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.

And when we're considering questions of free speech and the First Amendment, the content of the speech, and whether or not we find it hateful and vile and abhorrent, is entirely irrelevant.

Are there some reasonable limitations on speech? Of course. Some classic examples: laws against libel, fraud, false advertising, copyright violation, revealing state secrets. I'm sure we can all come up with some more.

But if we care about freedom and democracy as much as we claim to, then our default assumption should be that speech is permitted. We should not be looking for excuses to ban speech we don't like. We should not start with the conclusion that the ghoulish expression of disgusting political opinions should be banned, and then go hunting for legal loopholes that will let us accomplish that. We should start with the assumption that the expression of political opinions should of course be permitted... and treat any attempt to limit it with extreme suspicion, and the expectation that it better have a damn good reason behind it.

We should not be looking for loopholes in the First Amendment.

And that's exactly what progressive objections to the SCOTUS decision look like. They don't look like sound reasoning based on solid legal and ethical principles. They look like rationalizations for an emotional reaction. They look like contorted excuses for why, in this particular case, we don't really need to care about the First Amendment.

Here are a few examples of what I mean.

"Funerals are private affairs -- and people have a right to not have their private affairs disrupted and invaded."

Right. That's a reasonable argument. Or it would be... if the WBC had been disruptive and invasive of the funeral in question.

But they weren't. Like I said before -- like I keep saying again and again when I discuss this case, since so many people seem to be doggedly ignoring it -- in the particular case considered by the Supreme Court, the WBC was so non-disruptive and non-invasive of the funeral that the plaintiff didn't even know they were there until the next day. 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?

When Nelson Rockefeller died, the lefty radio station in New York played "Ding, Dong, The Witch Is Dead." When Spiro Agnew died, I saw oped pieces in newspapers basically saying, "Good riddance to bad rubbish." When Richard Nixon died, Hunter S. Thompson wrote a piece excoriating him, calling him (among other things) "scum," an "evil bastard," "a cheap crook and a merciless war criminal," and "a political monster straight out of Grendel," and expressing the wish that his body be burned in a trash bin or launched into an open-sewage canal. Tasteless? Yes. I, personally, would not do that (although I do have a sneaking admiration for the uniquely articulate vitriol of the Thompson piece). But were these legitimate forms of political speech on matters of public concern? Absolutely.

And as long as the pickets didn't actually disrupt the funeral while it was in progress, I don't see how the WBC protests are any different.

Except for the content of the speech.

Which is exactly what we can't write laws limiting.

And this argument looks exactly like an attempt to write laws limiting speech, simply because we don't like the content -- and to rationalize after the fact why that would be okay.

"Yes, free speech is important -- but there are limits. You can't yell fire in a crowded theater. Your right to swing your fist ends where my nose begins. Etc."

Right. There are limits to free speech.

Why should this be one of them?

Again -- free speech is one of the most basic and crucial cornerstones of democracy and freedom. Free political speech especially. We should not be thinking, "Why does this form of speech deserve protection?" We should be thinking, "Why is this form of speech under attack?" Our default should be that speech should always be permitted -- unless there's a powerfully compelling reason to restrict it.

And "We find the content of this speech revolting" does not qualify.

In fact, the exact opposite is true. The whole freaking point of the First Amendment is the protection of unpopular speech. It wasn't written to protect our right to say that puppies are cute and apple pie is delicious. It was written to protect our right to say things that make people flee in horror... from "God Hates Fags" to "Gay Is Good," from "Stop the War" to "Bomb Them Into The Stone Age," from "God Wants Our Soldiers To Die" to "God Does Not Exist."

It's true that our rights are limited when our actions impinge on others; that our right to swing our fist ends where someone else's nose begins. But when it comes to free speech, we have to ask, "What constitutes a broken nose"? In the case of laws against fraud, libel, copyright violation, etc., the damage from the speech is clear, and it's material. But in the case of this funeral protest? The damage was, "Hearing opinions that were profoundly upsetting."

And that is exactly what we don't have the right to be protected from. We don't have the right to be protected from hearing ideas we find upsetting. The expression of opinions we find upsetting -- opinions on public matters, expressed in a public place, in a manner that does not invade private space -- is exactly what the First Amendment was written to defend.

You can't just say, "There are some reasonable limits on free speech -- therefore, this particular limit on free speech should be considered reasonable." Again, the burden of proof should be on the people trying to ban the speech -- not on the people speaking it. Our default assumption should not be that limiting speech is reasonable. Our default assumption should be that limiting speech is a bad, bad idea, and should only be done in rare cases, where material harm is being done, as an absolute last resort.

So if you're going to argue that a particular form of speech should be limited, you have to make a compelling, positive argument as to why this form of speech does material harm. And it can't have anything to do with whether the content of the speech is objectionable, or upsetting, or utterly reprehensible.

And this argument looks exactly like an attempt to write laws limiting speech, simply because we don't like the content -- and to rationalize after the fact why that would be okay.

"This violates fundamental rules of human decency."

Yup. It sure does.

So what?

"Pink Flamingos" violates fundamental rules of human decency. "I Spit On Your Grave" violates fundamental rules of human decency. Anti-abortion marches with signs showing aborted fetuses violate fundamental rules of human decency. Cartoons comparing Barack Obama to a monkey violate fundamental rules of human decency. "Robot Chicken" violates fundamental rules of human decency. "South Park" violates fundamental rules of human decency. Hell, Celine Dion violates fundamental rules of human decency.

So what? It's still protected speech.

