Isn't Free Speech Important Enough to Tolerate Fred Phelps Screaming 'F*ggot' at the Funerals of Dead Soldiers?

Last week, Arizona passed an ordinance barring protests within sight of funerals. It's the latest in a slew of popular laws that criminalize the very unpopular political expression of Fred Phelps and his clan from the Westboro Baptist Church – the “God Hates Fags” freakshow. They're very popular but very un-American, because our Constitutional protections don't exist to protect popular speech.

People like these laws because they represent basic common sense. Of course one shouldn't be able to wave signs at military funerals declaring God's distaste for “fags” and rejoicing in those soldiers' deaths. But the freedom of speech and expression is a core liberty, and as such, it shouldn't be subject to the sensitivities of the community. It should never be subjected to a popular referendum, nor limited in response to some current outrage – to the “passions of the day.”

Of course, we tolerate other restrictions on our right to speak, assemble, and yes, offend others. You can't yell fire in a crowded theater (unless it's on fire, of course), and “ fighting words” aren't protected. Neither is slanderous or obscene speech.

But what distinguishes those exceptions from efforts to limit political speech near funerals is that every other limit on our right to speak and assemble is based on an argument – whether valid or not – that it's necessary to prevent some harm from coming to others. Not discomfort or emotional distress, but some demonstrable harm. These laws are only meant to shield mourners' sensitivities – and those of the larger community – from political views, or at least tactics, that most of us find repellent.

These laws are as likely to pass Constitutional muster as the “free speech” zones that have become increasingly common at political conventions – the courts have held that the government can regulate the time, place and manner of speech – and they're just as wrong. Despite their popularity, these laws affect all of our liberties – Fred Phelps' right to express views in a way that is decidedly outside the mainstream is inextricably connected to my own ability to express unpopular views without being subject to arrest by the police.

It's hard for people to grasp that connection because the Westboro Baptist clan is generally thought to occupy a space far out on the fringe of America's political culture. Decent Americans don't want the right to slur gays at funerals, but the question is: who gets to determine what speech is so offensive that we have to throw out the First Amendment to ban it? Where is that line, and how do we know we may not one day end up on the wrong side of it?

Having spent a day talking to Phelps and his followers as I followed them from protest to protest in Topeka, Kansas a few years back, I can report that their views are in fact fairly common among right-wing Christians.

Of course, only a tiny minority of religious conservatives would agree that “God hates fags,” and the number who would put that message on placards and wave them at funerals for troops killed in Iraq or Afghanistan is, thankfully, more or less limited to Fred Phelps and the numerous offspring who make up his “congregation.”

But it is only their shtick that's way out there. Their patently offensive rhetoric – and choices of venue – explain why nobody ever mentions how pedestrian their religious, social and political views actually are.

Like millions of religious conservatives, they believe that America is a Christian nation that is currently in decline because of the moral degradation of its culture. Homosexuality, abortion and other deviations from (their interpretation of) Biblical scripture are ultimately to blame for our nation's problems, including the wars in Iraq and Afghanistan. Their crazy displays are simply an out-there but entirely logical extension of a belief held by many Christian conservatives that the National Review's Peter Wehner once described as being as “neat as a mathematical equation.”