Why The 1st Amendment Doesn’t Protect Westboro Baptist Church

July 3, 2010

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[Update: on March 2, The Supreme Court ruled 8-1 in favor of Phelphs (Westboro’s pastor).  This particular article was written in July of 2010.  An article relating to the SCOTUS ruling will appear on The Soap Boxers in the coming days.]

The Westboro Baptist Church (which has no ties to mainstream Baptist churches) is an organization which spends its time spreading hatred.  The group has gained much of their notoriety for protesting at the funerals of soldiers who have died fighting for their country.  The protesters carry anti-gay signs, which tends to cause a bit of confusion.  A while ago, my wife asked me what the connecion was – since the soldiers, in almost every circumstance, are NOT gay.

Her mistake was trying to apply logic to a situation where none exists.  WBC claims that dead soldiers are God’s punishment for the country’s tolerance of gays.  As someone who is a proponent of equal rights for all, the assertion that the US is tolerant of gays seems to be not particularly accurate.  Certainly, we are not as tolerant as many of our European allies.

This issue has caused me quite a lot of internal conflict.  I am a firm believer that free speech is a very important personal freedom.  However, I also believe that one person’s expression of free speech should not infringe on the rights of another.  While the right to mourn in peace is not granted by the Constitution, it IS granted by the concept of “being a human being.”

I have even gone so far as to wonder if perhaps the 1st Amendment was in need of some revision.  While I believe that the Constitution is a very important document, I also believe that the founders would have wanted this to be more of a “living” document than it has become.  What’s my evidence of this?  The fact that they made ten changes (The Bill of Rights) before the ink was even dry.  223 years later, the total number of amendments stands at just 27 (and the purpose of the 21st was simply to repeal the 18th).

After a bit of searching, I now realize that we don’t need to change the constitution to prevent hate mongers from using it as a shield for their speech.  There is already a restriction in place.  In 1942, in the case of Chaplinsky vs. New Hampshire, the United Stated Supreme court unanimously ruled that this sort of speech is not protected.

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting words” those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

I couldn’t have said it better myself.

Chaplinksy is going to get another test soon.  WBC protestors were present at the 2006 funeral of Marine Lance Corporal Matthew A. Snyder.  Three months after the funeral, the family sued for defamation, invasion of privacy, and intentional infliction of emotional distress.  A jury ruled against WBC and awarded $10.9 million in damages.  In 2009, an appeals court ruled that the WBC’s action were protected by the first amendment and ordered the plaintiff (the dead soldier’s father) to pay WBC’s attorney fees ($16,000).

Not surprisingly, many people have lined up behind the Snyder family.  Political commentator Bill O’Reilly has offered to pick up the tab, and thousands of others have pledge donations.

The US Supreme Court has granted certiorari to the case of Snyder vs. Phelps (Fred Phelps is the head of WBC) and the case will be on the docket when the Court convenes in the fall.

The list of people filing amicus (“friends of the court”) briefs is a who’s who of political bigwigs, including 43 US Senators and the Attorneys General of all but two states (Maine and Virginia).  It is my hope that the Court will rule in favor of the Snyder family and further clarify and reinforce the thoughts first addressed by Chaplinsky.

While we wait for the decision of the Court, the Patriot Guard Riders are not standing idly by.  Members of this motorcycle organization gather at the funerals of veterans (at the request of the family) and rev their engines in an effort to drown out the protestors.

5 Comments (+add yours?)

  1. Martin Kelly
    Jul 07, 2010 @ 23:29:55

    Kosmo, you may not realize it, but Phelps’ daughters are lawyers. In several cases in the past, the have actually made money on the counter suites and on the breach of 1st amendment rights suites that they have brought against cities. That is the main reason that local police do not interfere with their protests, even if they fail to get the correct permits.

    I would personally like to see the court rule based on the harm done rather than Chaplinsky. The Chaplinsky ruling was an unfortunate extension of government authority during a war. There are too many loud people on all side of the political spectrum who would use this to silence their opponents.

    I really like the Riders’ response. Effective, legal, and voluntary.


  2. kosmo
    Jul 08, 2010 @ 08:47:02

    Yep, I’m aware of the Phelps lawyers.

    I don’t necessarily mean to suggest that the justices should say that Chaplinsky was 100% accurate and is the exact precedent for this case, just that it would be used as a springboard to allow the court to clarify what content can lawfully be excluded from protection under the 1st amendment.

    While there is bound to be some gray area, I’m confident that a distinction can be draw between bona fide political rhetoric and hate speech. “God Hates Fags” (something that has been on some Westboro signs at protests) is clearly not an attempt to engage in meaningful political debate.


  3. Squeaky
    Jul 08, 2010 @ 10:17:35

    The Libertarian in me says that we don’t want to keep someone from having any of their freedoms, but the human being and compassionate side of me says that these animals (WBC) have no right to disrupt a family’s mourning. For me, seeing signs and protests at the funeral of a member of my family would certainly invoke anger and probably legal trouble for myself. The reference to “fighting words” in Chaplinsky is exactly what I think about. Words like these during a religious event would definitely bring me to one of my lowest moments in life. I’m not sure that I would be able to control myself as others have done.

    Based on that, I can’t see how the judicial system could not apply Chaplinsky to a funeral. I agree that the WBC protests do not invoke any positive political debate and I fail to see how this is relevant expression of their view point. Thank goodness for the Patriot Guard Riders.


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