Old Time Religion

From our old friend Peter Kranzler comes a link and a question. The link is to this news item, which tells us that the infamous Westboro Baptist Church of Topeka, Kansas, has been ordered to pay $10.9 million to relatives of a U.S. Marine killed in Iraq, after church members jeered at people attending his funeral.

The unaffiliated “church” is little more than a front for the venomous bigot Fred Phelps, who has chosen to express his loathing of homosexuals by picketing military funerals with signs declaring that God Hates Fags. In his view, God is causing soldiers to be slaughtered as an expression of His disapproval of America’s tolerance of gays.

It would be an amusing diversion to spend a few sentences rebutting Mr. Phelps’s obscene and incoherent ravings, and a paragraph or two on a pungent opinion of the man himself, but I won’t bother. We can all see what sort of person he is, and he vilifies himself far more effectively by his despicable behavior than I could manage with words.

So we come, then, to Peter’s question: In your view, does (or should) the first amendment protect the church members?

Well, readers will be familiar with Peter’s political views from his many comments here, and I’m fairly confident that I know what his opinion will be, namely that it does.

However, while I agree without hesitation that the unspeakably vile Mr. Phelps has a Constitutional right to express his views, I do think it perfectly sensible that there should be applicable statutes regarding harassment. I see no reason why a humane and civilized body of law should not acknowledge the solemnity of a funeral. Grieving for our dead, and laying them to rest with sorrowful respect, is perhaps the most ancient and universal human experience of all, and one that knows no cultural or political boundaries — and it is hard to imagine a more loathsome violation of all human decency than what is described in this lawsuit.

So it’s one thing for Phelps to spew his filth from his website, or his press, and quite another to despoil a young man’s funeral, to taunt and jeer and mock and harry these poor people as they lay their brave son to rest.

Why, if I’d been there, I think I’d have beaten the blackguard to a jelly myself, and the consequences be damned.

Your comments are welcome, as always.


  1. the one eyed man says

    You are correct in surmising that I believe that the First Amendment provides (or ought to provide) an absolute protection for all speech which expresses an idea (i.e., there is no First Amendment protection for libel, commercial speech, yelling fire, printing troop movements in a newspaper, etc.). I believe that the protests, loathsome though they are, ought to be protected.

    In the case which most closely resembles this, the Supreme Court held that the Nazi Party did not have the right to march through the Jewish neighborhood of Skokie, Illinois, because of its offensive nature and its likelihood to provoke a violent response. I think that ruling was in error.

    Beyond the fact that the words in the First Amendment don’t provide for exceptions, the spirit behind it is that the state does not have the right to censor even the most abhorrent ideas from being expressed, as it has neither the competence nor the mandate to determine which ideas are permissible and which are not. Hence, all ideas are permissable.

    There is a similar situation in my neighborhood where an anti-abortion zealot drives around in a van plastered with disgusting pictures of dead fetuses (which upset my child no end when she was younger). He also parks it outside a church on Sunday, which evicted him as a member but could not prevent him from parking his car on public property.

    If there is a basis for criminalizing what Phelps or the abortion nut does, what would it be? Any basis for illegality, it seems to me, has to derive from the harm which these acts can reasonably be assumed to cause.

    The problem then comes in the subjectivity of the harm. Surely any sentient being would be offended (to say the least) by what Phelps does. However, if I told George Bush that he were a ninny, he might also be offended. Where do you draw the line?

    If it is illegal to demonstrate in front of a funeral, then what about a communion? A bar mitzvah? A birthday party?

    And while we would all agree that what Phelps does is despicable: what if they simply had placards which said “bring our troops home from Iraq?” That could offend the funeral party too — where do you make a distinction?

    In a case on pornography, Justice Stewart said that while you couldn’t make a legal definition of porn, it could nonetheless be criminalized because “I know it when I see it.” (Presumably he watched a lot of it to sharpen his critical faculties). I think that’s nonsense: Steward probably has a different definition than Al Goldstein, and I don’t see why the state should decide which of the two of them is correct.

