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42 Senators Weigh in on the Wrong Side in Snyder vs. Phelps

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In the heated discussion of the Supreme Court’s consideration of the controversial Snyder vs. Phelps case, one aspect of the case is not getting a lot of attention and perhaps it should. Among those taking sides is a group of 42 Senators who have filed an amicus curiae brief on the side of the plaintiff and in opposition to the free speech rights of Westboro Baptist Church Pastor Fred Phelps and his crew of fanatical protesters.

While no reasonable person could condone Phelps’ behavior or beliefs, under the First Amendment to the Constitution, even those who hold bigoted and utterly reprehensible beliefs have a fundamental right to free speech which cannot be legislated away and should not be limited or negated by the ruling of any court. Unfortunately, not everyone agrees.

This group of misguided Senators who are attempting to throw their weight around and influence the Supreme Court to rule against the Bill of Rights, have lost touch with the most fundamental principles on which our free society is founded. They seem to have forgotten that they swore an oath to uphold the Constitution and are choosing to pander to public sentiment when they should be standing up for our fundamental rights. Yes, no one likes seeing protesters at the funerals of soldiers, but those soldiers died to defend our rights and our Constitution and taking away those rights in their name is even more offensive than the misguided actions of these protesters.

Most of the Senators who signed the brief are Democrats, and I suppose we should expect no less from members of a party which has worked hard to degrade and diminish the individual liberty and Constitutional rights of our citizens in the last two years. However, I am personally offended that thirteen of these Senators are Republicans who have forgotten the fundamental principles on which the Republican party was founded.

Not all Republicans agree. In a recent press release the Republican Liberty Caucus asks “If these Senators stand in opposition to the Constitution and the Bill of Rights in this case, then how can we trust them to respect our rights? Their oath of office requires them to defend the Constitution. They should not be asking the Supreme Court to violate anyone’s freedom of speech.”

The thirteen Republican Senators are: Minority Leader Mitch McConnell (KY), Bob Bennett (UT), John Barasso (WY), Sam Brownback (KS), Richard Burr (NC), Susan Collins (ME), Mike Crapo (ID), Chuck Grassley (IA), Mike Johanns (NE), George LeMieux (FL), Jim Risch (ID), Pat Roberts (KS) and David Vitter (LA). Most of these Senators have a history of voting against individual liberty and the best interests of the people again and again. Republicans in Utah have already voted Bob Bennett out of office in the primary, rejecting his big-government. anti-liberty record. These other Republicans who also seem not to understand the Constitution should take this as a warning that they will be held accountable as they come up for reelection in the next four years.

I certainly hope that the Supreme Court will not be swayed by the arguments of these political hacks and will remember that when it protects Fred Phelps’ right to be offensive it also protects the right of every citizen to have and express their opinions, no matter how unpopular, without fear of interference or persecution.

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About Dave Nalle

Dave Nalle is Executive Director of the Texas Liberty Foundation, Chairman of the Center for Foreign and Defense Policy, South Central Regional Director for the Republican Liberty Caucus and an advisory board member at the Coalition to Reduce Spending. He was Texas State Director for the Gary Johnson Presidential campaign, an adviser to the Ted Cruz senatorial campaign, Communications Director for the Travis County Republican Party and National Chairman of the Republican Liberty Caucus. He has also consulted on many political campaigns, specializing in messaging. Before focusing on political activism, he owned or was a partner in several businesses in the publishing industry and taught college-level history for 20 years.
  • Disgusted and Disturbed

    Freedom of Speech is already limited, as it rightly should be. It does not cover vulgar or obscene language, and you can get it trouble for shouting “bomb” at the airport or “fire” in a theater. Someone has to lose in this case, and I rather it be the ones who take joy in abusing the rights given to them than the ones suffering because of the abuse of the rights. Action, reaction, consequence. They’ve had their fun, now it’s time to clean up, put their toys away, and pay the piper. A cult like that has no place in this country.

