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

"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?


  1. Rich says

    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

  2. Tug says

    “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.

  3. Andrew K says

    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.

  4. jtaskw says

    “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.

  5. Steve says

    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.

  6. LiamB says

    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.

  7. Darren says

    *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?

  8. Butch says

    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.

  9. jerry says

    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.

  10. Dego says

    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.”

  11. Paul R says

    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.

  12. dws3665 says

    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.

  13. TANK says

    ‘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!

  14. says

    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.

  15. kansastock says

    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.

  16. Randy says

    @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.

  17. Hawthorne says

    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.

  18. spiderseye says

    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.

  19. johnny says

    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.

  20. homoDM says

    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.

  21. Garst says

    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?

  22. Rich says

    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.

  23. Galore says

    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?

  24. rafi says

    “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?

  25. says

    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.

  26. Zlick says

    To the contrary, this is a poor test case. In this instance, the WBC were kept miles from the funeral and never protested anywhere near the cemetery, and the mourners were warned so far in advance that they re-routed the funeral procession away from them. Not a single mourner encountered the protests on the day of the funeral.

    Snyder sued based upon just knowing about the protests, and seeing news coverage about it, and facebook postings by WBC members afterwards.

    Hardly the perfect test case in my mind, and I find it hard to believe this is the one finally getting to the Supreme Court.

    In any event, it’s long been common to have “protest pens” for political protest, far from the desired audience for the protest free speech. So certainly location restrictions are legal, apart from the content of the message. I’d like to test the constitutionality of that. It seems absurd to protest the president, for example, miles away for where he would ever be able to see it.

  27. says

    You’re right, ZLICK. From a legal standpoint, I was actually surprised the SC took it up. I meant that it is a good case in the sense that virtually no one approves of the Phelps’s speech, so the discussion (outside the court) can be about the right to and limits on free speech rather than on the content of the speech. But that doesn’t make it the best case for the SC to take up since the Snyder’s case seems weak to my admittedly non-lawyerly mind.

  28. Keith says

    I’m not a consitutional lawyer, but in this debate the real issue is what and how the word “harm” is defined. Courts look very closely at what harm free speech is inflicted, and typically emotional distress is not supported as a “harm” when it comes to 1st Amendment rights. Otherwise, we could all sue the religious conservatives and priests who have said “Death to Gays” or that our behavior needs to be eradicated, as it causes us all emotional distress and harm in many different forms (just look at the spate of recent suicides). IMHO, the father will lose this case because even though the speech is vile and dispicable, it is fundamental to our constitutional rights in a democracy. On a side note, back in the 1980s the WBC protested at gay funerals in the same manner, and I don’t ever recall a single heterosexual coming to our defense or speaking out against this dispicable behavior at this time. Now, perhaps, they will understand what we have endured for decades in this country due to religious oppression.

  29. anon says

    Well, they finally got their day in court, which is what they really wanted. The problem here is that you can’t slander the dead. The soldier they criticized at the funeral would not have grounds to sue, so the family went the emotional distress route. Trouble is that the claim of emotional distress is typically tied to another tort, such as physical harm. Like, when someone gets raped, they can also sue for emotional distress. Emotional distress is not typically a tort for when speech is involved unless it falls in with slander/defamation/libel. So, without grounds for slander/defamation/libel, the family had to pursue a speech case on ED alone. Were this to pass then all media outlets would be subject to litigation on ED grounds alone, even if they make claims against a third party (unrelated party). This would be an exception to the heckler’s veto prohibition in speech law. Essentially, it would end all speech rights at once. Even an extremely narrow ruling would result in a flood of test case litigation.

  30. walter says

    the sooner we get to dance at fred funeral the better it should be a grand occassui complete with dykes on bikes and dozens of drag queens in all their fabulousness leather men in their jocks and parade with everyone who fred has hounded. and i for one wouldn’t mind pissing on his grave

  31. nicholasg says

    Free speech? Free hate more like…

    These nut jobs were going to come to Australia a while back, but their visa’s were declined and they were politely told to bugger off. Isn’t it about time they started hearing NO and started paying the price for their hate. They seem to get away with all their stunts and all the encouraging and well organised counter attacks do absolutely nothing. They are oblivious to any other words.

    I know your 1st amendment is one of your most important, but really…these people are sick fuckers. It’s only a matter of time before one of them picks up a gun and goes postal!

  32. says

    A bit information for those who do not know: “the Westboro Baptist Church (WBC) is an independent Baptist church known for its extreme stance against homosexuality and its protest activities, which include picketing funerals and desecrating the American flag. The church is widely described as a hate group and is monitored as such by the Anti-Defamation League and Southern Poverty Law Center. It is headed by Fred Phelps and consists mostly of members of his large family; in 2007, it had 71 members.The church is headquartered in a residential neighborhood on the west side of Topeka about three miles west of the Kansas State Capitol at 3701 West 12th Street, Topeka, Kansas, United States. Its first public service was held on the afternoon of Sunday, November 27, 1955.”

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