    In my view, the state should not be in the business of making these kinds of distinctions, not least because (for example) what Martin Luther King did was as offensive to some as what Phelps or the abortion guy do. What Kos does is offensive to Limbaugh and vice versal. If you use the harm caused when someone takes an offense at an idea which is expressed — no matter how crudely nor in an outrageously inappropriate venue like a funeral or a church service — then you have no basis in law for permitting the expression of other ideas which also cause offense.

    So if we should not ban some speech, does that mean we should allow all speech, no matter how despicable it may be? Regrettably, yes. There are some acts which we may all agree are heinous, but are not within the proper realm of the state to prohibit.

    Posted November 1, 2007 at 12:26 am | Permalink
  2. Malcolm says

    Hi Peter, and thanks for that thoughtful and persuasive comment. I hope others will weigh in on this also.

    I am rather short on time today, and can’t respond at length. So, in brief:

    I completely agree that there should be no restriction upon the expression of ideas. As I argued in the post, I think Fred Phelps has every right to air his views. I do, however, consider it reasonable that civilized societies place restrictions upon behavior, and that is what is applicable here. We legislate decency in various forms; you would be swiftly jugged for standing naked on a street corner pleasuring yourself, for example, and I consider Phelps’s actions no less indecent.

    You ask where to draw the line, and I think this is perhaps the place where our political philosophies diverge most clearly. I think the drawing of such lines is an essential function of representative government, and of its courts. What should the drinking age be? The age of consent? At what point in pregnancy should we outlaw abortion? The world is made up of continua, and we are not always best served by laws that deal in absolutes.

    Posted November 1, 2007 at 11:05 am | Permalink
  3. duncan says

    As a first amendment case, it’s a no-brainer. On the facts, it’s pretty
    comparable to Skokie; and it has all the elements you want in a good
    first amendment case: sympathetic plaintiffs, a hateful and poorly-
    represented [1] defendant, and clearly political speech. In many respects
    Brandenburg is a better comparison because what these guys were
    doing was more offensive (also Skokie had an element of prior restraint
    which wasn’t present here).

    On that point about political speech, this is the crux of limitations on the
    first amendment. The general interpretation of the first amendment is
    that it only protects political speech. This limitation is commonly described
    by the example of shouting fire in a crowded theater just to incite a riot,
    as described by Holmes in Shneck. And don’t bother with arguments
    about Kos and Limbaugh as there are well-established exceptions dealing
    with public figures; see, e.g., Hustler Magazine.

    Now I haven’t read the case (lower court opinions aren’t published) but
    it seems on loose reading of the facts that this was clearly political
    speech. I don’t think the Phelpses were in “God-hates-fags” mode, but
    they also do a “God-hates-america” thing (which they’ll helpfully sing
    for you on their website). In either case I think they’re making a
    valid, if somewhat cryptic, point that is clearly political. Nor were they
    trying to incite a riot.

    Now get that all out of your head, because this case isn’t about the
    first amendment, it’s about abortion.

    The tort of “violation of privacy” is somewhat murky. I think it largely
    stems from Prosser on Torts, but even that relatively recent construction
    is very limited. For the most part, it stems from publication of private
    facts, which is not applicable here. Nevertheless, the tort bar moves
    quickly to construct new torts all the time, based on various loosely-
    defined rights (not to mention creeping ever closer to strict liability).

    Libel and slander have been around for a while. “Intentional infliction of
    emotional distress” was a construct based on harassment and assault
    or trespass (technically all torts stem from trespass) which has been
    all but enshrined in the common law over the last thirty or forty
    years. But I’m not familiar with finding of tort based on nothing more
    that violation of a right to privacy – especially when (as I think was
    apparent here) that the violators were in the public square.

    Now the right to privacy is itself something of a construct, arising out
    of a series of decisions eventually culminating in Roe, and recently
    tested in Casey and Lawrence. It’s usually based on reading of the 14th
    and 5th amendments, with emphasis on the due process clause of the
    14th. Use of this right as a defense is generally limited to reliance on
    the case law, with similar fact patterns.

