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The Westboro Baptist Church, Democracy and Death: Persistent, Omnipresent Questions Surround Supreme Court Case



The Westboro Baptist Church's appearance before the Supreme Court today truly embodies this nation's democratic ideals: opposing sides, with extremely different, vocal opinions, are given a chance to present their case before the highest court in the land, thus proving that little people have a place in government, too.

Of course, dig a little deeper and more fundamental debates begin to rear their head, one that's unique to the democratic challenge and one that's a bit more universal. It turns out these two elements come to blows, presenting Americans with perennial questions about free speech, death and the meaning of laws.

Much of the debate surrounding the Westboro Baptist Church has revolved around free speech. Was the Westboro Baptist Church entitled to bring signs reading "Thank God for Dead Soldiers" and "Fags Burn" to fallen soldier Matthew Snyder's funeral?

A jury originally answered in the negative, and awarded Snyder's family nearly $11 million in damages for the Church's actions. The WBC appealed, of course, eventually sending the case to the Justices.

The ACLU, 21 media outlets, including representatives from the New York Times and the Associated Press, and Free Speech scholars all issued briefs on behalf of the WBC's First Amendment rights. Most reasonable people would consider the funeral protests conducted by members of the Westboro Baptist Church to be inexplicable and hateful," reads the brief submitted by the Reporters Committee for Freedom of the Press.

Without a doubt, the church’s message of intolerance is deeply offensive to many, and especially so to gay Americans, Catholics, veterans, and the families of those who sacrificed their lives defending the United States. But to silence a fringe messenger because of the distastefulness of the message is antithetical to the First Amendment’s most basic precepts.

Yes, their brief addresses the case's "repugnant" details, a dead soldier's funeral, the signatories are quite clear in spelling out their Constitutional concern: "The particular facts of this case should not be used to fashion a First Amendment exemption for offensive speech." Over three dozen U.S. Senators see the matter through a more apolitical lens.

"In our nation, as in nearly every culture and religious tradition, proper burials play a crucial role in helping the bereaved mourn the dead," declare 42 politically opposed Senators, like Harry Reid, Mitch McConnell and Al Franken. "The disruption of a funeral interferes with the necessary emotional process of grieving, and thus can inflict severe psychological and even physical distress on the bereaved. In recognition of the vulnerability of mourners, American courts have long recognized a 'right' to a decent burial."

As proof of this legal note, the Senators point out that Congress, as well as 42 states, have already enacted laws denoting which times and places people can demonstrate outside of funerals. These laws are not, they insist, contradictory to the principle of free speech.

So here we have two complex concepts: the First Amendment and the "necessary emotional process" that comes with death. The former concept is distinctly Democratic, while the latter more collective in nature, and far more inevitable.

Everyone, regardless of their ideologies and voting record, will die, and we will all mourn someone who has died. Which concept, then, is more worthy of being protected: the right to say outrageous things or the "right" to mourn someone in private? Does death, ever-worthy of respect, warrant a "no free speech zone," however temporary? Justice Ruth Bader Ginsburg today wondered aloud whether the First Amendment would tolerate the Church "exploiting this bereaved family."

Though the Westboro case, like Stephen Colbert's Congressional testimony, should be cheered as an example of democracy and civic discourse in action, the essential, elementary question cannot be ignored: Are laws created to sustain man or to constrain him? Are they a civilizing force, or an organic outgrowth of the general will? Do we have laws because we're naturally social creatures or because man's naturally ill-tempered and violent?

A recent study suggests that early man was indeed kindhearted. Does that mean our society, with its scores of fundamentalists and wing-nuts, went wrong somewhere?

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  1. However despicable, vile, and disgusting these people and their message may be, their actions are protected free speech under the First Amendment. To say otherwise would irreparably weaken free speech for all.

    "I disapprove of what you say, but I will defend to the death for your right to say it."

    -Evelyn Beatrice Hall, paraphrasing Voltaire

    Posted by: Rich | Oct 6, 2010 1:42:39 PM

  2. "thus proving that little people have a place in government"

    I imagine you didn't intend that to sound elitist and patronizing, but it struck me that way.

    Posted by: Tug | Oct 6, 2010 1:52:28 PM

  3. The first amendment gives everyone the right to spew their opinions, but it doesn't guarantee the opiners a specific right to a specific audience.

    I think SCOTUS will uphold the protests - but also uphold reasonable distance restrictions.

    Posted by: Andrew K | Oct 6, 2010 1:58:20 PM

  4. "Was the Westboro Baptist Church entitled to bring signs reading "Thank God for Dead Soldiers" and "Fags Burn" to fallen soldier Matthew Snyder's funeral?

