Mizzou Law Professor Comes to Defense of Fred Phelps, Westboro Baptist Church

University of Missouri law professor Christina Wells recently fired off a letter to the Supreme Court defending the free speech of the controversial Fred Phelps.

As you'll recall, Phelps is the pastor of the Westboro Baptist Church, a Topeka-based flock that has taken to picketing the funerals of military servicemen who the church believes were killed because God is angry at Americans for condoning homosexuality. (Phelps' church also protests other events, too, like last weekend's Cardinals' game and Lady Gaga concert in St. Louis.)

In short, the reverend is not the most likable person. But, as Wells frets, should the Supreme Court rule against him, everyone's right to free speech could suffer. 

"It would undo about eight decades of its own jurisprudence," Wells tells Daily RFT. "Think of all the people on TV who make a living being bombastic and hyperbolic. This has a chance to really kill speech for a lot of people, including protesters for animal rights, abortion. The list goes on."

In the case currently in front of the Supreme Court (Snyder v. Phelps) the father of a dead serviceman in Maryland sued Phelps on grounds that the protesters at his son's funeral invaded his privacy and inflicted emotional distress -- despite the church following the ground rules established by local police and staying the required distance away from the funeral.

In Maryland court, a jury initially sided with Snyder awarding him $10 million in damages. The case was then overturned in federal court. Wells worries that -- like in Maryland -- Supreme Court justices could be swayed by a very sympathetic father, Albert Snyder. Still, in her amicus brief to the court, the law professor argues that Snyder's complaints don't pass Constitutional muster.

"Phelps's admittedly offensive speech falls squarely within the bounds of First Amendment protected speech," says Wells. "The Supreme Court protects offensive speech because it contributes to discussion on issues of public interest and because efforts to censor such speech are usually motivated by dislike of the speaker's message."

Furthermore, the Constitution does not allow punishment of speech solely because of its emotional impact on the listener.

"Punishment of speech requires some kind of external harm, such as noisy and disruptive behavior, threats, lies or harassment, before finding speech unprotected," says Wells.

Thanks to Phelps most states have laws regarding funerals and protests. In Missouri, state law prohibits protesters from assembling near a funeral within one hour prior or one hour after the event. The law is being challenged by one of Phelps' daughters, Shirley Phelps-Roper, who in 2006 sued Missouri's then attorney general, Jay Nixon, over the law. In 2008 the federal appeals court in St. Louis agreed with Phelps-Roper that the Missouri law was too broad and should be blocked.

Wells believes that a safe distance would be laws banning protests from assembling within 100 feet of funerals.

But how about a law banning Phelps from protesting Lady Gaga?

"I wouldn't want to take Lady Gaga on," says Wells. "But that would be a good showdown (Lady Gaga v. Phelps). You've got strong wills on both sides."