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.
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!