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.