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

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.

I want to get into some specific arguments progressives are making against this decision... and why, specifically, they don't hold up. But before I go there, I need to make this core principle very, very clear:

We should not. Be looking. For loopholes. In the freaking First Amendment.

The First Amendment, and the right to the free expression of political ideas, is one of most crucial cornerstones of our democracy. Without it, democracy collapses. Without the freedom to express political opinions, we can't participate fully in the political process. Without the freedom to hear political opinions, we can't make informed decisions about what we think. And without the freedom to hear and express opinions that dissent from the mainstream, there is no way that mainstream opinion can change. The right to free speech is an essential part of democracy. And it is, in and of itself, a basic human right, a value that is worth treasuring and protecting for its own sake.

So our default assumption should always, always, always be that speech should be free, unless there is a tremendously compelling reason to limit it.

And this principle especially applies to political speech: expression of opinion on matters of public concern, in a public place, that doesn't disrupt any private activities.

Which is exactly what the Westboro Baptist Church was up to. They were in a public place. They were not violent; they were not disruptive; they were not invasive. Yes, they picketed a funeral. They picketed a funeral from 1,000 feet away -- so far away that the plaintiff didn't even know they were there until he heard about it on the news the next day. As repugnant as it was, what the Westboro Baptist Church did in this case was political speech. The only thing that made it different from any other political speech was the hateful, vile, abhorrent content.