Thursday, November 01, 2007

Funeral Protests and Free Speech

A jury in Maryland yesterday punished the Westboro Baptist Church to the tune of $11 million for protesting at the funeral of an American soldier that America’s tolerance of homosexuality is responsible for the death of its soldiers. This verdict is a violation of the right to freedom of speech, and is an illegitimate use of government power.

Let us pass a law that allows people to express a particular opinion without fear of punishment. However, this law also states that the speaker must stand in a sound-proof booth with the door closed, and is only permitted to speak when he is alone in the room. It would be absurd to say that this law protects the essence of the right to freedom of speech merely because the agent is permitted to utter the words – if it prohibits him from uttering those words in a manner in which others might hear them.

The Bush Administration makes a mockery of freedom of speech when it sets up what it jokingly refers to as ‘free speech zones’ at Presidential appearances – gated areas far away from the cameras and the President’s view where people can say things that the President would not like. In fact, calling these places ‘free speech zones’ is entirely accurate, because it is only within the zone that the freedom of speech exists. Whereas, outside the zone, the moral concept of ‘freedom of speech’ is being mocked and ridiculed by an administration that symbolically and physically puts fences around it.

The verdict against the Westboro Baptist Church is simply another application of the concept of ‘freedom of speech’ as the President and his administration understands it. This, too, is a message that one may speak freely, but only at a time and place where they can be easily ignored, and where their voice will reach as few people as possible.

One of the facts about the Westboro Baptist Church is that they were able to substantially increase the size of their audience precisely because they hold these protests at the funerals of American soldiers. A part of the reason why they are being sued is because they spoke in manner in which they were heard by people who did not want to hear what they had to say.

In fact, a part of the verdict rendered against the Church ($2 million) was for ‘emotional distress’. There is no sense to be made that the Church caused emotional distress other than because of the content of that speech – because they were saying something that displeased other people. If we allow it to stand that speech is prohibited when its content ‘distresses’ others, then there shall be no right to freedom of speech, because there is no such thing as content that does not distress others.

We can see further evidence of the fact that this speech is being punished because of its content by noting that if the family had been met with a crowd of the same size making the same amount of noise, but conveying a different message (one that honored and praised their son for his sacrifice), the family would likely not have filed a protest. This case is not like one in which a person complains about a neighbor’s loud music late at night – a complaint based on the neighbor’s interference with one’s sleep and not on the content of the music. This is a case of a family saying, “I do not like your message; therefore, I shall bring the power of the state against you to prohibit you from speaking in a manner in which I might hear you.”

Now, saying that this verdict is a violation of free speech is not to say that the Phelps family is immune from any sort of criticism – that the family (and those who have sympathy for the family) must bite their lip and say nothing against them. It is as much a violation to free speech to ban those who condemn the protesters as it would be to ban those who protest America’s ‘acceptance’ of homosexuality.

The right to freedom of speech is not a right to be free of condemnation for what one says or in the manner in which one says it. The right to freedom of speech is a right to be free from violence (whether in the form of private violence or government censorship) for what one says or the manner in which one says it. This civil suit against the Westboro Baptist Church crosses the line between legitimate protest (in the form of words and private actions) and illegitimate protest (violence in the form of government action) against the words of another.

In this country, we have an unfortunate tradition of holding that if a view is a religious view that we must not only refrain from using government force against the members of that religion, but we must not criticize it. Representatives of the Westboro Baptist Church have been able to buy a certain degree of legitimacy – or, at least, immunity from criticism for their beliefs – by asserting that those beliefs are religious.

Hopefully, the era in which religious attitudes were held to be immune from criticism merely because they are religious is coming to an end. In fact, if we wanted a poster child for the legitimacy of condemning religious attitudes, the Westboro Baptist Church provides an excellent example for all of us. Here are people who clearly deserve to be condemned, and for whom the defense, “Ours is a religious belief,” is entirely irrelevant.

