Steve Ralls

Free Speech vs. Hate Speech

Filed By Steve Ralls | October 31, 2007 7:11 PM | comments

Filed in: Fundie Watch, Media
Tags: Fred Phelps, funeral protests, military, Westboro Baptist Church

How much of a free speech purist are you?

You may be put to the test when answering that question as you consider a ruling today in Maryland against the notoriously anti-gay Westboro Baptist Church and its leaders, including Rev. Fred "God Hates Fags" Phelps. Phelps' protest outside of one soldier's funeral has cost him $11 million.

For my money, there's no question that Phelps and his followers are amongst the most uneloquent hate speech spewers in the United States. But is their right to say what they say - in this case, during a funeral on public property - also protected by the First Amendment? It's a delicate question for some, especially as today's ruling, if not overturned, could have far-reaching consequences on public protests, including anti-Westboro protests organized by the LGBT community.

Albert Snyder of York, Pa., sued Phelps and his "church" after Westboro'ers protested outside of the funeral for his son, Lance Corporal Matthew Snyder, who was killed in Iraq. The protest was not the first; the Phelps clan has been staging numerous protests at military funerals since the war began, insinuating that service member deaths are God's retribution for an America that welcomes LGBT people.

Several states, and the United States Congress, have passed laws limiting such protests at funerals. And reasonable people can probably agree that those protests are in poor taste . . . disrespectful to mourning families . . . and beyond the pale.

Today, a jury sent a resounding message of disapproval for the vile hatred put forth by Phelps and his followers. According to the Associated Press, "The jury first awarded $2.9 million in compensatory damages. It returned in the afternoon with its decision to award $6 million in punitive damages for invasion of privacy and $2 million for causing emotional distress."

Those damages, if upheld, will surely bankrupt Phelps and his church, and that is good news for champions of decency everywhere.

But here's the question: As repugnant as the protests are . . . are they unconstitutional?

The funeral protests took place on public property, meaning that today's ruling could set a precedent for limiting public protests or significantly penalizing protestors who upset attendees at public events. By extension, that could potentially mean a crackdown on pro-gay demonstrations at anti-gay events . . . hefty fines for progressives who upset conservatives . . . and a slippery slope for political demonstrations of all kinds.

Code Pink clearly recently upset Senator Robert Byrd of West Virginia during a Senate hearing. Could he sue the group for speaking out? And if LGBT demonstrators show up at an "ex-gay" conference, can conference organizers sue the protestors for inflicting distress on the "ex-gays?" And if we want to proclaim that "God Hates Phelps" outside a public protest by Phelps, would we be held financially accountable in a court of law?

I'm not a lawyer, but I have to assume that today's ruling could, potentially, mean yes.

Now, before the critical comments start flooding in, let me be clear: I'm as giddy as anyone that Phelps was smacked down in a court of law, and as sympathetic as anyone to the circumstances that led to a grieving father's lawsuit. But I do fancy myself a free speech purist, too, and I have to ask: Would another case, with the situation flip-flopped and in the hands of a not so humanitarian jury, result in an indistinguishable line between what is free speech and what is hate speech? And where will that line lead us?


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Would another case, with the situation flip-flopped and in the hands of a not so humanitarian jury, result in an indistinguishable line between what is free speech and what is hate speech?

Well hate speech and free speech aren't mutually exclusive categories. A speech act can be both (Nazis marching in Skokie, IL), one, or neither (reproducing a copy written play without permission).

But besides that, I wouldn't say this jury is all that humanitarian or pro-gay or anything. No one outside the queers cared about Fred Phelps when he was just protesting our funerals and trying to hurt members of our families going in and out of funerals for AIDS victims; it's only now that he's gone after the soldiers are laws being passed to ban his protests. So the question isn't really "Will a ruling against the most repugnant speech acts spill over to include generally annoying protest?" as it is "Will a ruling against the worst anti-military protest spill-over to other anti-establishment protests?"