    They are the ones digging their grave and carving the headstone, and it’s only a matter of time before the reaper comes to collect. Let the church become broken and scattered, and that family banned from ever setting foot in a court of law as lawyers ever again.

    Also, whoever thinks that soldiers are being forced or coerced into anything are wrong. They choose to join, and they know what can and will happen. If you can’t stand behind out troops, then stand in front of them.

    Thank you, and have a good life.

  • Nice image, Jessica. Someone sitting up in his casket and crying, “You’re right! I’m an idiot! I take it back!” And then running out with his irate mourners to attack the seven women and children from the Westboro Baptist Church, who are lawfully assembled in public protest 1,000 feet away from his funeral in a space cordoned off for that purpose by police.

    Sounds like a low-budget horror film: Revenge of the Dead Idiots. Coming soon to a trailer park near you.

  • “I really hope someone comes to your funeral and says you deserved to die… maybe then you will see your own idiocy and take it back”

    Speaking of idiocy…

  • Jessica

    I really hope someone comes to your funeral and says you deserved to die… maybe then you will see your own idiocy and take it back

  • Excellent article in Sunday morning’s NY Times about the Phelps and their ever-growing presence in Topeka. Fred Phelps has 13 children, 56 grandchildren, and 9 great-grandchildren. 11 of his 13 children are lawyers, and many of the grandchildren are fully indoctrinated “soldiers” in this “battle.”

    In Topeka, the Price of Free Speech

    Even though Dave is probably right on the free speech legality of this case, it still turns one’s stomach. It’s easy to understand the impulse to do something to these people, in the way the Southern Poverty Law Center successfully sued and bankrupted the White Aryan Resistance. One hopes that was Snyder’s intent, rather than financial gain.

  • What of the freedom of speech for the families who are attacked by this vile, disgusting Phelps troll?

    Scott, they are welcome to counter-protest as many groups are doing.

    Who is there to defend that freedom?

    Me. I defend it just as much as I defend Phelps’ free speech.

    Those families also deserve their own freedom of speech — represented by being able to express themselves in a funeral service without interruption from this horrible Phelps person.

    No one infringed their free speech at all. As Alan pointed out earlier, the protesters were so far away they could neither be seen nor heard at the service.


  • kurt Brigliadora

    The whole process needs to be changed…Who ever votes ; needs to disclose all their affiliates in public and business dealings.And some one needs to keep score and watch what their real agenda’s are. its not enough anymore to simply vote them in on some B S promises that they dont keep.”Performance based”politics is what america needs..No matter what the issue!

  • zingzing

    w/o q, but still qft, i guess.

  • zingzing

    yep qft

  • Cannonshop

    Freedom of speech includes the right to see/hear things that offend you.

  • Those families also deserve their own freedom of speech–represented by being able to express themselves in a funeral service without interruption from this horrible Phelps person.

    Scott Nance (#39), I have found several sources online that may lessen your confusion. From that bastion of liberal enlightenment FoxNews comes this: “In the days leading up to the funeral, Westboro parishioners, including Fred Phelps, notified local authorities of their intention to picket the service. They were kept 1,000 feet away from the church and because of the use of an alternative entrance for churchgoers there was no disruption to the memorial. … There were no arrests.” (Emphasis added.)

    I also found two sources–here and here saying that Albert Snyder, father of the fallen warrior, wasn’t even aware of the protest at the funeral until he watched it later on television.

    So, as El Bicho suggests in comment #42, the freedom of speech of those attending the funeral was in no way impacted.

  • El Bicho

    “Clearly, Arch Conservative would rather make a fool of himself than to educate himself.”

    Quoted for truth

    “What of the freedom of speech for the families who are attacked by this vile, disgusting Phelps troll?”

    How is their freedom of speech is being impacted?

  • I guess I ought to have added that in this analogy, the room is America and Pastor Phelps preaches that it’s on fire. Because “the modern militant homosexual movement poses a clear and present danger to the survival of America,” God has struck down U.S. troops in Iraq and Afghanistan “in righteous judgment against an evil nation.” For anyone who believes this, to not cry Fire!–as by demonstrating at military funerals–would be tantamount to renouncing one’s faith.