Still, nobody is denying them the right to peacefully practicing their religion. Freedom of religion, like freedom of speech, does not imply immunity from criticism. It only implies an immunity from private or government violence – except in self-defense.

The right to freedom of speech means nothing unless it is granted to people who say things that (others think) is worthy of condemnation. It is a flat contradiction to assert that freedom of speech exists where one must first submit the content of their speech to a review board who will determine first whether the speech might cause ‘emotional distress’ to others who might come across it.

In fact, the Westboro Baptist Church is deserving of the harshest condemnation in the form of words and private action against their speech. Not only should they be condemned for the absurd belief that the intolerance of homosexuality in American can influence a God to alter the course of a bullet in Iraq to take an American lives, not only are they to be condemned to wanting American soldiers killed, but they are to be condemned for refusing to respect the solemn occasion of a funeral.

Indeed, this condemnation and private action should be more vocal than it has been. Those who are interested in protecting the funerals from this type of invasion should have taken up the challenge long ago of protesting this group itself, condemning the group and any who aid them in their cause – their financial backers, and any who do business with them where that business contributes to the success of their mission. This is a case where refusing to protest, condemn, and take private action against this Church can itself be made reason for condemnation. So, the other Baptist churches in Kansas, for example, should be pressured to bring words and private actions to bear against this church, and be condemned for refusing to do so.


DaVinci said...

It is also good to remember that this was a civil trial, not a criminal trial. So no civil rights were violated, no one was imprisoned. They had a chance to make their case, and I dont think its is so much about trying to take anyone's rights away, it was rather holding someone accountable for practicing public hate, not to mention my personal satisfaction over the high price of being an idiot.

Alonzo Fyfe said...


Civil trials are like criminal trials in one respect - in being backed by state violence against those who do not obey.

Let the defendents refuse to pay, and that will be a criminal violation.

Thesauros said...

Hmmm. The emphasis on freedom of speech in the States is so different than here in Canada, yet I don’t think we are hindered in what we say any more than you guys. In fact we might have even more leeway in what we say and where we say it. Nevertheless, too bad the fine wasn’t 11 billion.

Why can’t they be prosecuted under a “hate crimes” law?

Anonymous said...

I haven't fully thought this out, but I'm going to try to offer a devils-advocate view.

In principle, I agree with everything you say. However, it seems unrealistic upon reflection, much like a libertarian “unregulated free markets will solve everything” ideal.

These people are fueled by passionate hatred. They don’t have anything better to do with their time, and funding is readily available. Regular people have jobs they need to work at and other demands on their time. Identifying every member of this church, as well as their funders, and then distributing this information to everyone concerned would be an epic undertaking. Is everyone who may come into contact with these people supposed to keep a binder full of names & pictures by them at all times?

Moreover, not doing business with them or their funders may be completely unrealistic. If you’re a consumer-goods manufacturer, you must deal with Wal-Mart or go bankrupt, regardless of how you feel about them (just an example, I’m not saying Wal-Mart supports this group). Conversely, if every provider of food in that region refused to sell to the church members, wouldn’t that be an even greater evil?

The state can act on behalf of the populace when such wide-scale condemnation reaches the point of practical impossibility, can’t it? To label them as guilty of contemptible conduct in a court, and fine them a heavy amount, would work in a similar fashion to private condemnation, and would save thousands of man-hours of effort which would have little effect.

Obviously, this could lead to the soundproof-booth “freedom” you mention, but this seems like a slippery slope argument to me. A sensible, civil society can see the difference between vile hate speech and permitted protest, can’t it? We already censor a lot of speech on public lands. People are not permitted to walk about town in the nude, for example. Which is more damaging to children/society? Being exposed to a nude man/woman, or this sort of hate-peddling?

Kevin said...

