Is it possible to outrage gays, servicemembers in the armed forces, veterans, patriotic citizens, grieving parents, and those who value both the free worship and free speech provisions of the First Amendmentall at once, and keeping your clothes on? Ask Fred Phelps, pastor of Westboro Baptist Church of Topeka, Kansas, on the receiving end of a federal court jury award of almost $11 million in compensatory and punitive damages for staging a taunting, bilious demonstration near graveside funeral services for a Baltimore Marine killed in Iraq. Phelps, who seems to be trying hard to give hydrophobic hate speech a bad name, is easily remembered as perhaps unique (and at least certainly conspicuous) among Christians in espousing a doctrine centered on whom "God hates." Phelps says he will persist in his jeremiad against everyone meriting divine wrath by failing to condemn gays, and the father of the Baltimore serviceman who won the case against him has pledged to continue combating him. Meanwhile the judgment, apparently based on claims of invasion of privacy plus the tort of extreme and outrageous conduct intended and likely to provoke mental suffering, will I suspect be overturned by the U.S. Court of Appeals. The demonstrators reportedly were on a public street and had a permit, and the viciousness of a public statement of belief alone, or even its calculated use to injure feelings, has for First Amendment reasons seldom if ever been recognized as an offense for which damages may be awarded. As Professor Eugene Volokh of the UCLA School of Law told the Baltimore Sun, "I think when speech is a matter of public concern it still has to be protected, even when by social standards it is extraordinarily rude and outrageous." Volokh outlined the legal issues surrounding the prohibition or regulation of funeral picketing last year in National Review.
