Soldier Funeral Protests and Why I Reluctantly Side With Westboro Baptist Church

Most Americans know about the Westboro Baptist Church – it is a small cult made up of complete lowlives who protest at soldiers’ funerals – claiming that each American soldier who dies is proof that god is punishing America for its tolerance of homosexuality.

Albert Snyder, the father of slain Marine Matthew Snyder, sued Westboro for defamation, invasion of privacy and intentional infliction of emotional distress. I see where he is coming from. However, if you believe in the First Amendment, you must tolerate even this seemingly intolerable behavior.

The Baltimore Sun reports:

The case tests the limits of the First Amendment right to free speech.

U.S. District Judge Richard D. Bennett instructed jurors at the start of testimony Tuesday that the First Amendment protection of free speech has limits, including vulgar, offensive and shocking statements. Bennett said the jurors must decide “whether the defendant’s actions would be highly offensive to a reasonable person, whether they were extreme and outrageous, and whether these actions were so offensive and shocking as to not be entitled to First Amendment protection.” (source)

If the Baltimore Sun’s reporting is accurate, and Snyder prevails, the 4th Circuit Court of Appeals should reverse without question. The First Amendment has no exception for “vulgarity,” nor for “offensiveness,” nor for “shocking statements.” Either the reporter misquoted him, or Judge Bennett needs a remedial course in Constitutional Law. I find it difficult to believe that any second year law student would make such a blatantly erroneous statement – and even more difficult to believe that a sitting federal judge could.

Even without such a blatantly erroneous statement to the jury, if this case results in a Snyder victory, the 4th should overturn any award. Westboro’s conduct, while disgusting, is clearly within the protections guaranteed by the First Amendment. They are protesting on a matter of political and/or religious importance. As insane and cruel as they may be, the First Amendment applies to them too.

Let me be clear – I hate Westboro Baptist Church, and I truly hope that every member of that “congregation” catches a disease that makes their vocal cords turn to stone. Furthermore, I hate their “message” as much as anything I have ever heard. I sympathize with Mr. Snyder, and had I been present at that funeral, I likely would have marched right over to the Westboro congregation, and I would have happily gone to jail for busting their “Pastor” one right in the teeth. Not very nice of me, not very Buddhist of me, but I probably would have done it.

However, I love my country and my Constitution more than I hate Westboro Baptist Church.

If Snyder prevails, it will mean that if a political protest is deemed offensive enough, it can result in civil liability – thus creating a chilling effect and making others reluctant to exercise their legitimate right to free speech. There are costs and benefits associated with living in a free society, and tolerance of the Westboro Baptist Church’s protests is one of the costs.

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943). Under the First Amendment the government must leave to the people the evaluation of ideas. Bald or subtle, an idea is as powerful as the audience allows it to be. A belief may be pernicious — the beliefs of Nazis led to the death of millions, those of the Klan to the repression of millions. A pernicious belief may prevail. Totalitarian governments today rule much of the planet, practicing suppression of billions and spreading dogma that may enslave others. One of the things that separates our society from theirs is our absolute right to propagate opinions that the government finds wrong or even hateful.

The ideas of the Klan may be propagated. Brandenburg v. Ohio, 395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969). Communists may speak freely and run for office. DeJonge v. Oregon, 299 U.S. 353, 81 L. Ed. 278, 57 S. Ct. 255 (1937). The Nazi Party may march through a city with a large Jewish population. Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916, 99 S. Ct. 291, 58 L. Ed. 2d 264 (1978). People may criticize the President by misrepresenting his positions, and they have a right to post their misrepresentations on public property. Lebron v. Washington Metropolitan Area Transit Authority, 242 U.S. App. D.C. 215, 749 F.2d 893 (D.C. Cir. 1984) (Bork, J.). People may seek to repeal laws guaranteeing equal opportunity in employment or to revoke the constitutional amendments granting the vote to blacks and women. They may do this because “above all else, the First Amendment means that government has no power to restrict expression because of its message [or] its ideas . . . .” Police Department v. Mosley, 408 U.S. 92, 95, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972). See also Geoffrey R. Stone, Content Regulation and the First Amendment, 25 William & Mary L. Rev. 189 (1983); Paul B. Stephan, The First Amendment and Content Discrimination, 68 Va. L. Rev. 203, 233-36 (1982).