    Unless absolutely necessary, most lawyers wouldn’t cite the constitutional
    right to privacy absent a really comparable fact pattern, because it’s both
    legally tenuous and politically fraught. The tort bar has no such qualms,
    however, and will generally throw as much as possible at the wall in the
    hopes that it will stick to some money. So it’s not surprising that this
    would come up in the context of tort, particularly because of the obvious
    first amendment counterclaim. The lawyers in this case probably
    reasoned that the first amendment would arise as a defense, and that
    they needed a constitutional basis for the claim. (Not to mention that
    if they could enshrine a new tort, they’d have one more thing to sell on
    the subway).

    So now in this case on appeal you have the first amendment claim
    against a tort judgement based (at least in part) on the violation of a
    right to privacy. So as this case works its way up the courts [2] those
    will almost certainly be the issues the various courts will address.

    All of which means that this can become a test case for the right
    to privacy, measured against the first amendment. Roberts, Alito, Scalia,
    and Thomas have all expressed skepticism of the former, and not only was
    Casey 5-4 but it reversed Alito in the lower court. There’s no explicit
    right to privacy, and this is one of the things that’s meant when
    people like Giuliani say ‘strict constructionism’.

    However it’s additionally interesting because of the inherent political
    nature of the plaintiff – here you have a dead marine, and a finding for
    the defendant could be viewed in some measure as a rebuke of the
    war (or at least as “not supporting the troops”). But as with the ACLU
    defending Nazis in Skokie, complicated cases make strange bedfellows.
    Here you might have the Bush administration siding against the dead
    marine, in order to help knock down abortion.

    [1] in the sense of not being a large part of the population,
    I understand there are some sharp lawyers in the Phelps family.

    [2] There’s no reason to believe the Phelpses would not be interested
    in a long court battle, although the family might drop it at some point
    if they get tired of the attention. Note that as a tort case it’s a state
    matter, which means it can go through the state appellate court, then
    the state supreme court, and then into the federal supreme court
    should they grant cert.

    Posted November 1, 2007 at 11:12 am | Permalink
  4. Malcolm says

    Hi Duncan, and thanks for joining in, as I had hoped you might.

    I have lots of general opinions about the law, but as it’s not a subject in which I have ever made any real effort to educate myself, they are formed in near-total ignorance of the technical details about which you are so richly informed. We are grateful to you for giving us such an expertly guided tour of the legal niceties involved here.

    So what’s your sense of the outcome? If you had to say yes or no, how would you answer Peter’s question? Does the Constitution protect the Phelpses?

    Posted November 1, 2007 at 11:37 am | Permalink
  5. Duncan: a fascinating post, thanks.

    Malcolm: I agree that “civilized societies (should) place restrictions upon behavior,” but the behavior here is not the issue. The behavior is walking around and carrying signs. The offense is the message that was on those signs, which is speech. It is the content of that speech, and not the behavior itself, which is the basis of this case.

    As for continua and making judgment calls: I completely agree. However, I think that speech issues are sui generis because of the unique nature of the expression of ideas, and here there should be an absolute. As individuals or as a society, we are all free to make whatever calls we want, but in order to protect individual expression from the tyranny of the masses, the state does not have that right. I’m sure that if in 1964 you asked Americans if a Black, Cuba-loving, Communist revolutionary should be put in jail for his writings, you would have gotten a huge majority — but that doesn’t mean that Malcolm X (or Ralph Ellison, for that matter) should be thrown in jail for their books. Hence the need for an absolute protection on the expression of all ideas, no matter how abhorrent they may be.

    Posted November 1, 2007 at 11:58 am | Permalink
  6. Malcolm says

    Peter, I understand the effort you are making to separate speech and behavior here, and you make a good point. But Phelps and company are prefectly free to get their message out in any number of ways; the distinction in this case is that by their intrusion on Corporal Snyder’s funeral there is also a clear intent to inflict emotional harm of a sort that raises legitimate questions of verbal assault.

    The analogy of jailing Malcolm X for his writings is not applicable; I am not suggesting that there should be any limit placed upon Fred Phelps’s freedom to publish his opinions. I agree that our laws, above all, must give absolute protection to the expression of ideas; this is the fundamental freedom upon which all others rest. But I also think it not unreasonable to hope that they might compel a certain baseline level of simple human decency. We are talking about the difference between freedom and license.

    Posted November 1, 2007 at 12:24 pm | Permalink

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