The inconvenient thing about the First Amendment is that it applies to everyone. The freedom of speech, press and peaceable assembly doesn't just belong to us and the people we like. It's also for the people we disagree with. And for the people who offend us. It's even there for the people who we just wish would shut up and disappear.
In Westminster, Md., there is a debate over whether or not the First Amendment can protect the rights of the congregation of the Westboro Baptist Church. Under the leadership of Pastor Fred Phelps, the Topeka, Kan. church has spent years demonstrating at the funerals of American soldiers killed in Iraq, carrying signs bearing slogans such as “Thank God for Dead Soldiers.” According to Phelps, the Iraq War—as well as 9/11, Hurricane Katrina, and AIDS—is God's punishment for America's tolerance of homosexuality.
In response to Phelps and his followers, at least 32 states have proposed or enacted laws to limit the rights of protesters at funerals. The American Civil Liberties Union has responded with legal action in some states, arguing that these legislations are unconstitutional. Proponents of the laws say they protect the privacy of grieving families. Opponents say mourners have no reasonable expectation of privacy in a public place, and that the laws are so vague that they could prevent other forms of free speech. Some argue that the laws are crafted specifically to stifle Westboro's message, which encroaches on their freedom of religion.
On Oct. 31 of this year, the father of a fallen soldier won a lawsuit against Phelps, his family, and Westboro Baptist Church. A federal jury awarded Albert Snyder, father of Lance Cpl. Matthew Snyder, $10.9 million for invasion of privacy and emotional distress. It marks the first time anyone has won a lawsuit against Westboro. Members of the church have stated that they will appeal the decision, and that they will continue picketing funerals.
When I learned about this case in Peggy Watt's Mass Media Law class, I took it as good news. When Watt put forth the idea that the ruling might be found to be unconstitutional, I didn't want to listen. Who cares about constitutional rights for people like these? What reason could there possibly be to defend their right to picket funerals?
In the film “The People vs. Larry Flynt,” Woody Harrelson, portraying the titular character, said it succinctly: “If the First Amendment will protect a scumbag like me, it will protect all of you.” Phelps' sermon is repugnant to me in every way. Navigating Westboro Baptist Church's Web site is almost physically painful. But, if we don't protect Phelps' First Amendment rights, we're not protecting our own.
The “slippery slope” argument may seem far-fetched in this case, but it does hold water. It's hard to prove that the Westboro demonstrators were doing anything against the law. The demonstration took place about 1,000 feet from the church in which the funeral was held, which makes it hard to prove that it was an invasion of privacy. Although the slogans on their signs may have been offensive, they did not attack Snyder personally. Furthermore, the demonstration was not a serious threat to incite violence. This leaves us with little reason to prove why the church should lose the lawsuit other than that their message is offensive.
Westboro Baptist Church may make us nauseous, but that's not a good enough reason for them to be silenced. As Justice William Brennan Jr. put it, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” For example, no matter how much I disagree with the anti-abortion demonstration Genocide Awareness Project, they have a legal right to express themselves in Red Square, because it is a public place and they are not inciting violence. Fortunately, that same right protects groups like the Radical Cheerleaders when they counter-demonstrate.
As offensive as Phelps' message is, it does us no good to try to silence it. His concepts are so absurd that it's almost redundant to tear them apart. The idea that homosexuality is the singular cause of earthquakes, hurricanes, viruses, wars and terrorist attacks is brainless. Followers of this ideology can chalk up any disaster, no matter how unique or unpreventable, as evidence supporting their cause. A child could find the fault in this argument.
If we take on Phelps with lawsuits and legislation, we will be giving him what he wants. He will gain greater national attention as a champion of free speech. But, if we let Phelps tout his ridiculous doctrine all over the country, he will be just another tiny voice in the marketplace of ideas.