Alex Blaze

Why Freedom of Speech has to be absolute

Filed By Alex Blaze | April 07, 2010 1:00 PM | comments

Filed in: Media
Tags: Fred Phelps, free speech, lawsuit, leonard pitts, Westboro Baptist Church

While LGBT blogs have been buzzing with several stories about freedom of speech these past few weeks, only one's really gotten the mainstream media's attention: the suit Lance Corporal Matthew Snyder's father brought against the Westboro Baptist Church for protesting at his son's funeral. An appeals court ruled that the church's right to protest on public property couldn't be limited and overturned a lower court's multi-million dollar ruling against the WBC, and ordered the plaintiff to pay the WBC's legal fees.

So there's been plenty of boo-hooing coming from mainstream media folks, discussing just how terrible it is for the WBC to protest soldiers' funerals. Now, someone with a long-term memory and a skeptical mind might wonder why people are so upset just now over the WBC, just over these past few years when they started protesting soldiers' funerals and not before when they were a relatively unknown entity protesting funerals during the AIDS crisis and of gay people killed in hate crimes. The mainstream media (plus Bill O'Reilly, who spars with the WBC regularly) really doesn't care that the WBC is viciously homophobic, or even that they protest funerals, and instead the WBC's biggest sin against the scolds in the punditry and news media is being insufficiently respectful to the troops.

With that in mind, I came across a column today by Leonard Pitts, Jr., advocating an exception be made to free speech just for the WBC. Check out the hand-wringing:

Take it as a reminder that what is legal is not necessarily right. I admit to being conflicted. I am a strong believer in the First Amendment and in the principle that freedom of speech means nothing unless it is protected for the vilest among us: even the flag burner, the anti-Semite, even, as in this case, the intellectually incontinent. On the other hand, the protections are not absolute: There is no First Amendment right to threaten or to libel.

There is no First Amendment right to threaten or libel. Did the WBC threaten or libel anyone here*? Sure, you could say their argument isn't true, but it's not like the argument that God's punishing America for being too pro-gay is really something that could be proven wrong. And if that is libel against gay people (not that Pitts really seems to care about us; his focus is the troops), then there are quite a few churches and orgs that could be sued right now for saying God doesn't like homosexuality.

Pitts continues:

So surely we could carve out some reasonable exception that would keep a Fred Phelps from intruding on the solemnity of a private funeral. Of course, those are legal questions.

This is the real problem: Pitts doesn't have anything in mind, any legal principle that the WBC violated, and fair reason their free expression should be violated. He just wants the WBC to be forced to stop doing what they're doing, and he thinks that someone should come up with a legal principle to make it happen.

It's easy to chip away at free speech around the edges that way - no one really likes the WBC (other than the Religious Right, who does like being able to point to them and say, "We're not homophobes; they are") and people generally think that protests shouldn't happen around funerals (I say "around" because the WBC protests across the street from funerals, not on private property).

Ultimately, though, Pitts's comment there demonstrates a larger point: usually when people want to limit free speech in some way, and they come up with some reason to do it, some way that it seems justifiable, really what they want is for a specific person to be punished or act to be banned and are searching for a principle after the fact.

Part of what makes a protest effective is its ability to be outrageous and get attention, and one of the ways the WBC is outrageous is they're going after a powerful political prop, a group of people respectable media and politics folks like to shield themselves behind because it's considered beyond reproach to criticize them: the troops. In an age where it seemed like everyone put a yellow ribbon on their SUV, where any criticism of the Iraq War was met with "You're disrespecting the troops," attacking soldiers is really an easy way to get people's attention and an easy way to become public enemy #1.

Consider how Pitts finishes his column with waxing poetic about the troops:

While we await that lovely day, this case is bound for the Supreme Court, where Summers will continue representing Albert Snyder for free. I asked the attorney why, and he told me that he's a veteran and has a brother doing a third tour in Afghanistan. "I would be appalled if someone did something like this at my funeral."

You'd like to think that's unimaginable. But we live in a country where it's anything but. For better -- and some days, for worse -- those are the rights people like Matthew Snyder die to defend.

Yeah, Saddam Hussein was about to take away the WBC's right to protest funerals. Mm-hmm.

