The Supreme Court just overturned the verdict against Fred Phelps and the Westboro Baptist Church, and upheld their right (in limited circumstances and with reasonable restrictions) to picket funerals.
It therefore seems like a good time to reprint this piece, written in 2007 when the original verdict against Phelps came down… explaining why, with great personal revulsion and reluctance, I agree with the Supreme Court.
But it looks like I do.
Dammit, dammit, dammit.
Quick precis, for those who don’t know the story: You know Fred Phelps? The evil, hateful, repulsive nutjob who pickets the funerals of prominent gay people, with signs saying things like “God Hates Fags”? Who lately has been picketing the funerals of U.S. soldiers killed in the Iraq war, on the grounds that their deaths are punishment for the nation’s tolerance of homosexuality? (I told you — evil, hateful, repulsive nutjob.)
He — or more accurately, his church — was recently ordered to pay nearly $11 million in damages, in a civil suit filed by the father of a soldier whose funeral Phelps picketed. The suit was won on the grounds that the picket constituted “invasion of privacy and intent to inflict emotional distress.”
And I’m finding myself very disturbed by this.
Don’t get me wrong. I am feeling a certain amount of visceral Schadenfreude about the decision. I won’t deny that. As Molly Ivins once said, “Mama may have raised a mean child, but she didn’t raise no hypocrites.” But as much as I personally enjoy seeing the bastard suffer, I am far more disturbed by the extremely chilling effect that this decision could have for freedom of political speech and expression.
For all of us.
And that’s a whole lot more important to me than my personal Schadenfreude.
According to the reports I’ve read, this was not an Operation Rescue type of deal. There was no disruption of the service, no getting three inches from the mourners’ faces to scream at them. The plaintiff himself said at the trial that he didn’t even see the protesters or their signs at the funeral: in fact, he didn’t know they’d been there until he saw news reports about them later. They kept their hateful, repugnant protest a reasonable distance away. So the invasion of privacy thing seems to be pretty much bullshit. It’s the “intent to inflict emotional distress” that’s the real core here.
And when it comes to political and religious speech, I think the infliction of emotional distress is — and should be — a guaranteed, First Amendment-protected right.
Take a look at my Atheists and Anger piece. And take a look at the deluge of comments. 749 comments as of this writing, and still climbing. [Update: 1653 comments as of 3/2/11.] Almost half from people who were very emotionally distressed indeed by the piece. I knew when I wrote it that the piece would inflict emotional distress on a lot of people (although I didn’t quite expect the deluge)… and I wrote it anyway.
I want to be able to write like that again without being sued.
Not a perfect example, I’ll admit. People come to my blog voluntarily (although some of them seem to have forgotten that fact), so it could be argued that I didn’t inflict anything.
So let’s use a different example. I want the right to picket church services with a sign saying, “How’s Your Invisible Friend Today?” To picket the opening of a new steak restaurant with signs that vividly describe slaughterhouse conditions. To picket George W. Bush’s eventual funeral singing, “Ding, Dong, The Witch Is Dead.” I probably wouldn’t do any of those things, since I’d consider them in bad taste; but I think I should have the right to do them.
And if this ruling stands, I might not.
Free speech is a human right, one of the central foundations that this country was built on. And that’s not just true when the speech in question goes the way we want it. The First Amendment does not exist to protect popular speech. It exists to protect unpopular speech. That’s the whole point. We don’t need Constitutional protection for our right to publish apple pie recipes or pictures of cute puppies. We need Constitutional protection for our right to say things that make people flee in horror… from “God Hates Fags” to “Gay Is Beautiful,” from “Stop the War” to “Bomb Them Into The Stone Age,” from “God Wants Our Soldiers To Die” to “God Does Not Exist.”
And the more I think about this case, the more I think it’s bad strategically as well as ethically. And for much the same reason. I think this case can and will be used by the Right to argue that queers are demanding “special rights.” “Sure, they want First Amendment protections for themselves,” they’ll say. “But they sure are quick to get off their First Amendment high horse when it’s someone they don’t like!”
And they’ll be right to do so.
I mean, I think that. I’m saying that right now. And I’m queer.
If you want to make an argument that this ruling doesn’t violate the First Amendment, then I’d be very open to hearing it. I’m the first to admit that I’m not a legal or Constitutional scholar, and it’s possible that a reasonable case could be made that the Phelps protests are not protected speech under the First Amendment.
But I’ve seen too many arguments on this topic that say, “Free speech isn’t an absolute right, there are limits, look at libel laws, fraud laws, etc.”… without making any argument for why this particular case should be one of those limitations. Other than just, “The speech is hateful.” So far, nothing I have read on this particular case suggests any interpretation other than, “the plaintiffs are getting $11 million because they were upset by the content of Phelps’s speech.”
Deeply upset, and rightfully so. I get that. But again, that is exactly the sort of situation that the First Amendment is meant to protect.
And I’ve seen too many arguments on this case that essentially say, “First Amendment, Shmirst Amendment — I wanna see this bastard go down.” I would respectfully like to suggest that that is one lousy argument. The First Amendment is not to be casually tossed aside when it happens to protect a repulsive creep who we want to see fry.
A lot of progressives, people who are normally all over the First Amendment/free speech thing, are unusually willing, even eager, to drop their love of the Amendment in this particular case. And I understand the impulse. This particular case — this particular person, this particular group — makes people profoundly angry and upset. It makes me profoundly angry and upset. There’s a part of me that would love for some Constitutional scholar to come up with some legal loophole in the First Amendment, just so I can feel good about watching this bastard go down in flames.
But once again — that’s the whole point. The First Amendment to protect speech that makes people profoundly angry and upset.
See, this case is not just about a delicate legal nitpick. It’s not just about practical political strategy. It’s not even just about the pragmatic, enlightened self-interest desire to protect other people’s First Amendment rights so our own will be protected. This case is about the basic ethical principle of free speech. And it’s about whether we care enough about that principle to defend it, even when it hurts. It’s about whether people have the legal right to say what they want, no matter how vile or upsetting we find it… simply because they do.
So do we really have to defend this guy? Do we really have to stand up and say, “Yes, Fred Phelps has the right to go to funerals and carry signs saying ‘God hates fags’ and “Thank God for dead soldiers’?”
Yes. We do.
We have to stand up and defend anyone who’s trying to communicate an unpopular message that profoundly upsets people. That includes a lot of horrible, evil people with repulsive ideas. But that’s the whole point of the First Amendment. It doesn’t exist to protect popular speech. It doesn’t exist to protect Cute Overload. It exists to protect speech that makes us want to vomit.