    A jury originally answered in the negative"

    How is that correct? The plaintiff is asking that the defendant be held accountable for what they did in exercising a protected right to inflict harm upon, not that they be denied that right by the government.

    Posted by: jtaskw | Oct 6, 2010 1:59:05 PM

  5. They have the right to say whatever they want. They don't have the right to do it directly at the cemetery and disrupt the funeral service itself. It's as simple as that.

    Posted by: Steve | Oct 6, 2010 2:04:00 PM

  6. If you want to protest such things, do it on a street corner or on a blog. Don't show up at someone's funeral and harass the grieving family and friends. Somethings should just be a matter of common sense, not that religious people tends towards such things.

    Posted by: LiamB | Oct 6, 2010 2:04:16 PM

  7. *sigh* I'm of 2 minds on it.. I'm a huge believer in free speech, but I also believe that a funeral is one of the most heart-wrenching things a family has to go through and the last thing I would want to see while I'm laying a loved one to rest is a group of protestors across the street chanting inane crap disrupting the ceremony.

    It strikes me of the type of speech "FIRE!" in a theatre when there is no fire.. Sure, you can yell "FIRE!" but if it's not true, then you caused an unnecessary ruckus. If they want to protest soldiers dying, shouldn't they be at an Army base?

    Posted by: Darren | Oct 6, 2010 2:04:58 PM

  8. Actually...I don't have my law books on the subject handy but if you look at Supreme Court cases such as Gertz vs. Welch and New York Times versus Sullivan the court has pretty consistently held that speech with overt intent to harm isn't necessarily protected.

    Posted by: Butch | Oct 6, 2010 2:07:56 PM

  9. so the 1st amendment allows the tort of intentional infliction of emotional distress ? that is protected speeech ? to intentionally cause additional anguish on top of that already being experienced by the survivors at a funeral ?
    i hate to sound like a tea bagger or whatever those idiots call themselves but i daresy none of the founding fathers, if alive today, would say that this is the type of speech that was meant to be protected by the 1st amendment. To intrude on a private citizen's, private funeral and claim constitutional protection for heinous actions is the biggest load of crap i have ever heard.

    Posted by: jerry | Oct 6, 2010 2:13:18 PM

  10. The Cynic in me want to say:
    "Let them defame and disrupt the funerals of the soldiers all they want. If it was good enough for Matthew Shepherd and my dead friends, then it's good enough for the soldiers, too."

    Seriously after decades for this organization's (I don't like calling it a church) shenanigan's ... NOW it's an issue ?

    And to be honest.. the Phelps do we queer folks a great service. They freely show the ugly truth of the religious right to those who are typically not subject to its brutality. I learned this lesson from my dad: "Never underestimate the potential good influence that can come from having a REALLY bad example set for you."

    Posted by: Dego | Oct 6, 2010 2:14:48 PM

  11. And yelling Fire in a movie theater is illegal. When you cause people harm, emotional or physical, you're entitled to seek damages.

    I've also always wondered if the WBC gets permits for its protests. Anyone know? Seems like they'd have all sorts of lawsuits over that, too, given that lots of places would reject them both for the disruption and inconsistency with community standards.

    I don't find the free speech in a NYT article to be comparable to berating the family of a dead soldier at his funeral. So while I suspect SCOTUS will side the WBC, the community standards, military angle, and other issues might lead to some surprises.

    But as I and many others have said, the WBC has probably done more to help gay rights than many of our own organizations. Their brand of hate is absolutely repugnant to even the most conservative people---because they sound nuts. And when you insult dead soldiers and call them fags, well that's even nuttier.

    Posted by: Paul R | Oct 6, 2010 2:20:10 PM

  12. If speech is constrained to certain places and certain times, it's not "free." That's the crux of it.

    Sometimes, saying something in a particular place at a particular time is exactly the point. Taking that right away is tantamount to constraining speech.

    Look, WBC is -- in a word -- evil. But that's what makes us a great country: we can take the best shots of scum like Fred Phelps and keep on going.

    If people/the media stopped paying attention to these disgusting and hurtful antics, they would stop. Passing laws that run counter to our nation's bedrock principles is not the way to shut hateful scum like Phelps up.

    Posted by: dws3665 | Oct 6, 2010 2:23:04 PM

  13. 'If speech is constrained to certain places and certain times, it's not "free."'

    Agreed, but apparently the courts don't. I feel alive when I'm screaming fire in crowded places with limited exits. Don't trample my freedoms to do it!

