” and “God Hates You” but concluded that because these messages were not accompanied by violence, threats or obscenities, and “given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to ‘special protection’ under the First Amendment and cannot be restricted simply because it is upsetting or arouses contempt.

Incidentally, the opinion also noted that because the service was held at a Catholic church, the protestors also carried signs that said “Pope in Hell” and “Priests Rape Boys” which I assume were protected speech because they were true…mostly.

In his characteristically straightforward dissent, Alito noted that Phelps and his ilk are free to profess their stupidity in a million places, and that the government need not protect their right to do it in a place where it serves only to brutalize a grieving family at a private burial ceremony.  Alito smartly notes that Westboro’s seemingly bizarre connection of its broad social agenda with individual tragedy is not a “societal” message as the majority suggests, but merely an assault on private citizens in an exploitation of 1st amendment doctrine as a means to maximize exposure for its bizarre beliefs. 

From the court’s opinion it appears 1st amendment protection is not absolute in the sense that it would not protect Westboro if it decided to blow up a person in their car to protest the repeal of Don’t Ask Don’t Tell, but it’s less clear how they’d rule if the car was old, or if it was a scooter.

As part of his dissent, Alito mentions ol’ Walt Chaplinsky, to note that the court has recognized that words may “by their very utterance inflict injury” and that the First Amendment does not shield utterances that are of such slight social value that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Times sure have changed since 1942 and this is no longer Walter Chaplinsky’s America.  I never thought I’d say it, but some damned fascists would come in handy once in a while.