“Freedom for the Thought That We Hate”: Why Westboro Had to Win

Abstract

Justice Oliver Wendell Holmes’ belief that the Constitution calls for the principle of free thought—“not free thought for those who agree with us but freedom for the thought that we hate”—was severely tested when the father of a fallen Marine sued members of the Westboro Baptist Church who picketed near his son's funeral service. Consistent with its traditions and precedents, the Supreme Court of the United States ruled 8-1 that the First Amendment protected church members’ offensive speech from tort liability. In ruling as it did, the Court properly chose to consider only the case elements it was presented, refused to create a new category of unprotected speech, and in turn eroded the reach of intentional infliction of emotional distress in speech-related cases. “The Court is out of the business of creating new categories of unprotected speech. Get over it.”1 Kathleen Sullivan, attorney and former dean, Stanford University Law School, remarks at Communication Law in the Digital Age conference of the Practising Law Institute, New York (Nov. 10, 2011).