Be warned: the words in this piece are not nice. They are mean, hurtful, hateful words. They are not the words of this author. They are not words that this author would encourage anyone to use. But they are words that were chosen for those very purposes. They are the words that eight out of nine U.S. Supreme Court (SCOTUS) justices (including four current justices) chose to include in a SCOTUS opinion. They are words that eight out of nine SCOTUS justices selected precisely to protect. They are words that eight out of nine SCOTUS justices selected for the purpose of vastly elevating their status and use.1
If you want to know why law students say some of the things they do when protesting, consider an example of what they are taught. Law students are taught with opinions written by SCOTUS justices, especially regarding the First Amendment.
SCOTUS justices are well aware that their decisions are used to teach. They select cases precisely to use them to teach. Maybe around 10,000 petitions are filed every year asking SCOTUS to reverse other courts’ rulings, but only a tiny percentage are granted. SCOTUS justices carefully choose to grant or decline petitions precisely for the purpose of teaching Americans (especially American lawyers) what to say and how to say it. A petition is granted pretty much only if at least four justices want it to be granted. Granting a petition typically is an exceedingly exceptional act of essentially magisterial magnanimity that SCOTUS justices consider very carefully. That is certainly true of First Amendment cases. SCOTUS justices grant petitions precisely to protect speech they want to encourage. This is an example of speech that SCOTUS justices felt they just must protect.
In 2011, SCOTUS issued a decision with multiple opinions in Snyder v. Phelps, 562 U.S. 443 (2011). The majority opinion was written by Chief Justice Roberts. He was joined by Justices Scalia, Kennedy, Thomas, Ginsburg, Breyer, Sotomayor and Kagan. Justice Breyer also filed a concurring opinion. Justice Alito, alone, dissented.
The majority somewhat justified their conduct by emphasizing that, in “First Amendment cases, the court is obligated to make an independent examination of the whole record in order to make sure that the [lower court’s] judgment does not constitute a forbidden intrusion on the field of free expression.”
In Snyder, SCOTUS justices emphasized the freedom of speech in America. More particularly, they emphasized the freedom to even use a particular backdrop and even to use particularly hateful messages about Americans who had been killed in the service of this nation. Picketers targeted funerals (and the friends and family) of servicemembers who had been killed in combat. SCOTUS reported that, according to one source, “nearly 600 funerals” had been “picketed.” So not only were hundreds of funerals and families picketed, but SCOTUS justices somewhat immortalized and significantly elevated what picketers said and did by protecting it by, first, granting the petition, and, second, writing a strong, detailed decision.
The signs that SCOTUS justices went out of their way to protect included, “Thank God for Dead Soldiers,” “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don't Pray for the USA,” “Thank God for IEDs” (improvised bombs used to kill servicemembers), “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “God Hates You,” “Fag Troops,” “Semper Fi Fags,” “God Hates Fags,” “Maryland Taliban,” “Fags Doom Nations,” “Not Blessed Just Cursed,” “You're Going to Hell.”
Here’s what the majority of SCOTUS justices said to protect the display of such signs at or near the funerals of hundreds of servicemembers.2 We know those “views” are “particularly hurtful to many, especially to” families of the fallen. But “any distress” was caused by “the content and viewpoint of the message conveyed.” And “the point of all speech protection” is “to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” “Such speech cannot be restricted simply because it is upsetting or arouses contempt.” No “government” official may “prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” “[I]n public debate” we all “must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.”
The “speech” on the signs, above, “is fairly characterized as constituting speech on a matter of public concern,” and not even “the funeral setting” can “alter that conclusion.” Such “speech” is “on matters of public concern,” so it “is at the heart of the First Amendment’s protection.” In fact, such “speech” is “the essence of self-government,” so such “speech” necessarily “occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”
The majority clarified: “Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community” or “when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” “The arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.”
The American servicemembers whose funerals were being picketed had been killed while fulfilling their oaths to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” That same language is included in the oath of federal judges. But I’m virtually certain that SCOTUS justices would not even have granted the petition, much less waxed so philosophical, if the signs, above, had pertained to judges.
The Many people, including this author and many of his friends and family, who had served or were serving this nation’s interests in war zones—including many U.S. or coalition servicemembers or quasi-military contractors and Iraqi and Afghan civilians who worked for the U.S. government—had to live with being confronted with signs that publicly proclaimed the words in this piece. At the same time as they were confronted with the hateful signs protected by SCOTUS, they bore their own signs, the physical or mental signs of some of what they sacrificed in this nation’s service. Some examples include the following. The number of Americans wounded in Iraq and Afghanistan, respectively, included 31,994 and 20,093 U.S. servicemembers.
Some such quotes have been cleaned up by this author, e.g.,, to remove internal quotation marks or brackets.