The difference between ‘right’ and ‘legal’
I’ve been thinking about the Westboro Baptist Church lawsuit, and how it reflects on the difference between something being “right” and something being “legal.”
The facts are these. Headed by Fred Phelps, the Westboro Baptist Church of Topeka, Kan., is an unaffiliated Christian congregation focusing on one specific doctrine: that God hates all forms of homosexuality and its practitioners, that all homosexuals will burn in hell, and that so will the people who tolerate them.
Phelps’ teachings cast a wide net with regard to that last point. Basically, if you’re not actively persecuting and preaching against gays, you are tolerating them and thus in danger of hellfire. Phelps teaches that the United States is a cursed nation because it allows homosexuality to exist unpunished, and that when soldiers die in Iraq, it’s God’s punishment for America.
Phelps and his 100-member congregation, composed almost entirely of his family members, are infamous for picketing at funerals. They first came to prominence when they marched at gay murder victim Matthew Shepard’s memorial service, carrying signs declaring that Shepard was at that moment burning in hell. In the last few years, they’ve started doing the same thing at soldiers’ funerals, declaring the soldiers also to be in hell — not because they were gay, but because they were fighting for a nation that tolerates homosexuality.
They also picketed the funerals of Coretta Scott King and Mr. Rogers. Yes, Mr. Rogers. I don’t recall the specific reasons, but it definitely related to homosexuality. Everything comes back to homosexuality with Fred Phelps. You’d hear more references to gay sex in one Phelps sermon than you would in watching 10 hours of gay porn. (That figure is approximate.)
Now, you’d think that if God were nearly as obsessed with homosexuality as Phelps is, he’d have seen to it that it was condemned in the Bible in more than just four verses (two of which occur in Leviticus, right next to now-ignored rules like not having sex with a woman during her period and keeping “clean” animals separate from “unclean” ones). There is no biblical (or even rational) reason for creating an entire church based solely on that one principle.
The only explanation is that Phelps is unhealthily fixated. You watch footage of him and you can see how filled with vitriol and contempt he is. There is no kindness in him. He’s loud and angry. He is an ugly person.
Furthermore, loudly protesting at a funeral is among the lowest, tackiest things a person can do. What’s astonishing about Phelps is his ability to make everyone hate him — conservatives, liberals, Christians, non-Christians, gays, straights, everyone. Even people who believe homosexuality is sinful think picketing a funeral is appalling. Even people who think the United States is too tolerant of gays don’t think that God is punishing America by killing its soldiers, much less that picketing a soldier’s funeral is an appropriate thing to do.
Ironically, in so vehemently claiming that his church is the only one truly doing God’s work, Phelps is displaying the very opposite of Christlike behavior. Nothing Jesus taught could possibly be construed to endorse this kind of vindictive nonsense. Jesus talked about comforting those that mourn, not harassing them. He himself wept when he saw how sorrowful Mary and Martha were at the death of their brother Lazarus. Fred Phelps is one of the least-Christian people I know of.
Several states have passed laws against protesting at funerals, as the direct result of Phelps’ activities. But the big event occurred last week when a federal jury awarded $10.9 million to the father of a U.S. soldier whose funeral Phelps’ group picketed. Albert Snyder of York, Pa., sued the Westboro Baptist Church for invasion of privacy and the intent to inflict emotional distress.
In almost every civil lawsuit resulting in millions of dollars being awarded, I think, “Wow, that person is greedy.” Not this time. This time I see the point. It’s not to make Snyder feel better about his son’s funeral being ruined by an evil old man and his zealots. The point is to cripple the Westboro Baptist Church. It’s to make them think twice about protesting another funeral. Now that a precedent has been set, others could sue the church for similar offenses. It could ruin them.
To hear about this evil, spiteful group being slapped with an $11 million fine just FEELS right. It feels like justice is being done. It feels like the right thing to do.