Just because one group of people is unpopular and they're criticizing a group of people who is popular, and just because a group of people protests in a way that offends people's sensibilities (or, as Pitts puts it, "sense of right"), doesn't mean that it should be banned. That's why we have a court system - to make sure these basic principles are applied fairly. Just because they chose to insult the troops doesn't mean that they don't have a right to free speech. The First Amendment doesn't make an exemption for attacks on the troops.

Everyone who wants to ban a certain form of speech does so because they think people either can't handle it or because it'll hurt people's feelings. And while that's true, there's plenty of speech that fits into both categories, the alternative is letting a powerful group of people decide what we get to hear and what we get to say. There really isn't much middle ground.


*The plaintiff did include a defamation count in the original complaint:

21. In particular, the website states "God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver. In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD - PERIOD! You did JUST THE OPPOSITE- you raised him for the devil."

22. In addition to the previously described false and outrageous statements, the website states "Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic monster they condemned their own souls. They also, in supporting satanic Catholicism, taught Matthew to be an idolator."[...]

28. Plaintiff Albert Snyder, contrary to the defendants' defamatory statements, did no literally raise Matt "for the devil," nor raise him in an evil or immoral manner - the natural connotation of that statement.

The parts of the suit related to the website were thrown out, and the jury awarded the Snyders damages related to the remaining counts: violation of privacy (because the WBC drew attention to the funeral), emotional damages from the protest itself, and conspiracy to commit the same.

In other words, the defamation charge was tried and tested in court, and it didn't work.


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I've been invited to join about 50 facebook groups that support "banning protests at military funerals." The whole thing makes me sick to my stomach.

Not the protesting at military funerals. But long before Phelps was protesting military funerals he was protesting the funerals of gay men who had died of AIDS. Why no "ban protests at funerals of gay men who died of AIDS?" was that act not as noxious as what Phelphs is doing now?

As disgusting as Fred's actions are- I'd rather him have the right to protest funerals than see where a country that is able to ban protests at military funerals moves next.

Will it be no protests at Catholic churches (because they are sacred) or no speaking out against a war (because the military is sacred)?

But long before Phelps was protesting military funerals he was protesting the funerals of gay men who had died of AIDS. Why no "ban protests at funerals of gay men who died of AIDS?" was that act not as noxious as what Phelphs is doing now?

I think of that each time too, piggy. It always amazes me how we've been pinkwashed from the God Hates Fags guy...

"not that Pitts really seems to care about us"????

Do you never think of pausing a moment to simply Google for any verification for your kneejerk opining?

Leonard Pitts has a long history of advocacy for gays, as evidenced in this recent column about closeted Repugs:

"Because for all the laughter these men evoke with their lies to self and tortured rationalizations to us, I find I have also, hidden in the breath between ha and ha, a certain bittersweet pity. There’s just something ineffably “pathetic” in the inability of these middle-age men, in the Year Of Our Lord 2010, post-”Will & Grace,” post Ellen DeGeneres, post-Barney Frank, Elton John, Meredith Baxter and Neil Patrick Harris, to simply stand up and say those three simple words.

Perhaps that sounds judgmental. Perhaps it is.

But if so, it is a judgment fueled by the cowardice and mendacity of those who lack the courage to be what they are, by anger at the hypocrisy of a Roy Ashburn willing to sell out his own for 40 shekels of political approval from those who would hate him if they only knew, and, ultimately, by the realization that we have been at this intersection too many times before.

So you have to wonder: how many Massas and Ashburns, how many James Wests, Ted Haggards, Mark Foleys and Larry Craigs do we have to see, how many shocked spouses and embarrassed children do we have to endure, how many lies, alibis and justifications do we need to hear, before we accept the obvious: gay is not a choice, gay is not a sin, gay is not a shame.

Gay simply is."

Good point, Michael. From now on, I'll end every sentence I write with "in this particular instance, event, or media appearance."

Skeptical Cicada | April 7, 2010 2:20 PM

The First Amendment is not now and never has been applied absolutely. Just a few years ago, in fact, the Supreme Court interpreted it as not protected the burning of a cross on a black family's lawn. Defamation has never been constitutionally protected, nor have "fighting words"--that is, words likely to prompt the hearing to punch the speaker. I'm with Leonard Pitts on this one. Our democracy can thrive without having people picketing against the funeral of an individual who has literally nothing to do with the policy about which they are complaining. While we should only rarely acknowledge exceptions to the Freedom of Speech, we also are not required to tolerate what is, in effect, little more than the gibberish tantrum of a child who is craving attention by deliberately choosing the most incendiary possible method of protest with a thin sham of an expressive rationale for choosing the site of protest. No other country treats the Freedom of Speech as extremely as we do (compare Canada), and we are no more just as a result of our extreme indulgence. Spite at the mainstream not being outraged at WBC earlier is not a legitimate motive for denying a reasonable exception in this case.

