Good friend Tamara, of the razor wit and deadly keyboard-fu, feels that Fred Phelps has the right to say nasty things about dead service members.
I don't agree- unless they're true. I agree so often with Tamara, she's like my larger, more erudite, separated-at-birth female identical twin, but I can't agree here. To my knowledge, slanderous statements have never been protected by 1st Amendment rights.
Libel is just written slander. Here is Retired Justice William J. Brennan, Jr's description in the landmark 1964 New York Times Co. v. Sullivan libel case: "knowledge that the [published information] was false" or that it was published "with reckless disregard of whether it was false or not." It's pretty obvious that "pastor" Phelps did indeed say malicious things "with reckless disregard" as to their truth. As such, his comments are in no way protected by free speech.
Readers may also find Don Brownlee's 1984 presentation of the "fighting words doctrine" helpful.