  • Unless, of course, there actually is a fire in the room. In that case, it becomes not merely your right, but your duty to sound the alarm. That’s what this case is about.

  • Hi Dave,

    What of the freedom of speech for the families who are attacked by this vile, disgusting Phelps troll?

    Who is there to defend that freedom?

    Those families also deserve their own freedom of speech — represented by being able to express themselves in a funeral service without interruption from this horrible Phelps person.

    As a journalist, I consider the First Amendment sacred. I also know that my right does not include being able to shout, “Fire,” in a crowded room.

  • Dillon Mawler (#37), in the instance of Arch Conservative (#36), it’s called willful ignorance. He is not only fixated on cemeteries, which have nothing to do with this case (see my comment #29), he insists on continually misspelling the word as “cemetary” (despite my pointing out his error). Clearly, Arch Conservative would rather make a fool of himself than to educate himself. In doing so, he’s merely living up (or is it down?) to his moniker.

  • Dillon Mawler

    AC, no one was on a sidewalk outside a cemetery. You are not familiar with the facts of the case, but do not let that stop you.

    It seems the “Google” button on your computer is broken, but luckily your “post comment” button still works.

  • Arch Conservative


    The phelps klan and other such protestors do have a right to protest in public.

    I was pointing out that the minute they infringe upon private property rights they’ve broken the law.

    If they are yelling, screaming and acting like kooks on the sidewalk outside a cemetary, perhaps, since the cemetary is private property, some type of sound and sight barrier could be erected directly in front of them within the bounds of the cemetary so that those attending the funerals may mourn in peace.

    Anything that can be done on private property to mitigate the effects of a bunch of nutbags outside that have the legal right to be nutbags outside should be done.

    That may not have been the point you wanted to get at Alan but it was the point I was trying to make.

  • Eric

    There is already a significant restriction to freedom of speech. Not long ago, a pastor wanted to burn a few Qurans, the outcry from this country’s government made it clear that this type of behavior would not be tolerated. He had every right under the 1st Amendment to burn those books but the government chose to focus on him and not on Westboro Baptist Church. Quite the double standard if you ask me.

  • Dave, you’re right, it’s the principles that matter. However, as Dillon points out, most of the commenters here seem blissfully ignorant of the case before the court. They therefore sound off, utterly uninformed (e.g., asking whether most cemeteries are public or private property), and thoroughly confuse the principles. Sometimes it’s better for an author to outline the underlying facts, even if those do seem “irrelevant” to the overarching principles.

  • Good points, Dillon. In fact, the weakness of Snyder’s case is particularly unfortunate, because it gives the Supreme Court the possible out of rejecting the case on a technicality rather than ruling on the central free speech issue.

    I don’t mention the specific circumstances in the article, because IMO they are irrelevant. It’s the principles which matter.


  • Dillon Mawler

    These Senators are wrong, and it’s particularly galling to see Al Franken, for one, in on the brief. As a political satirist by trade, you would think he would be doubly sensitive to freedom of speech, in particular political speech like the detestable excrement spouted by the prehensile Phelps.

    But this case is worrisome because of the facts, which no commenters besides Alan seem familiar with. The particulars of the case make it all far from cut and dried — for one thing, the father never even saw the protest or knew of the signs until later that day when he saw media coverage.

    As Alan points out, there were local ords in place, and the Westboro morons followed them.

    The father’s status as a public figure or a private figure is also at issue, which means different standards of judging the defendants’ actions. Also contentious is the civil, rather than criminal, nature of the father’s lawsuit.

    Worse, the father also sued for derogatory comments the Westboro scumbags placed ON THE INTERNET much later.

    A real question is why the activist Roberts court has agreed to hear this case at all. Were they looking for a sympathetic plaintiff and a detestable defendant as an excuse to limit anti-military speech? Or further curtail speech rights in general?

  • Is no one going to defend a person who died fighting for his country?