The cross-burning case you're referring to (I'm guessing Virginia v. Black) actually struck down a state law banning cross burning. It just said that specific instances of cross burning can be banned if an intent to intimidate can be proven.

http://en.wikipedia.org/wiki/Virginia_v._Black

Defamation isn't protected, but the court found that that exception didn't apply in this case (see above).

"Fighting words" was defined in Chaplinsky:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting words" those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

That definition was refined in R.A.V. v. St Paul (another cross-burning case!) where the Court found that another cross-burning ban was unconstitutional because it prohibited speech directed towards a specific group, which is viewpoint discrimination.

Plus no one got punched here, nor am I aware of any WBC protest that resulted in violence. Maybe some have since there are so many they don't all get covered by media, but the fact that they do this day in and day out and no one punches anyone the vast majority of the time makes me think that these aren't fighting words.

So basically you're asking for a new exemption to be created because of a viewpoint that you don't particularly like. I get that; i don't particularly like what the WBC does either. But to say that someone who protests in a way you don't like is a child who needs a parent (in this case, the government) to punish them so that they fall in line and behave is a dangerous line of thinking. I really don't see where that ends since your reason for banning this form of speech is that it's "incendiary" - if a protestor chooses an incendiary means of protesting war or abortion or whatever, does stopping them do anything other than protect the interests and sensibilities of people with power? And how "incendiary" is incendiary? Can a protest get any attention at all without being incendiary?

And, yeah, other countries ban this sort of speech. Other countries also ban homosexuality, alcohol consumption, and voting, but I don't think that means that's a sign of our "extreme indulgence." Plus Canada's hate speech law, which is rarely enforced, gave Ann Coulter more publicity this past month than she's had for years in the US since she was allowed to do her whole martyr routine. That's a great result.

SkepticalCidada | April 7, 2010 4:11 PM

Alex, thanks but I teach these cases and don't need a primer on them. Don't assume your reader knows less than you do.

As for your reply, you have correctly distinguished the cases in a fairly rudimentary way. Of course, I didn't say those cases compelled a result here. I gave them as examples to illustrate that the freedom of speech is not absolute and that we do make exceptions in appropriate situations.

This controversy requires some policy analysis, and yours was, honestly, fairly weak. E.g. "Other countries also ban homosexuality, alcohol consumption, and voting, but I don't think that means that's a sign of our 'extreme indulgence.'" (Really? That's your response? I wasn't talking about Saudi Arabia, Alex. You've attacked a straw man.)

I'm not sure you quite understand the concept of viewpoint discrimination because I proposed nothing of the sort. Nor was I motivated by my own personal offense at WBC. I find them to be amusing caricatures of right-wing nuts. And, frankly, I probably would not allow a suit against them if they were picketing at the funeral of a gay man because their underlying message is condemnation of homosexuality.

But do I respect the Phelps clan as legitimate protesters here? No. They're professional publicity seekers, selecting escalating stunts to keep the media attention coming. You act as though preventing them from picketing this funeral is some threat to the Republic. It isn't, as the more moderate speech protections of many well-functioning democracies, including Canada, demonstrates. The sky will not fall if WBC loses this case.

I say that they should not receive First Amendment protection for the funeral picketing for several reasons, no one of which alone would be sufficient. First, picketing has long been recognized as presenting greater risks of disruption than mere speaking. Second is the high potential for emotional injury to grieving family members at a moment of extreme vulnerability, a time when we can acknowledge basic human decency as a particularly appropriate virtue. Third is the opportunistic choice of target. The protest concerns governmental action over which the deceased soldier had no more control than anyone else. Nor was the soldier himself gay or chosen for being a gay ally. He was chosen because it was an attention-grabbing stunt. Fourth, there are more than adequate alternative avenues for the Phelps clan to protest supposed federal pro-gay policies, so the interference with any message is minimal. In short, there is a very strong community interest in favor of protecting the privacy and dignity of the grieving family in the face of this physical picketing and, on the particular facts, there is minimal interference with any legitimate expressive purpose that the Phelps clan has.