But then again … there’s the First Amendment. Phelps’ people weren’t in the church where the funeral took place. They were 1,000 feet away. They were loud, though, and created a circus-like atmosphere. Their presence meant there had to be police and news reporters, too. No doubt it affected the funeral.
But then again … don’t they have the right? As awful as their message is, don’t they have the right to preach it?
It’s long been understood that the First Amendment doesn’t protect all speech in all situations. Speech that is liable to lead directly to violence or mayhem is not protected (the classic “yelling ‘Fire!’ in a crowded theater” exception). Speech that is “obscene” (though that’s very hard to define) can be legally restricted. Nonetheless, the general rule is to err on the side of allowing the speech, rather than limiting it.
Then again, the venue of one’s speech is often an important element in determining whether that speech is protected by the First Amendment. Chicago Sun-Times columnist Neil Steinberg makes this excellent point:
You are free to say almost anything you want in this country, but you are not free to say it anywhere you like. The Pledge of Allegiance is revered, but if I decide to stand up and deliver it during the second act at the Lyric Opera, I’m in trouble. The public sidewalks are open to protest, but I’m not allowed to march back and forth in front of your house at 2 a.m., beating a drum and delivering my urgent message about UFOs. Choice of venue is what turns free speech into harassment. I can state my views, but not by phoning you 40 times a day.
I can say this for sure: Morally speaking, if there’s something that isn’t covered by freedom of speech, it’s angrily shouting hateful messages outside of funerals. But that’s my gut talking. Will it pass legal scrutiny? Some are already worrying about the effect that this judgment, if upheld, could have on other controversial speech. The decision against Phelps feels right. It feels satisfying. Is it constitutional? We’ll see.
November 5th, 2007 at 4:12 pm
I heard that since it’s a civil suit (and not the other kind), then the 1st Amendment doesn’t apply. Kind of like how OJ was found innocent, but later found guilty in a civil suit, which is why he still owes the Goldman’s so much money. Right?
November 5th, 2007 at 5:18 pm
I don’t think people suddenly give up their first amendment rights in a civil trial. In fact, I’d say that most first amendment issues that are decided in courts are civil suits.
However, in this case, I think justice is being served. I think that we’re using our “rights” far too often to take a leave from what used to be common sense… though Eric rightly pointed out that since there’s no one clear definition for things like morality or “common sense,” it can become a slippery slope.
November 5th, 2007 at 5:29 pm
They declared a funeral as a private gathering-and thereby speech can be limited. I’m fine and happy with it. I was surprised by the settlement, but had read the family didn’t ASK for it..they hadn’t put a price on thier pain and suffering, the jury just decided to make Philips feel some pain. I admit I’m glad.
November 5th, 2007 at 7:45 pm
Free speech is not an automatic free-pass form civil liability. If what you say causes actual harm, such as lying about a product being unsafe or about a bank being untrustworthy, then you are liable for that harm.
I’m not sure what the specific reasoning in this case was. I’m not sure that crazy ranting should be illegal unless it causes direct harm. In this case they were 1000′ feet away (10 football fields!) and, from what I recall, the family wasn’t even aware that he was there until they saw news reports later.
It sure feels good that Phelps got a smack down here. I just hope it was based on sound legal principles which can’t be extended to quash more “legitimate” speech in the future.
November 5th, 2007 at 7:46 pm
Oops. 1000′ 10 football fields. How about 3 1/3?
November 5th, 2007 at 8:33 pm
It’s thanks to Freddie that Utah now has a law banning picketing of funerals. Demonstrations are banned the hour before and hour after the event. I’ll leave the Constitutional issues surrounding it to the lawyers, but I can’t say that this law makes me lose any sleep at night.
November 5th, 2007 at 9:03 pm
Eric, this was interesting/entertaining/poignant/funny enough to have been your snide remarks this week. I’m just saying. Writer’s strike indeed.
November 5th, 2007 at 10:37 pm
Good for you. By tolerating the Westboro Baptist Church and allowing them to act within the limits of the law, we are showing more grace and compassion than all of them put together. This little column feels symptomatic of a complete lack of cognitive dissonance (I mean that as a positive observation).