Basically, what people are saying here is, "They're rude." Okay, granted, that's trivializing the matter. What people are saying is, "They're really, really rude. They are truly, horribly, appallingly rude. They are offensive beyond our powers to describe."

Yup. They sure are.

And we don't write bad manners into law.

When people exhibit bad manners, we scowl at them. We turn our noses up at them. We tell them they're being rude. We speak out against them. In extreme cases, we shun them from polite society, or organize protests against them, or try to get them fired from their jobs.

But trying to write bad manners into law? That's a textbook definition of an attempt to write laws limiting speech, simply because we don't like the content -- and to rationalize after the fact why that would be okay.

"This isn't protected speech. This is harassment/bullying/incitement to violence/a violation of privacy/a hate crime."

Uh... no.

Once again, if you're making any of these arguments, you really need to look at the facts of this case. (The New York Times has a decent summary and a link to a PDF with the full SCOTUS ruling.)

The WBC did not follow people down the street screaming threats. They didn't stand around a fistfight shouting, "Kill him!" They didn't beat someone with a crowbar yelling, "Die, faggot!" They didn't even scream in the mourners' faces. Again -- for what seems like the bezillionth time in all the conversations I've had on this topic -- the funeral protests in this case were quiet, non-violent, compliant with local laws and police instructions, restricted to public property, and so non-invasive that the plaintiff didn't even know they were there until he heard about it on the news the next day. If the funeral was not disrupted, it's not an invasion of privacy. If no crime was committed apart from the disputed speech itself, it's not a hate crime. If imminent lawless acts weren't specifically being encouraged, it's not incitement to violence. And it is bloody well not harassment or bullying if you have to hear about the horrible things someone said about you on the news the next day.

I'm sorry if I seem harsh. I get that this case is upsetting, and I really am trying to be sympathetic. But these arguments disturb me. These arguments show a serious lack of familiarity with even the most basic facts of this case: an unfamiliarity that reveals an unsettling lack of concern about the case, and the genuinely important legal and ethical issues connected with it. These arguments look like attempts to ignore the facts, or even distort them, because they contradict the desired conclusion -- the conclusion that the WBC shouldn't be allowed to do what they do. They look exactly like attempts to write laws limiting speech, simply because we don't like the content -- and to rationalize after the fact why that would be okay.

Why on earth do progressives want to do that? 

Look. I, myself, am queer. I'm one of the people the WBC is specifically targeting with their venom. I'm one of the people they specifically think God hates; one of the people they think is on the straight track to hell, cheerfully dragging the rest of the country down with me. And I am every bit as revolted by Fred Phelps and the Westboro Baptist Church as anyone. What they do is monstrous, and I stand against them with every fiber of my being.

And there are many, many things we can do to stand against them. We can organize counter-protests. Organize same-sex kiss-ins at their protests. Support gay-positive education and the spreading of gay-positive ideas in the culture. Work against the bullying of gay kids in schools. Wear T-shirts that say, "Fags Hate God." Keep a vigilant eye on them, and if they do break any laws, smack them down. Make fun of them. Ignore them, on the theory that they thrive on attention and we ought not to give it to them. Speak out against homophobia whenever and wherever we see it. Make sure they not only lose the battle of history, but look like villains and fools doing it.

There are many things we can do to stand against them. But banning their speech is not one of them.

As a purely practical matter, this Supreme Court decision is one that progressives should be embracing. There is no way to make the WBC's speech illegal without making all unpopular speech illegal. And that includes unpopular progressive speech. There is no way to ban the WBC's non-invasive picketing of dead soldier's funerals without also banning feminists burning bras, or anti-war protesters re-enacting Abu Ghraib, or AIDS activists lying on the sidewalks spattered in fake blood.

And of course, many opinions that were once considered horrifying on the face of it are now considered mainstream, or at least a reasonable perspective in the public discourse. Among those opinions: Birth control should be legal. Religion should not be taught in public schools. Gay sex is okay, and gay people have rights. Black people are fully human, and ought not to be treated as property. Black people are fully human, and have the right to marry white people. Oral sex is not sick. Workers have the right to organize and collectively bargain for contracts. Poets have the right to say the word "Fuck." Women have the right to have orgasms. Women have the right to not be raped by their husbands. Women have the right to vote. All these opinions were once considered morally repugnant... and as a society, we couldn't have come to accept them if we hadn't had the right to say them out loud.

I'm not saying that the WBC's opinions are becoming mainstream, or that they should. Their opinions are vile: they are on the fringe of the fringe of the fringe, and they should stay that way. I'm saying that, as a society, we can't move forward and accept new ideas if we don't let people express ideas that we find shocking and upsetting. And I'm saying that, as a purely practical matter, if we want the right to express our opinions when most people find them revolting, we need to protect other peoples right to express their own revolting opinions.

But that's almost beside the point. We shouldn't embrace the SCOTUS decision because it works to our benefit and lets us persuade people that we're right. We should embrace the SCOTUS decision because we care about free speech. Period. Even when we don't agree with what people say, we should care passionately about their right to say it. Not so we can have our turn to say what we want. Because we give a damn about the principle that people have the right to say what they want. And that means everyone. Regardless of what they're saying.

If we truly care about freedom and democracy, we shouldn't treat the First Amendment like a local zoning law or some arcane bit of tax code. The First Amendment is one of the greatest leaps forward in human history and the evolution of human ethics. We shouldn't be looking for clever, sneaky ways to get around it.

There are many things we can do, and should do, to stand against Fred Phelps and the Westboro Baptist Church.

Looking for loopholes in the First Amendment is not one of them.


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