I'm not persuaded by your terror at the remote possibility of a slippery slope. If a slippery slope argument is your best argument, I don't buy it. Our First Amendment jurisprudence can accommodate some basic human decency. Privacy and dignity merit consideration along with expression. They are all important values. I would not automatically subordinate every other public value to the freedom of speech, as your absolutist view would do.

Indeed, I would not protect the right of corporations to spend unlimited amounts of money on political campaigns, nor would I require a public university to subsidize a discriminatory student group, which the Court seems poised to do this Term. I would not have held that the First Amendment effectively guts anti-discrimination laws, as the Court held in Boy Scouts v. Dale. Speaking is not necessarily the highest public value in our constitutional order. It is very important, but not to the determined exclusion of every other value.

Sorry for thinking that you needed a primer. You referred to a case without a name or specifics and only said that it was from "a few years ago" and then misrepresented it (it lifted a ban on cross-burning, it didn't affirm it), so I'm sure you can understand why I thought that.

This controversy requires some policy analysis, and yours was, honestly, fairly weak. E.g. "Other countries also ban homosexuality, alcohol consumption, and voting, but I don't think that means that's a sign of our 'extreme indulgence.'" (Really? That's your response? I wasn't talking about Saudi Arabia, Alex. You've attacked a straw man.)

Why is it more valid if it's Canada and not Saudi Arabia? Excuse be for being dense, but I don't see why Saudi is an extreme strawman argument, while Canada is A-O-K.

You originally said, "No other country treats the Freedom of Speech as extremely as we do (compare Canada), and we are no more just as a result of our extreme indulgence." I took that to mean that we should be more like Canada, or that at least they were an example to follow. Personally, I do think they're less just because of that, what with that one preacher in the UK getting fined a thousand pounds just for saying that he doesn't like gays.

http://www.worldmag.com/webextra/16590

It wasn't an incitement to violence, it wasn't disrupting anything. It was just a disagreeable viewpoint. To me that's inherently unjust, and I'm also left wondering, what's the problem? Did they really think that guy was going to convince everyone that being gay was wrong, after it was basically everyone's opinion that homosexuality was wrong a half-century ago and yet people changed when they saw reality?

They're professional publicity seekers, selecting escalating stunts to keep the media attention coming.

You see "publicity seekers," they think they're raising awareness. You can't really engage the public discourse without seeking publicity.

You act as though preventing them from picketing this funeral is some threat to the Republic. It isn't, as the more moderate speech protections of many well-functioning democracies, including Canada, demonstrates. The sky will not fall if WBC loses this case.

That's assuming that we'd have the same protections the countries you cite have when it comes to preventing the wealthy from abusing possible crackdowns on free speech. We live in a country that doesn't seem to be prepared to ever tell rich people "no" unless they oppose a fundamental American value, so moving free speech out of that category wouldn't be productive. And when the next Republican president comes into power, or when they take back Congress, I'm fairly certain they'll look for ways to abuse whatever new rule gets created out of this.

That also assumes that there's some sort of benefit to increasing limitations on free speech. Haven't seen it yet, other than that some speech hurts other people's feelings. Reading the complaint I don't even see where they say that they heard the protest from the funeral, just that they didn't like knowing that it was happening across the street.

That also assumes that the only goal of the government of any country is to prevent the sky from falling. The sky will stay up there no matter what a government does. Just because someone doesn't die from a policy doesn't make it valid - it can also be invalid if it reduces quality of life in more abstract ways. I think there's a direct link to how free people feel to express themselves and how much they're allowed to discuss current events or express themselves on public property as they see fit. I may not like their message, but I also like knowing that publishing a political opinion on this site won't get me fined.

First, picketing has long been recognized as presenting greater risks of disruption than mere speaking.

OK, but like I said above, I'm not seeing much evidence that they heard the protest from inside the funeral.

Second is the high potential for emotional injury to grieving family members at a moment of extreme vulnerability, a time when we can acknowledge basic human decency as a particularly appropriate virtue.

Most people are sympathetic to that argument, which is what makes it more dangerous to me. It's more popular to limit this form of protest, fewer people will disagree, fewer people will stand up for the people who are punished, and so they can be swept under the rug.