I haven't paid much attention to the story, but I'd like to ask a simple question instead of digging up the information myself. Was the funeral a public event, or a private funeral? Freedom of speech stops at the line of another's private ownership. In the public square, anyone can say anything, and on one's own property, one has a right to such usage of that property. However, one does not have a right, nor should one expect to have a right, to invade someone else's space and say whatever one likes. To do so is to do violence against their right of their private control and freedom of choice. So if the funeral was some kind of public event, I might agree that the Phelps, bastards that they are, have the right to speak such things there. However, if this was a private funeral, they don't have such a right.

I say might in regards to a public funeral because there's a notable difference between dictating a whitelist of permissible venues for speech as opposed to dictating a blacklist of places not permissible for speech. To say protesting at a funeral isn't acceptable isn't the same thing as saying only protesting in a sound-proof box is acceptable. I'll have to give it further consideration before I can really pick a side, but I can see a justifiable case possibly being made for forbidding attacking the dead at their own funerals, especially since, to a degree, they're forcing people to listen to their message. Freedom of speech must be linked with the freedom to choose to not listen to such speech. It's not like funerals are the only venue the Phelps can make such statements. They can make the same claims by holding rallies in cities, buying advertisements, or any other number of means with a fair opportunity for an audience. Protesting at a funeral to me seems like a pretty easy case of violating the funeral-goers' freedom of choice.

Caz said...

This case isn't about "freedom of speech" or "freedom of protest" or any other type of freedom.

Unless you want to get into the freedom to conduct a family funeral, to bury a son, with love and dignity, safe in the knowledge that a pack of hate fueled extremists won't intrude on your private grief.

Hey, do they take their hate marches to weddings and children's parties too?

Come on, get a grip.

This was a despicable and low act.

I can only guess that you're defending their freedom to be vile examples the human species. That's fine, except there aren't any laws to cover hideous people, neither for nor against.

Alonzo Fyfe said...


The funeral was a private funeral. However, the protest took place on a public street en route to the funeral location. Some of the attendees passed by the protesters, others did not. The father, in fact, did not see the protesters, but read about the event in the papers and was told about it by some of the other attendees.


I am not denying that this was a despicable and low act. However, there is no such thing as a 'right' to do something if doing it requires somebody else's permission first. This is like a slave master saying, "All my slaves are perfectly free - as long as they do what they are told."


One does not require the type of effort that you are talking about. What I am talking about is the same type of effort put forth against the KKK and Nazi Party. A couple of years ago I wrote about the KKK holding a march through a Jewish neighborhood in Toledo. I applied the same principles. On what principle would you argue against attempts to ban an Atheist meeting on the basis that 'militant' atheists are preaching hatred of Christians and exposing children to atheism is harmful - particularly since it risks their salvation in the afterlife?

Ron Hager said...

Alonzo, your initial comment "This verdict is a violation of the right to freedom of speech, and is an illegitimate use of government power." is absolutely incorrect in so many ways. I am not an attorney and perhaps a really good one could correct me, but here is why I challenge your comment……

1) Perhaps you and I live in different universes, but in this universe, and in this country, jury trials and their resultant verdicts are not only legal, but also historically are a central part of our nation’s judicial system.

2) No branch of the government brought about this trial and consequently your statement about the illegitimate use of governmental power is more than just inaccurate it is absolutely false. Furthermore, no branch of the government could or should have suppressed this trial or any other between two parties.

3) I doubt that you were at the trial and I doubt that you saw the evidence presented to the jury. But if you have evidence that the jury was falsely selected, planted by the litigant or for some other reason their findings are tainted you should immediately present your evidence to the appropriate judicial authority. Notice that I said judicial authority and not the government you accuse.

4) While the initial trial is over, you must certainly be aware that the appeals process is not over.

5) Free Speech is not always free. Exercising any of our rights frequently puts us at odds with other citizens. When that occurs, it is the judicial system that has to try and sort out the issue. The members of this church perhaps believed that they were exercising their right to free speech, but because of the uproar associated with their past protests, they had to be well aware of the possible consequences. On the other hand, the deceased soldier’s family was also exercising their right when they sued the church. The jury sorted out the issue based on the evidence and the arguments that were presented at the trial. You might not care for their verdict, for whatever reason I cannot fathom, but you might want to caution others from attempting similar protests.