    Chris (#22), tens of millions of Americans reflexively honor our fallen warriors. It’s called Memorial Day. Happens like clockwork every May. Plus, millions of us pay tribute to fallen warriors, collectively and/or individually, on other occasions throughout the year.

    If you mean, is no one on this thread going to defend Marine Lance Corporal Matthew Snyder, I have an idea: why don’t you do that, Chris, instead of merely posing the question? Explain to us why LCpl Snyder, who died at age 20 from a non combat-related vehicle accident in Al Anbar province, Iraq, represents a noble sacrifice and not a young life tragically squandered in a needless war.

  • Baronius

    I recommend that people stop telling others it is heroic to donate their lives to invading and killing people around the world.

    Nobody says that. They say that you can earn money for college while protecting America. At most, some people say that it’s heroic to protect America.

  • Are most cemetaries [sic] public or private property?

    Arch Conservative (#21), most are private property. But what do cemeteries have to do with this case?

    In March 2006, seven members of the Westboro Baptist Church from Topeka, Kansas, protested outside a Roman Catholic Church in Maryland. Inside the church, Albert Snyder was holding a funeral service for his late son, Matthew.

    The protestors were lawfully assembled in a public place, specifically an area 1,000 feet away from the church cordoned off for the purpose by police.

  • I recommend that people stop telling others it is heroic to donate their lives to invading and killing people around the world.

    You’ll notice that the people doing so are almost invariably not veterans, who know better.

    Worth repeating, often.

  • Because they know the law and are very careful to ensure they remain just on the right side of it.

  • Baronius

    I don’t understand why the Phelps people can’t be arrested for disturbing the peace.

  • Support Our Troops…tell them the truth.

  • 22 – Chris

    Consider that people who repeat the slogan…’fighting and dying for this country’ are complicit in turning young people into soldiers putting them at risk in the first place. I recommend that people stop telling others it is heroic to donate their lives to invading and killing people around the world.

    – what message does this send out to other troops ?

    Think before you jump on the ‘fighting for this country’ bandwagon?

    How does killing Iraqis, for example, do anything for you?

  • Luke

    I don’t get why people don’t just burn the church down and beat the crap out of them at any funeral they dare to turn up at, they should have been taken care of long ago, before the government ever had to get involved.

  • Chris

    Is no one going to defend a person who died fighting for his country – what message does this send out to other troops ?

  • Arch Conservative

    Are most cemetaries public or private property?

    It’s my understanding of the first amendment that freedom of speech does not give one the right to enter private property to express their first amendment right.

  • Chris

    Nicole I totally agree with everything you wrote – yes decency is important. Freedom of speach is meant to protect the weak from the agressive – yet it seems to be doing the opposite, is that irony ?
    I also hate politics – everyone I know in politics refuses to give an opinion on this, and for such normally opinionated people it seems a little yelow.

  • Nicole, if that’s all you got you’re not reading very well. This article specifically singles out 13 Republicans for criticism and mentions no Democrats by name, so how can you interpret it as “demos are wrong, repubs are right”? Makes no sense at all.

  • Nicole**

    Ok I think that there needs to be someone who only knows about both sides of the politics and not one who stands on a side to be able to explain both equally. This is why I refuse to do anything in politics. Each party blames the other. This isn’t a political debate. It’s about human morals and deceny. What would you do if a protestor walked in on your daughter’s or son’s wedding ceremony and said different religions should not marry or race or sex. Same with funerals. It’s a time to moarn for the loss of life – not a time to cause even more depression and anger.
    From an outsider point of view…who sees nothing to come of good in politics (to me I feel they tear people apart even when we should be standing as a nation of one), is that this is a hate crime. History cannot be changed, but the future can be helped.
    We need someone who is in the middle to write an article, because all that stood out to me (you are a good writer), is just demos are wrong, repubs are right. That’s all I got from this. That is not the subject at hand, yet that is what stood out.

  • Dave,

    I find no shortage of people willing to modify rules to suit their personal proclivities. That is why representative gov’t is a sham. Democrats, Republicans, they are all alike. They all have an agenda and they each want their own way. The hell with honorableness.