Normally activists don't pull stunts like this because they want people to like them, at least a little, but the WBC doesn't seem to care about that. So they don't have much motivation to express "basic human decency" here. Will fining them give them that decency?

I'm also more than a little worried about the government deciding and enforcing "basic human decency" in a way that limits freedom. My definition of basic human decency isn't going to line up with someone else's, etc., etc.

Especially since the lawsuit was about more than the protest, but also about the website. They were claiming emotional damages off both. Why is one more valid than the other?

Third is the opportunistic choice of target. The protest concerns governmental action over which the deceased soldier had no more control than anyone else. Nor was the soldier himself gay or chosen for being a gay ally. He was chosen because it was an attention-grabbing stunt.

How is that not the government determining what speech is OK based on the content and viewpoint of the speech? What limits are there on that to make sure that it doesn't get abused, considering that not everyone who's going to work for the government is always going to be a wonderful, upstanding human being?

Fourth, there are more than adequate alternative avenues for the Phelps clan to protest supposed federal pro-gay policies, so the interference with any message is minimal.

There will always be more than adequate alternative venues. "Free speech zones" have become commonplace at a lot of large conferences. "Don't worry, you'll still get to say your message, you're just do it over there where no one will pay attention!"

It's not just a question of moving venues, but of taking away a tactic that many protestors use (being in the right place at the right time) and pretending that it's not important because there's always some place else.

What about a kiss-in front of a homophobic church on public property? It would be great since that way people going in will see the protest, but if they argue that they're emotionally distressed by seeing gays kiss, and it's a church, and they're sensitive to the message of the protest, would it be OK for police to tell the kissers to take it to another park outside of town?

I'm not persuaded by your terror at the remote possibility of a slippery slope. If a slippery slope argument is your best argument, I don't buy it. Our First Amendment jurisprudence can accommodate some basic human decency. Privacy and dignity merit consideration along with expression. They are all important values. I would not automatically subordinate every other public value to the freedom of speech, as your absolutist view would do.

I think that my slippery slope point was already proven in this exchange. "The government already limits speech in X, Y, and Z situations that are unrelated to the instance at hand, so adding another reason won't hurt much." Your argument from the top has been that going a little further won't hurt that much because we've already limited speech in certain ways. If that's not a slippery slope, I don't know what is.

So would your proposed policy only block protests near funerals or at all venues where there are adequate alternatives and the protest might cause emotional damage to someone? People were protesting in front of a health care lobbyist meeting a few weeks ago. If the lobbyists argue that they were hurt by the protest and the implication that they were helping leave people for dead while looting America and that there were plenty of other venues for that protest, would they be forced to pay damages under your proposal?

Moreover, limiting some speech because it's insufficiently respectful to soldiers (not what you're advocating, but what most people are advocating here) is pretty much the biggest silencing technique of the 21st century so far. How cheapened was our public discourse by the "Support the troops" argument? Part of the result is that we're in Iraq now is that people in the media and government were afraid of being seen as opposed to the troops. I know you see just a funeral, but all I'm seeing from most commentators on this is "Support the troops.

Pitts was just arguing that we should create some sort of rule to stop these specific people with this specific viewpoint, which I think in and of itself is a terrible way to create a policy that limits speech.

Human dignity is important, but I don't see how the government treating protest from adult human beings as "gibberish tantrum of a child" advances human dignity. It seems to treat us all like sheep in need of a shepherd.

SkepticalCidada | April 8, 2010 1:08 AM

Better. But we disagree.

But despite all these words, you basically elevate expressive activity above everything else and in doing that you're succumbing to pressure to belittle every other value, including respect for a grieving family, which you describe in dismissive, almost caustic, blame-the-victim tones. That's where absolutism is driving you. It's because you refuse to allow that a y other value could ever outweigh speech that you're pressured to belittle those other values.

You're also inconsistent in how you regard WBC. You criticize my labeling them as publicity hounds or the equivalent of children throwing a tantrum. But you simultaneously acknowledge elsewhere that they aren't like regular activists who "don't pull stunts like this because they want people to like them." I adhere to your second view of the clan. Their "stunts" are about drawing attention to themselves because they reap satisfaction from it. That's what I mean when I say I don't respect them as genuine advocates. They are zealots drawing personal satisfaction from the spectacle of the confrontation itself. This very nature of the group--willingness to engage in offensive stunts because advocacy isn't their genuine purpose--is what makes an exception more justified and also helps to contain it within narrow limits. And, no, nothing will change the hearts and minds of the clan. I couldn't care less about that. But when you have a group that isn't engaged in genuine advocacy and thus doesn't care about breaching norms of basic decency, I'm fine with protecting people who would be victimized by their antics. It is precisely because they have no incentive to exercise any self-restraint that a modicum of social control is justified, in my opinion.