And it really already has. What about all those folks who were preemptively arrested before the GOP national convention in NYC in 2004? I mean, when the police was arresting people just because they might protest, I think that it doesn't take a court ruling to stifle that kind of free speech. What about the general silencing of anti-war folks in the media leading up to the Iraq War, like the kind that led to rules at MSNBC requiring two pro-war voices on every show for anti-war voice?

I mean, those are just two completely random examples. I can't say that I'm a "free speech purist" because that's just so textual to me - restrictions of productive dialogue aren't just limited to what the government does (or, more accurately, what the government says that it's going to do, either through statue or through court rulings). Sometimes instead it's corporate media being afraid of bucking a certain trend, sometimes it's people being silenced by other forms of "free speech", etc. So being a purist about the text of the law when that's just one piece in a larger puzzle of what creates productive dialogue seems rather empty to me.

I also don't really see much "pure free speech" anywhere really. Our speech is always curtailed by something - work rules, school rules, culture, familial relations. We rarely ever have an opportunity to say the first thing that pops into our heads mainly because speech matters. And isn't it really that restriction on speech that gives it it's meaning? Or maybe I'd be just getting too metaphysical for this question....

About this specific ruling, I don't think that it's going to be upheld on appeal. A lot of rulings that garner a whole bunch of attention like these are overturned, but that doesn't mean that we're going to be exempted from hearing about how this court is a sign that we're all going to hell or that God Hates Maryland.

Wait, Jerame, you should totally buy up godhatesmaryland.com. I have a feeling it'll become a hot commodity tomorrow.

Steve, I think you are totally on point. Think about Cindy Sheehan. This ruling could mean that Kaiser Bush has the ability to sue her for setting up Camp Casey.

But Alex makes some fine points, too. There is no free speech in this country, never has been. To add another example to the list, what about the anarchists like Emma Goldman who was deported because she advocated anarchy during WWI? What about Sherman Austin, who was the first person locked up under the Patriot Act because he ran a website called Raisethefist.com that advocated anarchy? So-called "undesirables" will always have limits to their free speech.

But I have to agree with Steve, again. That the Skokie case, while not my favorite Supreme Court ruling, is an important one. Because all speech must be protected if there is going to be any guarantee of free speech. I don't have to agree with it, though.

My question is, it is really public property they stand on. Yes if they are in the public right of way, and the street. I think no, if they are standing in the cemetery. People pay good money for that 6ft long 3ft wide and 6ft deep plot of land. They should ask each and every persons family before standing in any spot. They could be trespassing.

Free speech is great, but by distrubing a funeral they are taking away the right of those gathered. The right to freedom of religions for instance.

Do your rights give you the right to take away ther rights of others?? hmm.

Shari Miller | November 1, 2007 11:24 AM

Two issues: First, a protest can't be "unconstitutional." Only laws can be declared unconstitutional. Someone's act can't be.

Secondly, people don't have the First Amendment right to free speech to yell "FIRE!" in a crowded theater where there is no fire. "Rev" Phelps has been yelling "Fire" for years, and I think he needs a good dousing.

I'm also haunted by the specter of scary precedent being set, but protesting at somebody's funeral deserves no protection at all. Even if the situtation were flip-flopped. I know people who were ready to party when they heard Roy Cohn or Jerry Falwell died, but they weren't doing the partying at the freakin' funeral. That's just tacky.

This needs to be overturned and fast.
First nobody will get a dime out of Phelps.
second.. it should be obvious to everyone this means severe limitations on speech in this country and if you can 't protest a funeral then you can't protest a war or the president speaking on any subject.

If that was my friend's funeral Phelps was protesting at i would be up for aggravated assault at least then a jury could make a more rational decision and one that would be not so far reaching.

Every once and a while You Have To Take One for The Constitution.

Because it is the right thing to do.