  • I’m not claiming it doesn’t happen on both sides, Dr. D., but the fact that the Democrats have a particularly substantial history of pushing for limitations on free speech isn’t really something you can get away from.


  • Dave, I’m not interested in scoring points. I’m just disputing your thesis that infringement of free speech is a Democrat (sorry, Handy) thing. It’s not. It’s a What-You’re-Doing-Makes-Me-Uncomfortable-So-I’d-Like-To-Shut-You-Up thing.

  • I don’t really have a problem with donations being credited as far as the source, so long as it’s applied fairly. The currently pending legislation which exempts certain groups like unions is unacceptable.

    As for the Chinese, I’d prefer they were generally not involved in US politics at all. The scandalous involvement they had in the Clinton administration opened a door which ought to be closed.


  • Foreign contributions are just one part of the larger, shocking story:

    This election is about to be bought by gigantic anonymous donations.

    All political donations should have a name attached to them. Anonymity is the enemy of democracy.

  • Political figures participate in amicus briefs all the time. “Corrupt” is not an accurate description.

    When a case reaches the Supremes, it generally means both sides have a case strong enough to be heard. Dave and Alan are pre-deciding this with just as much one-sidedness as the opportunistic senators.

  • Dave,

    What do you think about the hoopla surrounding the U.S. Chamber of Commerce and its solicitation of China and foreign gov’t donations to run ads to effect US elections by appealing to their economic capitalist interests?

  • You’re right, Dave. The senators ratified the justices’ appointments. But aren’t those lifetime jobs? I mean, can’t the Supremes with impunity tell senators to go fuck themselves?

    Whatever, I agree that theirs is a boneheaded position for which they must be held accountable. It’s just scary they’d try to openly corrupt the court’s decision-making process this way.

  • The case is not directly about free speech, but about the right to sue the Phelpsians for invading privacy and causing emotional distress.

  • Dr. D. Back in 2006 I wrote two articles criticizing the GOP flag burning opponents very much in the same terms as I’m criticizing these panderers, so you’re not scoring any actual points here.


  • Alan, I hope you’re right, but the action of these Senators implies that they at least think that their august opinion could have some influence on the court members. They are, after all, the guys who ratified their appointments.

    I have some confidence that they won’t get very far with this effort, based on the clear dissatisfaction of the Chief Justice with political hackery in DC. But regardless of whether they have any actual influence, they ought to be held accountable for coming out publicly with such a boneheaded position.


  • I certainly hope that the Supreme Court will not be swayed by the arguments of these political hacks …

    Dave, is there a chance the court might be prejudiced by senators? I don’t follow politics, nor am I student of government. Yet I was somehow under the impression that the Supreme Court is immune from such influence. You know, separate branch and all.

    Still I realize that in practice, government doesn’t always work the way our Constitution may have intended. Are there instances in recent history where senators have bent the court to their will? It seems pretty shocking.

  • Fighting free speech with free speech is still the best idea: I’m not sure if any other mourning families have borrowed the inspired idea used against the Phelpsians at Matthew Shepard’s funeral: a group of people wearing angels’ wings blocked the protesters from the sightlines of mourners and TV cameras.

  • And please be sure to continue using “Democrat” as an adjective, purely to annoy. It goes a long way toward proving how nonpartisan and principled you are.

  • Also, of those Republicans on your list who were in the Senate back in ’06, only two – McConnell and Bennett, voted ‘Nay’ on the anti-flag-burning resolution. The other seven supported it.

    Yep, quite a principled bunch.

  • Except that this is just one in a series of Democrat efforts to put limits on free speech, so the breakdown is worth noting, though not the focus of the article.


  • “Most of the Senators who signed the brief are Democrats…”

    And most of the senators who backed the flag-burning amendment last time it came to a vote on the floor were Republicans.

    Desiring to ban speech one doesn’t like isn’t a partisan trait. It just depends which particular form of speech is getting one’s ideological goat enough to make one forget the fundamental principles of one’s nation.