This is gonna get a lot of comments.
November 6th, 2007 at 12:57 am
Why does the media even entertain the WBC? It’s clear that that’s pretty much all they want, and yet we still talk about it and take these people seriously. If CNN, FOX, and MSNBC decided to ignore them, they’d be dead. Anytime that hag Shirley Phelps is interviewed on television, the station should be piping in a laugh track over her comments. The Adam Carolla Show has had her on on a handful of occasions, and each interview goes pretty much the same way: She damns us all to bloody hell, Adam puts her on hold and makes fun of her for a few minutes, and the process repeats itself for about ten minutes. It’s funny and completely ruins the impact of anything she has to say. (By the way, a few months ago, when the Harry Potter movie came out, Phelps stated on the Adam Carolla Show that she allows her kids to read the Potter books, because they’re senseless entertainment. Her reaction to Dumbledore’s posthumous outing must have been priceless.)
November 6th, 2007 at 3:20 am
Good post.
November 6th, 2007 at 6:05 am
Not much to add. I think that the most important issues have already been pointed out:
1) Choice of venue makes all the difference
2) It was a civil suit. There doesn’t need to be a law against harassment for me to successfully sue for harassment. The court precedent does not establish a law about picketing funerals (only legislators can make laws), and is therefore not a violation of the first amendment, which begins, “Congress shall make no law…”
To answer thejoeinme: the media entertains the WBC because it is scandalous, and that sells. There are a lot of people who love to be outraged, like the people who hate Eric’s offensive column and keep reading every week so that they can be offended again.
November 6th, 2007 at 6:25 am
Louis Theroux and Keith Allen (Lily’s father & also the Sheriff of Nottingham on the new BBC “Robin Hood”) have both done semi-documentary shows on the Phelpses for British TV. They basically play their parts “straight” and let Shirley & her family (the Rev. rarely allows himself to be interviewed) do most of the damage themselves. There is the occasional voice-over comment, but generally no on-camera confrontation between the filmmakers and their subjects. (In contrast to how, say, Richard Dawkins behaves in some of his documentaries.)
I generally find the “just open the window and let the world know how much it stinks in that house” approach to be the best, but also realize with Louis Theroux that the Phelpses view one image of one sign saying “God Hates Fags” during the course of an hour-long doc to be a success. And there are many, many views of signs like that in an average show.
Mrs. Thatcher used to talk about the “oxygen of publicity” and banned IRA adherents from being allowed to speak on TV. This led to silly situations in which the BBC and other news organizations would simply dub in an actor’s voice over that of, say, Gerry Adams. But in the case of the Phelpses, I really do think the “oxygen of publicity” is all they are after (which is why, from their point of view, this court case isn’t really a “loss” for them.) and the sooner their supply is cut off the better.
November 6th, 2007 at 10:10 am
Some of you posters are getting confused. There is no need to argue in support of the lawsuit, no one is arguing against that. Eric mentioned that IN ADDITION to the lawsuit, some states are creating LAWS banning protests at funerals. We are talking about it in Nebraska here, we charged one of the WBC women with child endangerment for having her young son participate in a protest at a funeral that may have incited violence. We don’t have one of the new funeral protest laws, and we are trying to do a legal end-around to attack the WBC, for obvious reasons. I am not entirely sure where my stance was on these anti-protest laws, but that quote from Steinberg really makes a lot of sense. I seem to be ok with the laws, and our semi-legal tactic here in NE.
Also, WBC is trying to state that Ernie Chambers can’t sue God, which is an unrelated hilarious event. Before you whip out your “Blaspheme!!1″ bats, realize that Ernie’s statement really has nothing to do with religion and has to do with the right to file lawsuits, including preposterous ones. Ernie has also said that WBC are horrible but he is uneasy when it comes to restricting protest. Ernie is my voice of reason in our legislature.