    Posted by: TANK | Oct 6, 2010 2:27:17 PM

  14. I don't have an opinion on how this particular case should be decided. On the other hand I have ZERO sympathy for the Westboro baptists and if they have fines levied against them that permanently bankrupt them and prevent them from traveling anywhere, it would be less than they deserve.

    Posted by: Glenn I | Oct 6, 2010 2:30:12 PM

  15. WBC has picketed my friends' funerals before. I want the right to picket (and dance at with Donna Summers at high volume in the background) Fred's funeral as well.

    Posted by: kansastock | Oct 6, 2010 2:41:54 PM

  16. @DWS3665: Sorry but legally speaking you're wrong. There's a reason why people need permits to hold protests and it's because there's plenty of legal precedent set surrounding the government's right to prevent gatherings in specific locations.

    The thing the government can't do is prevent them from protesting at a funeral based on their hateful message. As long as they prevent people from protesting at funerals for all types of messages they're legally able to do so and they're not limiting free speech.

    Posted by: Randy | Oct 6, 2010 2:52:13 PM

  17. I can't describe how deeply I despise Fred Phelps and his so-called church. In (perhaps too) simple terms, their actions are unkind, uncaring and unChristian. Yes, I will agree they have a right to free speech, but if they're so-called Christians (which I most strongly believe they are not), then they need to act like Christ - he'd NEVER picket the funerals of soldiers, he'd NEVER willfully distress people when they are grieving.

    Posted by: Hawthorne | Oct 6, 2010 3:02:45 PM

  18. No one is throwing them in jail for speaking their minds. They can speak freely all they want, but if they harm other people they should be held accountable, just as they would in a libel or slander case.

    Posted by: spiderseye | Oct 6, 2010 3:03:57 PM

  19. It's not a case of limiting their free speech, it's a case of limiting their chosen locations and times of said free speech.

    I think allowing it at pretty much any location they want to do it (with a permit) EXCEPT at funerals is a pretty wide platform to spread their message of hate. I see nothing wrong with letting them show how horrible they are anywhere else, but why give them the right to do it at a PRIVATE funeral ceremony that just happens to be in a public cemetery?

    The drafters of the first amendment couldn't have possibly foreseen the nuttiness of the Phelps gang, so it must be redefined in a way that fits our world now.

    Posted by: johnny | Oct 6, 2010 3:05:49 PM

  20. Everyone hates the WBC since they started picketing soldier's funerals. The funerals of gay people didn't matter.

    WBC will likely win the day, and they will crow loudly about it. But eventually someone will have simply had enough, and do violence upon them, and give them the martyrdom they so desperately crave.

    Posted by: homoDM | Oct 6, 2010 3:15:27 PM

  21. How about someone accuse them of being a gang, they lose their "church" status, and if they gather back together, they get arrested for associating with known gang members?

    Posted by: Garst | Oct 6, 2010 3:24:07 PM

  22. The First Amendment is about freedom from prior restraint. It does not and never did provide freedom from consequences. Westboro has the right to express its opinions, however distasteful. But they are responsible in damages for the emotional distress that they proximately cause to other citizens by their speech.

    Posted by: Rich | Oct 6, 2010 3:35:16 PM

  23. So many US citizens wrongly believe that free speech is absolute.

    If that were the case, it would be perfectly legal to make a threat against an airplane (bomb threat). After all, it's just words, right?

    Posted by: Galore | Oct 6, 2010 3:49:33 PM

  24. "Everyone, regardless of their ideologies and voting record, will die..."

    Wouldn't the best solution, then, be to just wait until one of the Westboro crazies die, and show up at their funeral?

    Posted by: rafi | Oct 6, 2010 4:09:11 PM

  25. This case is a good test of free speech because pretty much everyone reviles Phelps & Co. and would prefer to see them permanently erased from the earth. But the WBC isn't stupid. Typically, they know exactly what the distance rules are and are careful to push their protests to the legal limit but not beyond. I won't be at all surprised if they prevail in this case, and I'm inclined to think they should. (Though, at an emotional level, I would love to see them lose and the soldier's family win.)

    They have a long history, of course, of protesting funerals, including Matthew Shepard's. The media tends to focus on the dead soldiers' funerals and downplay the homophobia at the root of Phelps's rage, as if protesting at a soldier's funeral is somehow worse than protesting at a gay person's funeral. The WBC, media savvy as they are, know that hating America's "heroes" is the best way to generate publicity.

    Posted by: Ernie | Oct 6, 2010 4:55:20 PM

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