American Booksellers Ass’n. v. Hudnut, 771 F.2d 323, 328 (7th Cir. 1985)

If the Courts sustain the notion that Westboro’s actions may be a proper predicate act for the imposition of civil liability, then the government will, through its courts, have placed its imprimatur upon the censorship that Snyder (sympathetically) seeks.

That all said, I don’t think that the families of fallen soldiers are without some kind of remedy or protection. Westboro has put its idea into the marketplace of ideas, and the marketplace has roundly rejected Westboro’s hate speech. Better yet, Westboro’s actions have provoked a counter-protest group — the Patriot Guard Riders – a group of bikers who are as appalled by Westboro’s tactics and message as I am. The Patriot Riders show that the marketplace of ideas works.

Before wrapping up, I must salute my First Amendment Lawyer’s Association brother, Jonathan Katz, for his service as Westboro’s counsel. I have not yet discussed the case with Katz, but I presume that he has no more love than I do for Westboro’s message of intolerance, nor for their cruel and tasteless methods. Nevertheless, the test of your love for this country is when you will stand up for those opinions that you despise. He, like David Goldberger (the Jewish attorney who defended the Nazis in their bid to march in Skokie, Ill.) is a true patriot. Katz is protecting all of our freedom when he swallows what must be a bitter pill when he advocates on Westboro’s behalf.

Between Katz and the Patriot Riders, I think that our profound national commitment to free speech is in good hands.

18 Responses to Soldier Funeral Protests and Why I Reluctantly Side With Westboro Baptist Church

  1. Johnny says:

    I cannot conceive of a more sympathetic factual predicate for finding civil liability against a group exercising free speech and assembly rights than this example. Nonetheless, I agree that a judicially approved sanction based on the conduct of the Westboro Baptist Church members would create dangerous speech-deterring precedent. Not only do hard facts make bad law, but ignorant jury instructions empower our “peers” to allow their emotions and sympathies to govern their verdicts, despite constitutional rights for insensitive speech.

    Based on the facts, I do not believe the “extreme and outrageous conduct” element could be satisfied. Picketing a dead soldier’s funeral with signs indicating that “God hates fags”, “Thank God for Dead Soldiers”, and “Thank God for IEDs” is incredibly insensitive and moronic, but I do not think it rises to a level of intolerable offensiveness. Also crucial to the IIED analysis is the fact that this group are only using the soldier’s funerals as a PR platform. Since the picket is aimed at Americans at large, instead of the immediate members of the soldier’s family, the conduct lacks the intent requirement, although a reckless standard could be argued. Nonetheless, I think the actions are far too attenuated to warrant a finding of civil liability given the First Amendment implications.

    As in this case, the people’s answer to abhorrent speech is counter-demonstrations and physical barricades. I think it is important for others to see repugnant speech so that it can be effectively marginalized and discredited. As with university speech codes and hate crime laws, attempts to protect the masses from inflammatory speech only act to shield the masses from minority beliefs, but does nothing to challenge their claim to legitimacy. In order to maintain a healthy and robust “marketplace of ideas” it is necessary to have access to all market entrants so we can make informed speech-purchasing decisions.

  2. […] Earlier post: Soldier Funeral Protests and Why I Reluctantly Side With Westboro Baptist Church […]

  3. Beowolf says:

    I don’t understand how their actions don’t qualify as “hate speech”. Just because it’s public property, I don’t think I could legally stand near an African American’s funeral, screaming, “DIE N****RS!” (No, I don’t want to. Just an example). Can you explain how this is different? The way I understood our rights, we have the right to express our opinions, but if the means of expression damages others (screaming “FIRE” in a theatre), we’re liable for those damages. Am I wrong or out-of-date in that? Thanks.

    I think that their speech would properly be called “hate speech.” However, that does not strip it of constitutional protection. Your hypothetical is good food for thought… if you stood NEAR an African American’s funeral screaming that, you would be disturbing the peace (perhaps), or committing disorderly conduct (perhaps).