I just don't find your "parade of horribles" convincing. The gay kiss-in in front of the homophobic church is fine. Going to a church service is not remotely the same as going to your child's funeral. Moreover, the protesters have a specific beef with the opinions of the church itself. And I don't agree with the oppressive overuse of "free speech" zones. What you're refusing to acknowledge and effectively belittle is that we're talking about a funeral service here. I know you really want to send me down your slippery slope, but I have no interest in going there and an exception here does not demand the kind of broad application you're using to support your slippery slope rationale. I never said anything about the website, moreover. That should be protected.

I don't view your "inherently unjust" line as an argument. How to interpret the scope of the First Amendment is a policy question. The answer isn't dictated by any god or "inhere" in the fabric of the universe. Calling something inherent is avoidance of policy analysis.

From your silence, I wasn't clear if you were disagreeing with me and also endorsing the absolutist speech position on unregulated campaign finance, mandatory subsidization of discriminatory clubs, and gutting of anti-discrimination law. Reflexively siding with speech is common among journalists, bit it isn't a workable or desirable approach to every case.

As for views of other commenters that differ from mine, I have no duty to defend them.

I should add that I brought up the fact that no one cared about the WBC pre soldier protests to show that it's view point discrimination that people are advocating. Basically, what folks like Pitts are saying is that "Fags will burn in hell" is OK speech, while "Soldiers will burn in hell" isn't.

Michael @ LeonardMatlovich.com | April 7, 2010 4:15 PM

"Basically, what folks like Pitts are saying is that "Fags will burn in hell" is OK speech, while "Soldiers will burn in hell" isn't."????

Ah, a mind reader, too.

Yeah, you know, you have to be a mind-reader to read what people are saying. In print.

Seriously, where does he say that the WBC protests should be banned because they're homophobic? I didn't see that passage.

"I should add that I brought up the fact that no one cared about the WBC pre soldier protests to show that it's view point discrimination that people are advocating. Basically, what folks like Pitts are saying is that "Fags will burn in hell" is OK speech, while "Soldiers will burn in hell" isn't."

WBC is a whacked out Cult that has been at this "protesting" publicity stunt for well over 14 to almost 20yrs.

"In 1996 Phelps led a protest at the United States Holocaust Memorial Museum in Washington, D.C."

1996. Two years before Mathew Shepard.

Nothing was done then... Is Pitt also a Anti-Semite too???

Just a few other targets of WBC:
Bill Clinton's mother, Sonny Bono, Frank Sinatra, Bob Dole, Jerry Falwell, the Ku Klux Klan, the Academy Awards, Michael Jackson, Fred Rogers and Santa Clause.

Now consider me SHOCKED!?! I had no idea that Santa Clause had died. But good riddance. I never cared for that stuttering prick. He was always calling me a ho.

The point is that WBC does all this for a pathological need of attention and hate. After a decade and a half of trying, they have finally found something that just pushed the public last gay nerve.

I am always amused by how new this cult's antics seem to the wide world. The cult does not fear lawsuits or attempts to silence them, because they've been through it all before.

From 1996 to 2004, when I lived in Topeka, Kansas, where the cult is located, they picketed my church (a large, mainstream Episcopalian parish) nearly every Sunday morning, yelling some of the foulest things imaginable from across the street as we altar servers and ministers would line up outside for the opening procession. This treatment was repeated at churches all over the town, as well as every performance of the local orchestra, school graduations, funerals, parades, theater performances--basically any public event that would have an audience. They protested, and I imagine still protest, on a near daily basis. The disruption of everyday life is unbelievable.

Topeka leaders tried everything they could imagine to curtail and prevent the behavior. The impetus to solve this problem went beyond any support of queers; the city suffers incalculable financial losses because people don't want to live and work among this kind of hatred. City ordinances were passed. Every kind of law enforcement approach was attempted. Counter-protests and public service groups were created.

