During the Constitutional Congress there was significant opposition to the proposed new system of government because the Constitution, as it then consisted, did not contain sufficient protections of individual liberties.

Originally the Constitution contained few protections for individual rights.

The Constitutional drafters created the first Ten Constitutional Amendments, known as the Bill of Rights, to protect certain liberties and remedy this concern. The Bill of Rights was submitted to the states for ratification on September 25, 1789 and adopted on December 15, 1791. The first of these amendments reads:


“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The Bill of Rights was later added to the Constitution to protect civil liberties including Freedom of Speech.

This short phrase contains some of America’s most treasured rights, including freedom of religion, freedom of assembly, freedom of the press and the freedom of speech. Rights that we all enjoy, cherish and so many have defended.

The United States Supreme Court recently heard oral arguments in the Snyder v. Phelps case. This case has generated a lot of media coverage and rightly so as the issues presented strike to the very marrow of the right to free speech.

Albert Snyder’s son died in Iraq in 2006. The twenty-year-old US Marine was killed in a Humvee accident. Members of a family-dominated church in Topeka, Kan., lead by the Reverend Fred Phelps protested at the funeral to express their view that U.S. deaths in Afghanistan and Iraq are God’s punishment for American immorality and tolerance of homosexuality and abortion.

The signs held by protesters outside Lance Corporal Matthew Snyder’s funeral included phases like “Thank God for Dead Soldiers”, “You’re Going to Hell” and “God Hates the USA.” The Phelps church also posted a poem on its website ridiculing the way that the Albert Snyder and his ex-wife raised their Marine son.

Snyder won an $11 million verdict against the church for intentional infliction of emotional distress, among other claims. A trial judge later reduced the award to $5 million. On appeal, the 4th Circuit Court of Appeal in Richmond, Va., threw out the verdict altogether by ruling that any award barred by the church’s First Amendment rights.

This is a very difficult decision that our Supreme Court must address, are the Phelps’ protests protected free speech under the 1st Amendment or unprotected harassment? The Court seemed to be wrestling with this very issue during recent oral arguments.

Justice Samuel Alito asked Margie Phelps, arguing the case for her family’s Westboro Baptist Church, if the Constitution should shield someone who delivers a mean-spirited account of a soldier’s death to the serviceman’s grandmother while she’s leaving her grandson’s grave. “She’s waiting to take a bus back home,” Alito imagined and someone approaches to talk about the roadside bomb that killed the soldier. “`Let me describe it for you, and I am so happy that this happened. I only wish I were there. I only wish that I could have taken pictures of it.’ And on and on. Now, is that protected by the First Amendment?” Alito further questioned Phelps if a scenario existed where individuals like the Snyder family could file a lawsuit, such as an African-American who was exposed to a tirade of racially offensive speech.

Recently appointed Justice Elena Kagan further asked if a wounded soldier could sue someone who demonstrates “outside the person’s home, the person’s workplace, outside the person’s church … saying these kinds of things: `You are a war criminal,’ whatever these signs say or worse?”

One possibility suggested by Justice Scalia is that the Court could order a new trial in the case.

The Snyders attorney argued that the case was not one of protected free speech because of the “personal, targeted nature of the attacks on the Snyder family.”  Albert Snyder said “I had one chance to bury my son and it was taken from me.”   Justice Ruth Bader Ginsburg seemed to agree with this position when she questioned if the First Amendment should protect the church members. “This is a case about exploiting a private family’s grief.”

The most ironic and tragic fact in this case (one that the Phelps seem oblivious to) is that the very right to free speech is a right secured by the sacrifices of generations of American Soldiers who gave their lives willingly to ensure we all enjoy the right of freedom of speech, including Lance Corporal Matthew Snyder.

While the Phelpses seek to hide their shameful acts as protected speech, forty-eight states, 42 U.S. Senators and various veterans groups have asked the court to shield the funerals of our servicemen and women from the “psychological terrorism” the Phelpses inflict upon the very people who gave their lives to protect the right to free speech.

The Supreme Court will issue a ruling sometime in late Spring 2011.