The Fred Phelps Supreme Court Decision and Why We Shouldn’t Look for Loopholes in the First Amendment


When it comes to free speech and the First Amendment, the content of the speech, and whether or not we find it hateful, vile and abhorrent, is irrelevant.

Godhatesfags Let’s start with something I hope we all agree on. What Fred Phelps and the Westboro Baptist Church do? It’s repulsive. Picketing people’s funerals? Specifically, picketing the funerals of gay-bashing victims and U.S. soldiers? Going to people’s funerals and essentially celebrating? Wielding big colorful signs saying, “God Hates Fags,” “Thank God for Dead Soldiers,” “Thank God for 9/11,” “God Hates You,” and so on? Saying that dead soldiers — gay, straight, whatever, doesn’t matter — are God’s punishment to America for tolerating homosexuality?

Repulsive. Horrifying. The dictionary definition of evil. I get that. No argument.

The question is: What should we do about it?

As you’ve probably heard, the Supreme Court just ruled that the Westboro Baptist Church does have the right, within some reasonable limits, to picket at funerals. Background, in case you’re not familiar with the case: The Westboro Baptist Church was sued by Albert Snyder, father of fallen Marine Lance Cpl. Matthew A. Snyder, for picketing at his son’s funeral with their vile and hateful message. The court ruled that, since the protests happened peacefully and in a public space at a non-disruptive distance from the funeral — and since, quote, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values and is entitled to special protection” — the original judgment against them could not stand.

Many progressives have expressed outrage at this ruling. And from an emotional point of view, that outrage is totally understandable. The Westboro Baptist Church is very, very good at hitting our most raw nerves. They hurt people for the sake of hurting them, and apparently take glee in doing so. They violate fundamental principles of human decency. They are loathsome. Outrage against them is entirely reasonable.

But here’s the problem.

Many of the progressive arguments against the Supreme Court ruling? They’re very contorted. They don’t look like clear thinking based on clear principles of Constitutional law. They look like rationalizations for why the Constitution doesn’t really have to apply in this case. They look like the reactions of people who are deeply upset about what the Westboro Baptist Church does — as indeed they should be — and are looking for legal loopholes to try to stop them.

And we should not be looking for loopholes in the First Amendment.

*

Thus begins my latest piece for AlterNet, The Fred Phelps Supreme Court Decision and Why We Shouldn’t Look for Loopholes in the First Amendment. (This actually went up a few days ago, btw, but I somehow missed it when I was on my speaking tour.) To read more, read the rest of the piece. Enjoy!

Comments

  1. Miles McCullough says

    I side with the first amendment almost every time it is challenged – it definitely does not include the right not to be offended for example.
    However, after watching a video of recent protests outside a Muslim family gathering in California, it became clear to me that an exception should be made for protests outside private family gatherings.
    It should be made because such protests are always and everywhere harassment and intimidation. I want the right to freely criticize any idea in public announcements and private conversations, but protests of private, family gatherings are not conversations. They are always and inescapably attacks on individuals, not ideas, by the mere choice of venue. I would gladly give up my right to protest outside churches on Sunday to ensure that atheist family events won’t be subject to similar, though undoubtedly far less polite, protests.
    It’s a question of conflicting rights, much like segregation. Segregation is always unequal, and integration takes precedence over the rights of employers or service providers to discriminate – i.e. to act freely.

  2. says

    I agree with you on this, Greta. As vile and horrible as the Westboro Baptist Church is, they do have a right to do the protests. They came to my school once (to protest outside our school’s chapter of a Jewish organization called Hillel), and there was a very large counter-protest. I wanted to go, but I was in an exam. When I went there after the exam, the protest was already over. A classmate told me that the WBC had left after only a little while, since the counter-protest was so big. That’s what I think more people should do.
    I hope that there are similar rulings on cases in which people are expressing the opposite opinion. One of the most frustrating aspects of this is that, while we are expected to respect the rights of homophobes (and I do agree we should respect their rights) they don’t want anyone (especially kids) to know that gay people even exist. So, somehow, Fred Phelps has rights, but books with gay characters are considered dangerous for children to read.
    @Miles McCullough: I saw that on The Daily Show with Jon Stewart. It’s disgusting beyond belief. People don’t seem to understand that, for many American Muslims, America is home; their definition of American doesn’t include anyone different from them.
    I wasn’t sure about the details, though. (Were they blocking the entrance, interfering with the actual event inside, etc.?) If they were doing these things, then I agree they should not be allowed, but if they were not actually interfering, then I have to say the same thing I did for the WBC: The protesters are hateful, but they should be allowed (with safety precautions, such as police, to make sure they don’t attack the people at the event).

  3. says

    …an exception should be made for protests outside private family gatherings.
    It should be made because such protests are always and everywhere harassment and intimidation.

