In July, 2010, NCAC joins The Thomas Jefferson Center for the Protection of Free Expression, The Marion B. Brechner First Amendment Project, and The Pennsylvania Center for The First Amendment in a friend of the court brief in the Supreme Court in support of the right to protest.
This is a highly charged, but unique, case involving the Rev. Fred Phelps, whose anti-gay demonstrations at military funerals have drawn public opposition. The father of a deceased soldier sued Rev. Phelps for damages for “intentional infliction of emotional harm.” The Fourth Circuit Court of Appeals held that the speech, although “distasteful and repugnant,” consisted of “rhetorical statements employing ‘loose, figurative or hyperbolic language’” and could not be mistaken as “asserting actual facts.” As such, the circuit court found that the speech was protected by the First Amendment.
Phelps obtained a permit to protest, and his protest took place out of sight and earshot of the funeral procession and the funeral. Even though Phelps’ message was highly distressing to the friends and family of the slain soldier, denying Phelps the right to protest peacefully because his message is offensive runs counter to core First Amendment principles. As Justice Kennedy observed, “the history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly.”