Kevin said...

Ahh, k. In light of that I find myself in agreement with you. It's a despicable act, but they were within their rights, assuming they weren't obstructing anyone en route to the funeral.

As far as using typical motivators to modify their behavior, I doubt it would be successful. The best thing to do is stop giving them any kind of publicity and ignoring them. They don't care what their fellow humans think about their behavior, and putting them in the news just gives them a free platform from which to spew their hate. They feel themselves messengers of God declaring the doom that is to fall upon us for our "sins." Any disapproval of their message on our part is confirmation in their minds that everything is exactly as they say. It's difficult, mostly for those targeted by the protests, but the best option I see is to ignore them and make their actions of no concern to us ("us" being we that disagree with their message, upon whom they have declared doom by the hand of God). They strike me as the in-flesh equivalent of an internet troll. I say they should be starved of attention and given no assistance by society at large in spreading their hate. I do wonder if such an effort can be reasonably expected to be effected.

@Crater Lake Hermit

"1) Perhaps you and I live in different universes, but in this universe, and in this country, jury trials and their resultant verdicts are not only legal, but also historically are a central part of our nation’s judicial system."

There's a false premise here*. Your statement would hold true in this case if jury decisions overrode the Constitution. However, the Constitution is the supreme law of the land. Any decision that is in contradiction to the Constitution is not legal. The major function of the Supreme Court of the United States is to evaluate legal statements to make sure they jive with the Constitution. Any such statement that fails to do so is struck down and carries no legal weight.

* On the other hand, perhaps you are not a citizen of the US and you're assuming the US system is similar to yours (at least in that respect), in which case your premise may be true, but it isn't relevant to this discussion.

Caz said...

You've moved right away from your argument about freedom of speech into the arena of competing rights.

Rights aren't unfettered, even in the US, and conflicting rights must often be reconciled. It will ever be thus.

"However, there is no such thing as a 'right' to do something if doing it requires somebody else's permission first. This is like a slave master saying, "All my slaves are perfectly free - as long as they do what they are told."

I don't understand the argument, most particularly not in relation to the case, nor even in relation to the free speech point of view.

Masters and slaves?

A bit hyperbolic, within the context.

Just sayin'.

Actually, there are thousands of things that we have the "right" to do, but effectively have to seek, or wait for "permission" first, whether it's crossing a road at lights, or getting onto a plane, or waiting our turn in a queue to to pay for groceries, or a pile of porn magazines.

Life is full of such "permissions". It's an aspect of civility.

But, as I said, I don't see how this is especially pertinent to the case at hand.

Well, other than that the protesters were decidedly thoughtless and uncivil in their actions.

anticant said...

There is no free speech if my utterances are prohibited because you say they offend you, or hurt your feelings. Because I believe that free speech is the basic freedom which underpins all others, I accept that I shall on occasion be insulted, offended, and experience hurt feelings. That is the price we all have to pay for freedom.

The growing tendency today to curb free speech and so-called 'hate speech' through legislation and litigation is the harbinger of fascism.

The Phelps family are utterly detestable - and, it would appear, immoral and probably illegal too - but their right to say what they believe, however crazy, is surely no less than yours or mine.

Jarrod said...

Civil trials are only viable if the injury or offense is legislated; in other words, if a legislature has made a law against it. If in fact the jury made the correct decision then the conduct of the WBC was against some law. Unless the plaintiff was alleging something like trespass or assault, they can have no viable case because otherwise they are complaining about the content of the speech in question. The absolute core of the First Amendment is that the content of speech (though not necessarily other aspects) is always protected. Whether the penalty is paid to the government or to the plaintiff, it will be enforced by the government.

Thus we have government force being used to assess a penalty established by a government law against an action supposedly protected against government interference. Hence the objection.

Anonymous said...

I see your points. I guess I let my emotions cloud my judgement. I just wish there was more direct action we could take against these sorts of wastes of oxygen.