November 6th, 2007 at 11:02 am
“2) It was a civil suit. There doesn’t need to be a law against harassment for me to successfully sue for harassment.”
Well yeah, there does have to be a law. It’s just a civil law, not a criminal law. You can’t just sue someone because they looked at you funny, but if there is a law against doing so, or if you can show how another law fits the situation, then you can sue.
“The court precedent does not establish a law about picketing funerals (only legislators can make laws”
A precedent is effectively a new law. Lower courts are obliged to follow precedents set by higher courts. That is why so many people are eager to see civil rights cases go to the supreme court – they want the highest court in the land to declare how such cases should be resolved from then on. The supreme court would not establish a law about picketing funerals, but they can say whether picketing funerals is illegal per another law, or whether a law established against picketing at funerals is constitutional.
Though a bit wishy-washy on this point in the past, in recent times the supreme court has pretty consistently said that the fourteenth amendment applies the same first amendment protections to state laws which are applied to federal laws. Based on these precedents, a state law which restricts speech can be ruled unconstitutional.
November 6th, 2007 at 11:38 am
Here are the limits on free speech:
Clear and Present Danger
Fighting Words
Libel and Slander
Obscenity
Conflict with Other Legitimate Social or Governmental Interests
Time, Place, and Manner
The one that applies to this case it Time, Place and Manner. These regulations of expression are content-neutral. A question to ask: Did the expression occur at a time or place, or did the speaker use a method of communicating, that interferes with a legitimate government interest? You can protest or hold a rally, but you cannot do it in a manner that adversely affects the rights of others. You cannot do it in a place that adversely affects the rights of others. You cannot do it at a time that adversely affects the rights of others. The protest/rally should not impede the flow of traffic or create excessive noise levels at certain times and in certain places.
P.S. In a civil case, the government is not involved at all. It is person v person, not state v person.
November 6th, 2007 at 1:51 pm
Wow, Eric. It’s weird (but refreshing and cool) to see you getting serious for a moment. Great column!
November 6th, 2007 at 2:13 pm
“P.S. In a civil case, the government is not involved at all. It is person v person, not state v person.”
Not true. A criminal case is the state bringing a case against a person. Civil cases are a person suing either another person or the state. For those who want to look it up: 42 USC 1983–this allows individuals to sue state and local governments for violation of the constitution and federal statutes and Bivens v. Six Unknown Named Agents–this allows for the right to sue the federal government for the same.
Hate speech can be another category of restricted speech. I would think any attempts to limit the Phelps’ protests might use that as a reason.
November 6th, 2007 at 2:20 pm
As others have well pointed out, the Bill of Rights was added to protect the people from the government/head of state/Powers That Be, not from each other–that’s what individual laws are for. The First Amendment doesn’t apply here.
November 6th, 2007 at 2:29 pm
The First Amendment applies to any laws enacted to curb funeral protests.
November 6th, 2007 at 5:04 pm
What was the original question? And how many people here are actually lawyers, and how many are people who just decided to talk? Unfortunately for my last sentence, there’s a strong argument that lawyers are just people who decided to talk. Lawyers go to lots of school to learn how to talk. Does that mean they’re slower than the rest of us who learned to talk before we went to school?
November 6th, 2007 at 6:57 pm
All I know is, those Fred Phelps “Christians” are disgusting, vile people. If God were to come close to hating one of his children, it would be one who hates others.
November 6th, 2007 at 9:36 pm
AMEN, Momma Snider! That’s what I kept thinking the whole time I was watching an interview with Shirley Phelps. What a steaming pile of hipocracy!