    In the Westboro case, they were 1000 feet from the funeral.

    Don’t throw the baby out with the bath water. You can hate Westboro’s speech and still love the Constitution. The Patriot Guard Riders have the right idea when it comes to fighting Westboro’s reprehensible tactics.


    Beowolf | | IP:

    Thanks for the reply. I completely missed the “1000 feet away” issue, and agree that makes a huge difference. I don’t like where that train of thought takes me though, any more than you seem to.

    Nov 1, 12:15 PM — [ Edit | Delete | Unapprove | Approve | Spam

  4. Tom says:

    We in Kansas City have been dealing with Fred Phelps for well over ten years when he began picketing funerals of gay men who died of AIDS and also picketing the local gay pride parade as well as any other event which could remotely be connected to the “fags.” Even though I am gay, I place great value in the speech that I find so offensive in that my experience here is that the message is so extreme that it forces people who would not otherwise get involved, the fence sitters, to get off the fence and take a stand against hatred of homosexuals. I learned this lesson one night watching the Phelps clan picketing a local church and saw middle class middle aged suburban people so enraged that they were stopping their cars in the middle of the road, getting out of their cars, screaming and yelling to the point of near violance such that the police had to intervene several times. I doubt that any of those people would have otherwise given much thought to the issue, if at all. That was my lesson in the how and why of the First Amendment, and I just thought I would share my perspective with you.

    Your perspective is a beautiful illustration of why the First Amendment should protect even these foul people. The cure for bad speech is good speech, not suppression of the bad speech. Thanks for your comment.


  5. Duane Shaw says:

    good god people, get a grip. since when does the first ammendment protect free speech that is 1 hurtful 2 untrue and 3 libelous? is that what myself and most of the men in my family have served to protect? have you ever seen this crazy yes CRAZY group in action. well I have on several occasions since i travel through Topeka on a regular basis , and i will tell you their tactics and seething hatred is not to be protected. i don’t say this lightly since i am an ACLU loving, liberal, old guy that still believes that all we need is LOVE. this group is pathologicly antisocial and craving attention by any disturbed means possible. to try defending them on the basis of the first ammend. is very distubing to me. imho

  6. […] UPDATE: A much smarter man than I agrees with me. Professor Marc J. Randazza […]

  7. Chris says:

    This is ridiculous. All freedoms granted by the Constitution are up to judicial interpretation. That’s the whole point of a Judicial Branch. Otherwise we would just have hard and fast rules. And in this case, a wise judge would weigh the cost of free speech over what is essentially emotional and religious terrorism. Any constitutional scholar ought to know, rights do not come at the expense of other peoples rights. If your “pursuit of happiness” and “right to free speech” intrinsically infringes upon another person’s rights, then it is not valid.

    Furthermore, saying this is not intolerable is beside the point. Just because someone can endure it does not mean that their rights are NOT being stampeded. These people spread propaganda, hate speech, and lies, go out of their way to harass, and expose children to representations of the very vulgarities they claim to abhor.

  8. blevinsj says:

    What if OFFENSIVENESS was the test for First Amendment protection? Would this case be different? NO…there is no test for offensiveness. The trial would be a contest of the evidence. Each side would bring people to give personal opinions about offensiveness. Offensiveness is a purely personal point of view. While most view the Church’s speech as “offensive,” at least the Church does not endorse this opinion. Further, what if this case occurred in 1946? Most people would, sadly, support the ultimate premise of the Church…maybe not the American losing part, but probably the fag part. It is a far scarier America where individuals are allowed to decide what is protected by the First Amendment against a crime of offensiveness. See The Red Scare and Sen. McCarthy.

    The test for obscenity is not valid against the Church. Miller obscenity is the most analogous to “offensiveness.” Though the Court found obscenity to be unprotected, it rarely found speech unprotected under this doctrine. The foundational principle is that it is better to have “bad” speech included with “good” speech in order to clearly define truth. How do you gauge evil? How do you know what is obscene? Without the darkness there is not light. No one knows they live in the cave until the boulder is removed. Without the broad protection of First Amendment free speech we would be watching shadow puppets on the wall, convinced it was reality. See Plato & Socrate’s Cave paroble.