And yet the cult, which consists of many lawyers, has used the First Amendment to defeat all these attempts to silence them. They know this area of law better than anyone. The have the resources and patience to try every case and challenge every law that might silence them. They are the most strident defenders of free speech outside the ACLU, which has supported them directly on this topic.

They will win the legal challenges. And, by fretting and covering the process, we will give them exactly what they want--attention. The cult members don't care that we disagree. In the spirit of "there's no such thing as bad press," they only want us to keep talking about them, writing blog posts about them, and in the process making their names so ubiquitous that absolutely everyone knows their message.

I think the best approach is to stop. First Amendment law is settled and is not likely to change based on any of the current lawsuits or issues. Accept that retaining our rights means giving the same rights to those with whom we disagree. Then, deny them that which they really want most: our attention. Forget their names. Change the channel. Delete that post. Roll your eyes and move the conversation on to something else. Or, if some new aspect of this issue needs to be addressed, do so without every mentioning the cult's full name or the names of its members. Deny them another hit in the search engines.

Anything else is playing right into their hand.

A. J. Lopp | April 7, 2010 6:22 PM

I must agree with this comment 100%. The WBC problem does not have a legal remedy, it has a social one: Everyone needs to figure out very clearly what these folks are up to (that part isn't difficult), and then ignore them studiously (that part might be more difficult if it is your son's funeral they are picketing --- whether your son was a soldier or gay or neither or both).

When they first get totally ignored, expect them to escalate. Then continue to ignore them utterly and eventually they will go away.

A. J. Lopp | April 7, 2010 6:27 PM

P.S. Personally, I do not find them difficult to ignore --- in fact, I am bored into catatonia with this sort of crap.

Thanks A.J., and I also agree--these people are BORING. The whole thing is beneath the level of attention we give it here, let alone the histrionics of the mainstream media. Ignore them and eventually they'll go away. It may take a while, but better that than giving them the additional media attention they crave.

"Everyone who wants to ban a certain form of speech does so because they think people either can't handle it or because it'll hurt people's feelings. And while that's true, there's plenty of speech that fits into both categories, the alternative is letting a powerful group of people decide what we get to hear and what we get to say. There really isn't much middle ground."

Alex, great sentiment! I think you should send a copy to Ron Gold, if you can find him.

I'll happily forward it to the judge when he's being tried for his blog post!

battybattybats battybattybats | April 7, 2010 10:34 PM

It might be worth exploring the difference between other arguments based on rights in other countries.

A new book regarding freedom of speech in revolutionary France regarding Culumny is out I've heard. As well as the arguments regarding Villification.

As their is quite the battlefield on this issue internationally it may be useful to explore it internationally.

Some argue that the USA has fallen behind in understanding many human rights as it has often used its bill of rights as the beginning and end of the subject rather than considering the enlightenment philosophy that lead to it as well as the continued exploration of the subject that has occurred after it. The several U.N. declerations and covenants of human rights are far far more extensive than the USA bill.

There are restrictions on hate speech directed at groups in international treaties ... there can be legitimate constraints on speech that abuses a group or promotes hatred. While protesting a funeral is not that - I do think the US needs to revisit its absolutism when it comes to speech that breeds hate of a particular group. And yes - I think the church's proactive preaching of homophobia is a public harm. Just read the Prop 8 trial testimony about the impact homophobia has on that group of victims.

Dan Massey | April 8, 2010 2:06 PM

If you read all the comments before you got here, congratulations.

I do not consider that the right of free speech is absolute. No right guaranteed by the Bill of Rights can be absolute. All rights need to be examined in relation to each other. When one is absolute, none of the others can mean anything.

This was shown clearly earlier this year when the Supremes voted (5-4) to give unlimited and absolute free speech rights to corporations. This decision was done without considering matters long known to political scientists that would have warned the SCOTUS off of this line of insanity.

The real reason for the decision has now become clear. The majority wished for corporations to be able to directly control the election of members of the judiciary. This was a matter of personal political interest to the justices who supported it as payback to their long term advocates, mentors, and clients who put them where they are today, without any consideration of merit.

As to freedom of speech issues, you need to reconsider what you mean by "absolute". It is a very important right, but not the only one.

As to the Phelps matter, any decision there must be derived by considering how protecting Phelps' rights impairs the rights of others. I see no evidence that this issue, which is what really matters, was considered.

It's not an easy matter to deal with, but calling the right of free speech "absolute" is just plain lazy.