Eric really does voice an interesting idea. Do everyone’s rights weigh the same? Would it even be possible to live in a world where everyone’s rights didn’t outweigh anyone elses’? Do the monsters have a right to protest funerals, and if so, what about the rights for family members to greive the passing of family members unmolested? Why are the psychos’ rights the only ones most people focus on? Probably because “free speech” is bantered around so much, and theres no clear-worded law about every little “right” we as Americans assume we have. I have the right to wake up at 2:13am Thursday mornings and eat a grahm cracker with milk, I don’t need a detailed law outlining that right. …but now I’m just ranting into incoherence…
November 7th, 2007 at 10:09 am
I am not a lawyer, but I am a constitutional specialist, an American Government teacher, and the head of the Political Science department at the school where I teach. I wasn’t aware I had to flash my credentials to post a comment on Eric’s blog.
But since I have posted my “worthy-ness,†I will clarify my original post where I said that the state is not involved in a criminal case. They do not bring the case, but they can be the defendant. And civil cases are not out to prove that someone broke a law. That is a criminal case and will be brought by the state. A civil case can deal with wrongful death suits or assault or vandalism, all of which are illegal, but the civil suit does not prove guilt beyond a shadow of a doubt. It is merely a preponderance of evidence that one side was harmed by the other.
Hate speech is not banned by the First Amendment, in most cases. The KKK, the Neo-Nazis and all the rest have the right to their vitriolic message. They can organize and hold rallies on private property. They cannot go to others and force their message on them (Virginia v Black is the landmark case here – cross burning is protected speech if done on private property without the intent to intimidate.) I have not followed this case much, so I don’t know if this group intended to intimidate/harass with their hate speech.
November 7th, 2007 at 10:40 am
Isn’t it obvious? Phelps is a homosexual and feels guilty about it. Those who preach against it with such fervor always are.
November 7th, 2007 at 4:15 pm
I’m not a lawyer either, and I summarily reject the premise that only lawyers can discuss the law. That’s absurd. Though, I suppose if lawyers are also people that “just decided to talk,” apparently no one can about legal issues. Good to know!
But anyway, I know hate speech is not banned by the First Amendment, but can’t it be proscribed as group libel or fighting words? In R.A.V v St. Paul, White, Blackmun and Stevens agreed that the St. Paul hate speech ordinance was overbroad, but they disagreed with Scalia’s argument that the government can’t regulate the content of speech, especially fighting words. All three said that, had the ordinance been narrow enough, it would have been constitutional even though it specifically regulated bigoted content. I’m not sure that the Phelps’ protests would qualify as either libel or fighting words, but I was just suggesting hate speech regulation as a tactic the government could take in limiting the funeral protests. Just a thought.
I think the Phelps probably do have a right to protest, even though the protests are horrific. I’m very interested to see if any attempts to stop them will be deemed constitutional.
May 23rd, 2008 at 6:13 pm
16. This Westboro Baptist church not only says they hate the Gay-Community but African-Americans, Canada, Sweden, the Fire Department of NY, victims of 911, Christian Churches, The Pope, Judaism, America, Our American Troops, and the list goes on and on. Many of the groups they despise are specifically named on their hate propaganda, picket signs, and their many websites. They not only hate, but wish death on all that they do hate.
This sick, so called church spreads its hate through picketing in our streets, provoking attacks, with abusive vulgar language. Worst of all, they endanger their own young children, having them man the front lines in their combative demonstrations – attempting to create a confrontation and cause for one more of their frivolous lawsuits.
If a mother has given her son to this country and is putting Him in his grave, this is not the time or the place. This is not about protesters, this is about a group that calls that mother names on the way into a church to say goodbye to that son. We are not talking about FREEDOM we are talking about human decency. This is not about protesting, this is about a life of hate. They are not peaceful. They are not a “church”. They go after any thing that can get them in the news. I am all for protest when there is a reason, I have been in many. This group will protest anything to get its face on TV. It is about an old man lost in the darkness of hate, but will put his six year old grandson in danger to save himself. Do we have a real need to protest at any funeral? Is that a real Freedom.
The city of Topeka, the state of Kansas and the U.S. at large, its citizens and their Churches, schools and events are all held hostage by this “hate group” – always at the tax payer’s expense. With this group it is just not about Freedom. It is only about HATE.