    Miles McCullough: The problem with your argument is that, in the Fred Phelps incident being judged by the Supreme Court, the protests of the funeral were not invasive or disruptive. It was not harassment and intimidation: the protests happened so far away from the funeral that the plaintiff in the case didn’t even know they were there until he saw it on the news later.
    So, as I pointed out in the piece, “The emotional upset wasn’t brought on by the funeral being protested. It was brought on simply by hearing about it on the news the next day, and knowing that the protests had happened at all. If the protests had happened in the next street, or the next town, or the next state, the effect would have been the same.
    “So how would you propose to write a law banning this? Should we write a law saying that nobody is ever allowed to express political protest on the occasion of someone’s death?”
    I’m sorry if I sound testy — but I pointed this out more than once in this piece, I have pointed it out every time I have written about this case — and it’s very frustrating to have it keep being ignored. It is one of the most important elements of this case. If you’re going to continue to criticize the SCOTUS decision, you really need to address it.
    As for the video you linked to: As shameful and terrible as this event was, I feel compelled to point out that it was not a protest of a “private family gathering.” It was a protest of a fundraising dinner held by a non-profit relief organization. Those are very different situations, and it’s disingenuous at best to try to present one as the other.

  4. emily says

    So far, the dissenting opionions I’ve seen have been focused on why Westboro’s actions are more accurately defined as assault instead of free expression.
    I don’t think that point is best described as “looking for loopholes.”
    For instance – Is someone who shouts “F—-t!” at individuals exiting a gay bar enjoying free speech, or is that person committing assault? That’s assault as far as I’m concerned.
    Reducing a political opinion or legal discussion to an unrelated, nonsensical premise is beneath you. Disagreement is fine, and I’m interested in hearing a response to the actual argument, instead of this poorly stuffed strawman.

  5. says

    So far, the dissenting opionions I’ve seen have been focused on why Westboro’s actions are more accurately defined as assault instead of free expression.

    Sigh.
    And for the eighty seven millionth time: The protests at this particular funeral happened 1000 feet away from it — so far away that the plaintiff didn’t even know they were there until he heard about it on the news later. How does that qualify as “assault”?
    Again, I apologize if I’m getting testy here. But I addressed the “assault” and “harassment” question in this piece. I pointed out why it doesn’t hold up. I have pointed it out every single time I have written about this. And it keeps getting ignored. If you’re going to debate this case, please familiarize yourself with the basic facts of it. Thank you.

  6. Rieux says

    Many progressives have expressed outrage at this ruling. And from an emotional point of view, that outrage is totally understandable.

    Emotional, understandable, meh—maybe.
    At the significant risk of being intemperate, it seems to me that anyone who actually disagrees with this Supreme Court decision in this case forfeits any claim to being “progressive.” Freedom of expression, and of protest, is not negotiable. Pretending that speech—even bigoted speech—can somehow ethically be banned (with cute pirouettes like pretending it’s “assault”—spare me) is uglier and more evil than Westboro’s speech itself is. The WBC, unlike “progressive” wannabe censors, are not acting in all of our names.
    Note that the Court’s vote count was 8-1, with only right-wing freakozoid Sam Alito in favor of torching the First Amendment. Anyone who is less interested in protecting protest rights than Antonin Scalia and Clarence Thomas are can’t possibly be “progressive.”

  7. says

    Well said, Greta. If we liberals are willing to cast aside freedom of speech when it suits us, who will ever stand up for the principle when it’s really important?

  8. Sean says

    “Is someone who shouts “F—-t!” at individuals exiting a gay bar enjoying free speech, or is that person committing assault? That’s assault as far as I’m concerned.”
    Sorry, but this just made me facepalm sooo hard.
    A) Assault is definitionally a crime of physical violence, so this can’t possibly be true in the literal or legal senses. There is no name I can call someone that’s going to magically break their nose or crack a rib. The word you were looking for is harassment.
    B) There are laws about not standing right outside private property (whether a business or home) and harassing individual people who are trying to go about their normal business there. Those cases have been well established and settled in previous cases, mostly involving abortion protesters crowding around the entrances of clinics or haranguing abortion doctors at home, and there are, in most jurisdictions, laws that prevent protests from damaging people’s use of their private property (including by driving away business at a bar by harassing all the customers at the door). That’s not even the situation at issue here, because the Phelps clan were barely even visible from the funeral procession route!
    C) The more analogous situation would be someone who walks down the street saying (not screaming) “So-and-so is a f*****-lover!” and “F***** suck!” in a vague and undirected way to the people passing by. And then getting media coverage because people notice what a bizarre little bigot that person is. That’s called being an asshole, or even being unhinged, but it’s not illegal, and it shouldn’t be.

  9. Leo says

    @emily: I want people to be legally allowed to shout “Faggot!” at me. Their right to call me a faggot is more important that my right not to be called a faggot.
    Hate crimes laws are good, but they should be (and are) limited to making more severe things that are crimes even when prejudice isn’t involved. Beating me up is illegal, so it’s okay for beating me up while yelling “Faggot!” to be more illegal.
    Verbal bullying can hurt, even kill (fuck sticks and stones). But “Stop spewing your repulsive opinions” is way, way overkill. All we need to enforce is “Stop spewing your repulsive opinions in front of me”. Where “in front of me” certainly doesn’t cover a public venue where I’m not.

