BreakPoint: What Can You Say?

Snyder v. Phelps

What will happen to free speech should so-called gay marriage become the law of the land? The Supreme Court may have given us a clue.

Last week the Supreme Court struck a blow for free speech, although it may have come at the expense of common decency. In the case Snyder v. Phelps, Snyder, the father of a U.S. Marine killed in Iraq, sued Phelps, the pastor of the infamous Westboro Baptist Church, for intentionally inflicting emotional distress on the Snyder family. You know that Westboro Baptist is the Kansas church that protests at military funerals, bearing despicable signs that say things like “Thank God for Dead Soldiers” and “God Hates Fags.”

A federal district court agreed with Snyder. The Supreme Court did not, ruling 8-1 that speech even as offensive and vile as Westboro Baptist’s is protected by the First Amendment. Now personally, I was sympathetic with Justice Alito, the lone dissent. He wrote that the First Amendment doesn’t protect someone from being sued “when grave injury [is] intentionally inflicted by means of an attack like the one at issue” in Snyder vs. Phelps.

As distasteful as the Court’s decision was, what does it mean not just for free speech but for freedom of religion as well? For instance, if the Supreme Court permits speech that intentionally inflicts injury — and let’s be clear: saying “God hates fags” certainly fits that bill — then how can a corporation like Apple ban the Manhattan Declaration from its iTunes app store?

Apple claimed that the Manhattan Declaration can cause “harm” to gays and lesbians. Yet the Manhattan Declaration clearly states that while homosexual conduct is sinful, all human beings — gays and lesbians included — possess “profound, inherent, and equal dignity.” The Declaration also explicitly calls on Christians to refrain from “disdainful condemnation” of gays and lesbians. Nonetheless, Apple remains obdurate in its silencing of free speech and refuses to reinstate the Manhattan Declaration app.

While the Supreme Court’s decision doesn’t tell us how the Court may view so-called gay marriage or, for that matter, the one from Judge Vaughn Walker in California overturning Proposition 8, in which he makes the ridiculous claim that Christian beliefs “harm” gays and lesbians, it does seem to answer one concern I’ve had.

You have heard me wonder out loud what will happen should so-called gay marriage become the law of the land. Could we be prosecuted for hate speech for saying that marriage should be reserved to one man and one woman or that homosexual behavior is a sin? Prosecuted, yes, perhaps. Ultimately, however, it seems that the Supreme Court will protect our free-speech rights.

But it’s not unrealistic to think that the same Court that upholds some fanatic’s right to say “God hates fags” could still find a constitutional right for gays to marry. That’s a different but equally crucial issue, which I cover on this week’s Two-Minute Warning. This is especially urgent in light of the Administration’s outrageous decision not to defend the Defense of Marriage Act in the courts.

Please, go to and watch this week’s Two-Minute Warning. I believe that the institution of marriage as we know it is teetering on the verge of destruction. But the battle is not over. And at least for now it appears we’re safe to speak the truth: that marriage should be reserved to one man and one woman.

Further Reading and Information

Inside the Supreme Court’s Free Speech Shutdown
Sean Gregory | TIME Magazine | March 06, 2011

Snyder v. Phelps (more)
Michael Walsh | National Review Online | March 04, 2011


Comment Policy: Commenters are welcome to argue all points of view, but they are asked to do it civilly and respectfully. Comments that call names, insult other people or groups, use profanity or obscenity, repeat the same points over and over, or make personal remarks about other commenters will be deleted. After multiple infractions, commenters may be banned.