Freedom and Sensitivity

There is a difference between having rights and exercising them

Earlier this month, the Supreme Court released its most controversial decision of the term, ruling that protests at military funerals were protected under the First Amendment’s freedom of speech clause. In Snyder v. Phelps, the Court was asked to rule on the constitutionality of a fine imposed on the Westboro Baptist Church for the “intentional infliction of emotional distress” while protesting at Marine Lance Corporal Matthew Snyder’s funeral. According to the Court, the fine overstepped constitutional bounds by punishing speech protected by the First Amendment. Nonetheless, the Court’s opinion overlooks two crucial distinctions. First, it overlooks the difference between restrictions on freedom of speech and restrictions on the how, when, and where of speech. Second, it overlooks the difference between possessing rights and exercising them.

In this case, the Court determined that fining the Westboro Baptist Church would amount to punishment for exercising its legitimate First Amendment rights. However, the Court failed to acknowledge that the location and timing of particular forms of speech can be restricted without infringing on freedom of speech itself. The fine was not meant to punish the Westboro Baptist Church for the content of its message—which was anti-homosexual in nature—but for choosing to express that message in an inappropriate context, when a family was attempting to privately mourn its loss. Imposing a fine does not suggest that the Church cannot express its viewpoints, simply that it can’t do so at certain times and places—in this case, at a military funeral.

An even more crucial distinction relates to the difference between possessing rights and exercising them—the difference between freedom and sensitivity. Undoubtedly, the Westboro Baptist Church has a constitutional right to express its views; however, when it expressed those views in an insensitive way, it became liable for the consequences of its actions—in this case, the intentional infliction of emotional distress. The Church’s actions could clearly have caused emotional harm to Snyder’s family; in an online post published the day after the protest, the Church addressed the fallen Marine’s parents, saying that “[T]hey sent [Matthew] to fight for the United States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life. … How dumb was that?” The post also included attacks on Snyder’s involvement in the “largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity.”

These personal attacks on a service member overstep all bounds, especially moral. By choosing to protest at Snyder’s funeral—by choosing to verbally brutalize his mourners and his memory—the Westboro Baptist Church intentionally inflicted harm on his family. Even if the organization had the constitutional right to engage in its vicious assault, members shouldn’t have exercised this right in an insensitive way; when they did, they exposed themselves to charges of intentional infliction of emotional harm, a just consequence of their disrespectful acts. Instead of elevating the Church’s freedom of speech rights at the expense of all other claims, the Court should have recognized that the Marine family’s deserves to mourn its loss in peace. That right went unprotected by the justices’ casual elevation of insensitive and personally hurtful speech.

With the rights guaranteed by the Constitution come obligations. If Americans are worthy of these rights, they need to employ them responsibly, recognizing that the possession of a right doesn’t always justify its unrestricted exercise. The Westboro Baptist protestors didn’t do so, and as a result, they should have been subject to the just fine that the Supreme Court excused them from paying.


Peter M. Bozzo ’12, a Crimson editorial writer, is a Government concentrator in Eliot House.