    Frisby v. Schultz is applicable in this case. It is true that one cannot invoke individual rights to the exclusion of the rights of another. The privacy rights are at issue at the funeral. However, privacy is protected under the statute in question. The protestors are 1000ft away. The funeral is outside. The funeral proceeds on traditional public fora. All of these factors weigh againt the privacy or captivity issues. One cannot get full protection for speech because it is popular, while the fringe is left out. This would be antithetical to the purpose of the First Amendment.

    What if the popular sentiment regarding soldiers completely deteriorates? What if the popular sentiment reverses and the funerals are deemed “protests?” Those on the soldier’s side would reverse course quickly. You cannot defend or deter free speech based on the current course of the court of public opinion. The scope of Free Speech would be so narrow it would implode. Just ignore the Church. It is beyond doubt that most people do NOT support the Church…so why make it a big deal? Why not snuff out all fringe groups and points of view?

    Please keep the fallout in mind. More speech is always better than less speech. I do not want you deciding what I can say or think.

  9. […] As an American, I hope that Westboro wins its appeal. See Soldier Funeral Protests and Why I Reluctantly Side With Westboro Baptist Church. […]

  10. Beowolf says:

    Thanks for the reply. I completely missed the “1000 feet away” issue, and agree that makes a huge difference. I don’t like where that train of thought takes me though, any more than you seem to.

  11. Paul D says:

    I don’t completely agree that the picket is aimed only at America at large. Though they certainly have a national agenda that is served by the media exposure, at the time they are picketing they are directly targeting the grieving family members. From that, I believe invasion of privacy has legs.

    However, what I find more troubling are the facts that a) they were 1000 feet away, b) the father didn’t actually see or hear them at the funeral, and c) he only found their abominable website after looking for it. I’m sure he’s hurt by this unforgivable conduct – the Phelps are true monsters in my opinion – but to me that seriously weakens the invasion of privacy argument.

    Had they directly intruded on the funeral and caused distress to family members at the ceremony (as they have in the past), I think the case would be much stronger. This was the wrong incident to sustain a win I’m afraid.

  12. […] “God Hates Fags” Case Update I earlier blogged on the “God Hates Fags” case here: Soldier Funeral Protests and Why I Reluctantly Side With Westboro Baptist Church. […]

  13. self says:

    go fuck yourself. yes, that might be a ridiculous and simple thing to say but it’s oh so right in this case.

    even if there are some things in the constitution that might apply to these low lives… who gives a damn? they are definitely overstepping some large boundaries and it’s time that religion shouldn’t be enough of an excuse.

    we don’t have to respect their inane illusions (or anyone elses)
    i hope more people sue these disgusting and pathetic people… please rob them of all they’re worth until they’re forced to live on the streets and die there.

    they don’t deserve any respect. NONE.

  14. […] it nicely) the actions of those involved with the WBC (see here, here, here, here for examples) and especially here. As the church’s attorney, Phelps-Roper routinely defends the WBC’s beliefs/actions in the […]

  15. al snyder says:

    You know nothing about this lawsuite, Iam the father of Matthew Snyder, this lawsuite was not just about 7 people showing up to protest it was about the harrasment before and after the funeral, do your research before you spew you opinion. Thanks Al Snyder

    • Al,

      I have read the entire case file. I can respect your sense of grief, and your sense of outrage. I too am outraged at Westboro’s actions. Mr. Phelps deserves to have the crap kicked out of him. But, the way you went about doing it has implications beyond this one incident. Your son took an oath to uphold and defend the Constitution against all enemies, foreign and domestic.

      When he took that oath, he may not have known it, but he was taking an oath that meant standing up even for Westboro’s *legal rights* — that’s a big difference from saying that what Westboro did was *right*.

      I am sorry for your loss, and I am sorry that Westboro’s members did this to you.

  16. […] of the Supreme Court Cert. granted in Snyder v. Phelps. Regular readers already know that I reluctantly side with Westboro on this […]

  17. […] Great Editorial on Snyder v. Phelps I have written a lot on the Snyder v. Phelps case since my first post on it, here. […]

%d bloggers like this: