Westboro Baptist Church: Even Assholes Get Free Speech

Let me preface this blog entry by a full disclosure of my biases. I fucking hate the Westboro Baptist Church. It is an institution based entirely on hate, prejudice, and frankly unchristian values. What happened to turning the other cheek, loving the sinner and not the sin, and remembering that only God can pass judgement? I’m Jewish, but I don’t hate all Christians, I just hate this guy.

That said I’m also a firm proponent of constitutional law, and the constitutional rights of the individual. Whether I agree with your speech, your religion, or your lifestyle or not, I do not think the government should have the power to punish, reward, or regulate the beliefs of any individual. When government starts controlling speech or thought, you have paved the way for a totalitarian state that doesn’t respect what the founding fathers believed were inalienable human rights.

So, you full disclosure aside, here’s the story from the Associated Press:

“The Supreme Court is getting involved in the legal fight over the anti-gay protesters who show up at military funerals with inflammatory messages like “Thank God for dead soldiers.”

The court agreed Monday to consider whether the protesters’ message, no matter how provocative and upsetting, is protected by the First Amendment. Members of a Kansas-based church have picketed military funerals to spread their belief that U.S. deaths in Afghanistan and Iraq are punishment for the nation’s tolerance of homosexuality.

The justices will hear an appeal from the father of a Marine killed in Iraq to reinstate a $5 million verdict against the protesters, after they picketed outside his son’s funeral in Maryland.

A jury in Baltimore awarded Albert Snyder damages for emotional distress and invasion of privacy, but a federal appeals court threw out the verdict. The 4th U.S. Circuit Court of Appeals said the signs contained “imaginative and hyperbolic rhetoric” protected by the First Amendment.

The funeral for Marine Lance Cpl. Matthew Snyder in Westminster, Md., was among many that have been picketed by members of the fundamentalist Westboro Baptist Church in Kansas. Westboro pastor Fred Phelps and other members have used the funeral protests to spread their belief that U.S. deaths in the Iraq war are punishment for the nation’s tolerance of homosexuality. One of the signs at Snyder’s funeral combined the U.S. Marine Corps motto with a slur against gay men.

Other signs carred by members of the Topeka, Kan.-based church said, “America is Doomed,” “God Hates the USA/Thank God for 9/11,” “Priests Rape Boys” and “Thank God for IEDs,” a reference to the roadside bombs that have killed many U.S. troops in Iraq and Afghanistan.

The case will be argued in the fall.

The case is Snyder v. Phelps”

Now, while I personally would like to see the WBC shut down and it’s members publicly flogged, I can also acknowledge that with exception of defamation incitement to riot or violence, the federal government does not regulate speech. Even in cases where speech encourages illegal violence, instances of incitement qualify as criminal only if the threat of violence is imminent. This issue has been addressed directly in a couple of Supreme Court cases.

In Yates v. United States(1957) communist party members had been charged in the violation of the Smith Act, which made it illegal to organize any society or group whose stated goal was the overthrow of the U.S. government. Yates argued that his party was not inciting the active overthrow of the government, and was therefore not in violation. The court ruled that the Smith Act could not make “advocacy of forcible overthrow of the government as an abstract doctrine” illegal, and a precedent was set.

Following Yates was the 1969 case Brandenburg v. Ohio, the most well known Supreme Court ruling regarding hate speech. When Brandenburg, a KKK leader in rural Ohio was convicted of advocating violence against blacks and jews, he appealed all the way to the Supreme Court. The Court held with the Yates ruling that the federal government could not punish the abstract advocacy of force or law violation.

Both court cases refer back to the concept of clear and present danger, as defined by justice Oliver Wendell Holmes, Jr.:

“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree.”

So how does this all roll back around to the Snyder v. Phelps case? Well I think it’s pretty clear that while Phelps and the members of his church are hate mongering fuck tards, their speech doesn’t represent a clear and present danger to any person or institution. While I personally disagree with their message, you can’t legislate away people’s right to be assholes.

I think the appropriate response here is similar to what the good folks at Twitter did, as well as the counter-protests of the Patriot Guard Riders at military funerals. We all have a right to free speech, lets just use ours to drown out the idiocy of hate loving morons.

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~ by K. Ritcheson on March 8, 2010.

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