  10. Locutus7 says

    The putative right to not be offended is truly bizarre. When did we become so concerned about what others think or say?

  11. John the Drunkard says

    Has anyone else checked for the Bible ref on the sign?
    I include the preceding and following verses, in case anyone wants to plead context.
    Rom 9:12 It was said unto her, The elder shall serve the younger.
    Rom 9:13 As it is written, Jacob have I loved, but Esau have I hated.
    Rom 9:14 What shall we say then? [Is there] unrighteousness with God? God forbid.
    Just what do Phelps and co. think this means?

  12. says

    Good post, Greta. The Phelps’ are vile, hateful little worms, but they have the same rights everyone else in the USA has. The value of free speech can’t be overstated. Anyone who seeks to curtail it, even in situations in which curtailment appears – superficially – to be warranted, does so at great risk to basic freedoms. Americans really need to start growing thicker skins.

  13. says

    I have been reading your blog for about a year now without commenting. Great blog by the way.
    An interesting mix of atheistic and erotic writings and both share one thing in common. No person should ever be able to tell another person what they can and cannot say, print, or think. Period.
    The question that several commentators bring up I think concerns actions. If I threw a cross at your face while you were praying on your prayer mat, that is an action, and a reprehensible one that should be punished. If I stand on a street corner and scream dead soldiers are gods wrath for fags, that is offensive speech to many but still protected speech. Now if I join your funeral party and make a scene while calling your dearly departed nasty names, then cuff me and take me to jail because I just crossed a line from free speech to criminal action.
    Now I personally would never do any of those things. At least I like to think I never would. I might protest the Pope’s visit to the US if I was in the neighborhood. And if I didn’t have anything better to do that day. And there wasn’t a ball game on TV. You get the idea.

  14. says

    Now if I join your funeral party and make a scene while calling your dearly departed nasty names, then cuff me and take me to jail because I just crossed a line from free speech to criminal action.

    But the WBC didn’t do that.
    For the eighty seven million and first time: They didn’t join the funeral party. They stood 1000 feet away from it — so far away that the plaintiff didn’t even know they were there until he heard about it on the news later — and picketed peacefully. How does that cross the line from speech to action?

  15. Sean says

    Er, Greta, I think John was agreeing with you in a roundabout way. Commenting on where the line should be drawn (without specifying that he thought the WBC belonged on what side). I dunno; that’s what I got from it.

  16. Skeptical Atheist says

    Greta I have a feeling you are trying to equate all Religious/Spiritual people with this loony Fred Phelps.
    I have been rigorously going through your blog for the past week or so and although you do bring up a lot of good points I am disappointed by the way you look down on religious people and the way you think that Atheists are some how smarter and bear a huge responsibility for the survival of the human species.
    Atheists are not the only people that can think critically, in fact Atheists are some of the most angry and bitter people that I have ever come across.
    There are highly qualified Doctors, and Scientists who are also Spiritual/Religious. What do you have to say about that?
    You should learn to calm down, you are way too angry, learn to embrace love and kindness.
    Yes we all know you are highly intelligent and smart, but please include kindness as one of your traits.
    There is no need to be a bitter Atheist.

  17. says

    Skeptical:
    Maybe you aren’t reading the same thing I am..but where was Greta attacking religious people, anyway??
    I thought that this was specifically about the SCOTUS decision defending Westboro Baptist Church’s right to protest.
    Greta has just as much a right to vent on whatever she pleases on her blog…bitter or not.
    As for the decision itself: well, as much as I despise Westboro and their innately fascist message, as long as they didn’t attempt to directly intervene in the funeral, their right to protest was correctly affirmed. The First Amendment isn’t just for opinions we like; it is especially for and supports opinions we don’t.
    Anthony

  18. says

    Me again. Yes I was Agreeing with Gretta that WBC had not crossed the line of action that is required to cause justifiable retribution.
    Their speech is offensive and funeral members have no expectation or right to be able to avoid that speech. My comment was that joining the funeral party and causing a scene would be crossing that line. Standing 1000 ft away chanting on a street corner was not.
    I was not clear and I ramble sometimes so please forgive me.
    I have seen pictures and video of the WBC online but never been close enough to one of their events in person. I wonder if I could maintain my temper in their presence. I hope I never have to find out.

  19. Rieux says

    SA:

    I have been rigorously going through your blog for the past week or so and although you do bring up a lot of good points I am disappointed by the way you look down on religious people and the way you think that Atheists are some how smarter and bear a huge responsibility for the survival of the human species.

    What nonsense. This is an absurd misrepresentation of Greta’s work.
    I suggest that you produce the material you have been “rigorously going through” that has brought you to such insulting conclusions. I think your criticisms are baseless.
    Where is this “bitterness” you purport to see in Greta’s work? Let’s see it.

  20. says

    Please note that while the Supreme Court validated the free speech rights of the WBC, they did *not* rule on whether those rights are superseded by the rights of families to have funeral proceedings without disruption. In fact, the court talks a bit about time and place restrictions on the 1st Amendment, and seems to hint that such restrictions would be properly applied in such a case.

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