Take care
Sue

Phelps Go To Hell

Don in Texas | November 1, 2007 6:10 PM

This lawsuit had nothing to do with
"freedom of speech." The government (local, state and federal) was not involved in any way. There was no unconstitutional ordinance or statute which infringed on the Phelps cult's rights under the First Amendment.

Instead, an aggrieved, injured party (the family of the the fallen Marine) filed suit for damages against the defendants (the Phelps cult) who had caused the injury. According to the Associated Press, "The jury first awarded $2.9 million in compensatory damages. It returned in the afternoon with its decision to award $6 million in punitive damages for invasion of privacy and $2 million for causing emotional distress."

The jury's verdict favored the plaintiffs who were awarded compensation ("made whole") for their injuries.

One wonders what basis the Phelps cult might have for an appeal from the verdict of this jury.

In any event, the question of "constitutionality" is not involved in this lawsuit.

I think it is important for us to uphold the broadest possible protections for free speech, especially at a time like this when civil liberties are under such serious attack in this country. This definitely means defending unpopular speech like that of Phelps' gang.

GLBT advocacy and activism could clearly be targeted in the same way the Phelps' are in this suit. If the judgment stands we can say goodbye to ever dying in at St Patrick's cathedral ever again, don't you think?

Even more fundamentally though, our very existence as out GLBT people is always potentially censurable speech. You know - holding hands at the movies or showing up as parents together at your kids' school makes right wingers think we're 'shoving it down their throats', offending them, injuring them, etc. Free speech and it's close cousin, free association, are essential to the defense of any minority community.

Also think about how the transparency with which the Phelps crowd asserts their hatred has always been helpful for making visible the depth of the prejudice against us. They do some of our work for us in proving that the end game for anti-gay hatred is venomous, even to the point of celebrating our deaths.

Sure, it gives lots of conservatives an extreme against which to define themselves more moderately. But the hard core dominionists (and there are a fair number of these people) really believe that GLBT people's presence condemns the nation/threatens their children's potential for salvation/etc. They may argue about Phelps' methods, but push them to disavow his bedrock belief and they can't.

As long as there are Fred Phelpses in this world I hope they are clearly stating their goals and doing so in public places where they cannot escape notice.

i understand Don what you are saying.
However this verdict clears the way for similar suites which will have a limiting effect of free speech.

This paves the way for damages to be levied for all manner of demonstrations against whatever event is taking place even political events.


Take Care
Susan Robins

PS...
Wish i was in San Antonio, I love Texas.

Hi Steve,

I appreciate your reasoned commentary about this issue. I am a "born again" Christian who believes that the Bible is the exclusive special revelation of the one true God. I wanted to share that so they anyone reading this will understand my world view and understand the context of what I am about to say. I think the behavior of Rev. Phelps and his congregation is repugnant. it certainly isn't biblical. My position regarding homosexuality is that it is a form of sexual immorality clearly identified in the Bible. Having said that, I don't hate or fear homosexuals. In fact, I have had close friends who were gay. I knew where they stood and they knew where I stood. Could we still relate to one another? Absoluely. Why? Because while my position is what it is, I am still commanded by God to love my neighbor. I can do that and still disagree with the choices people make.

Regarding speech, I think your concerns are spot on. This ruling you refer to will effect us all. In Canada,if I were overheard saying what I just said to you about my position on homosexuality, I could be arrested, fined, and possibly imprisoned under current Canadian law.

Is that the sort of environment we want here in the United States? I remember a saying that really defined who we used to be as American Citizens, and it defined how we defined democracy:

It want something like this: "I may disagree with you, but I will defend to the death your right to disagree with me."

Dissent and vigorous debate used to be valued qualities of who we were as a people. I think if we respect each other's right to an opinion, the entire notion of "hate speech" will be solved. I realize that is an idealistic point of view...but it is nonetheless true.

Despite the fact that, as a Christian, I embrace values that I hold to be absolute, I will be diligent to respect those people who disagree with me. I hope those people will return that respect.

In service of the King of kings,

Mike