Fred Phelps' Hatemongering And The First Amendment
Fred Phelps is a hatemonger.
On this, there is no question. It's actually about the most polite way to describe what Phelps' perceived mission in life drives him to do and say. He, and his "church" (mostly made up of members of his family) are the ones who arrive at various places and events all across the country, waving hate-filled signs which convey Phelps' belief that God hates the United States, homosexuals, the U.S. military, and dead American soldiers. He shows up at Jewish sites, gay events, schools, and other places he feels would benefit from his hatemongering. Most notably, this includes the funerals of dead soldiers. Phelps and his followers line up on a public sidewalk with signs saying things such as "God hates dead soldiers" -- which is one of the least offensive thing his signs say, I should mention (I refuse to reference any of his other messages, since I find them so personally odious). Phelps has become so notorious for doing so that a group of motorcycle enthusiasts have banded together to provide a human screen between Phelps' group and military funerals, to spare the families.
Phelps is in the news today because a Maryland family brought a lawsuit against Phelps, seeking damages for Phelps' actions at their son's funeral, and the U.S. Supreme Court has announced it will hear the case's appeal. By doing so, they open up the door to refining what is and what is not acceptable speech allowed under the First Amendment to the Constitution. While the Supreme Court may instead rule much more narrowly (on the case itself, without addressing the free speech issue), the question is worth discussing: should what Phelps does be legal?
An easy answer to the problem of Phelps would be to use a tactic presidents (and presidential campaigns) have been using of late: the "free speech zone" which is nowhere near the event being protested. The concept of giving Phelps a small caged-in public area to protest to his heart's content -- say, about two miles from the actual funeral -- is certainly an enticing one, and one with a legal precedent (ask anyone who has tried to protest a national party convention of late, they'll tell you). It would seem to be an easy solution to a thorny First Amendment problem, especially considering the anguish Phelps causes to grieving families. But, though this answer is easy, it is also wrong. The entire United States of America used to be a "free speech zone," and I hope it one day will be again. "Free speech zones" are such an oxymoronic concept in America that while it is tempting to advocate it for Phelps, just because Phelps' message is odious doesn't make the idea of a "free speech zone" right -- or any less of a fundamental contradiction to the Bill of Rights.
Of course, news announcers everywhere will drag out the phrase "yelling fire in a crowded theater" at some point in this discussion, and every single one of them will likely cite it incorrectly, since the real facts of Schenck v. United States are simply not taught in our schools. It was a bad decision, and Schenck went to jail for something that wouldn't even bat an eyelash on a blog in today's world.
But the Schenck decision was a pivotal one for the Supreme Court, as it began to refine what exactly "free speech" allows and what it does not. Some speech is not freely allowed -- incitement to riot, or overthrow the government by force, for example. Or treason, for that matter. Or even the loosely-defined "fighting words." Some speech is more free than other speech, as well (to misquote Animal Farm). There are "protected classes" of speech, which the government is supposed to be not allowed to regulate at all, and these include religious speech and political speech.
Phelps knows how to manipulate all of these categories, as he's been at his hatemongering for quite a while now, which has involved previous legal disputes. He has his own church, for instance, which cloaks (as far as he's concerned) everything he says as "religious speech." To back this up, he also knows that "political speech" is protected speech as well. Phelps himself used to be a lawyer (he has been disbarred) who took on civil rights cases, so he knows the legal landscape.
But the legal landscape is a shifting one. Phelps was the primary reason the "Respect For America's Fallen Heroes Act" was passed by Congress and signed by President Bush in 2006. It passed the Senate unanimously, and by a 408-3 vote in the House (interestingly, both Ron Paul and Barney Frank voted against it on constitutional grounds). Over a dozen states have passed similar bans on protests near funeral sites, again, as a reaction to Phelps' offensive behavior.
On free speech grounds alone, Phelps' case certainly exists in a grey area. He is using "religious" and "political" speech (both protected classes of speech) to spout what could certainly be called incitement (which is not protected). While "incitement to riot" is usually seen as someone haranguing a crowd to commit violence against some other entity, it's never really been defined as "incitement to riot" against the person speaking. The First Amendment exists not for polite, well-reasoned discourse, but for very unpopular speech. That's the whole point. The government can't ban something just because the majority of people don't like to hear it. This is why it's legal for Nazis or the Ku Klux Klan to have public marches and rallies. Other countries ban such things (Germany's laws on Nazi symbols, for instance), and even ban advocating wild political theories (such as denying the Holocaust). America, for better or worse, does not.
But laws which have (so far) passed muster with the courts do provide for a "buffer zone" or "neutral zone" where speech can be forbidden. Abortion clinics have such protections against protest. Even voting sites have a buffer zone around them, inside which no political speech is allowed. Meaning that the federal and state laws which have been written to protect funerals from Phelps may be acceptable.
As for the hate-filled speech Phelps offers up, unless the courts decide that it borders on obscenity or "fighting words," Phelps will likely be allowed to continue. The history of religious fanatics in America is a long one, going back to some of our original settlers (whom we honor by eating a turkey every November). And as I said, the more offensive any speech is (even "religious" speech), the more it is in need of First Amendment protection.
Don't get me wrong, I'm certainly not defending the utterly indefensible crackpot ravings of Phelps, on any level whatsoever. But, on free speech grounds, I must (distasteful as it is) defend his right to speak in a public place. Call me a First Amendment absolutist, if you will.
But having said all of that, the case before the Supreme Court isn't really about Phelps' right to his speech. It's about whether someone can sue him for damages. The case is Snyder v. Phelps, and involves the family of a soldier who died in Iraq. They sued Phelps and his church for "defamation, invasion of privacy, and intentional infliction of emotional distress." They were awarded almost eleven million dollars in damages in the original court case, on the invasion of privacy and emotional distress parts of the case. Phelps appealed, and first got the damages reduced to five million dollars, and then (in federal appellate court) got the entire decision overturned.
So, while there are certain free speech aspects about the case, it really comes down to whether Phelps is legally liable for damages for his speech and actions. Using the courts as a tool to stop hate groups has been done successfully before, most notably against racist "white power" groups in the Pacific Northwest. Such judgments can destroy these groups, because they can lose all their assets and property. If the door is opened up on lawsuits against Phelps by this case, it wouldn't take long for Phelps and his church to be stripped of the means of traveling around the country promulgating hatred (the group boasts it stages 40 pickets a week, and over 30,000 pickets total), because so many people would be lining up to sue him (Phelps hates a lot of people, not just soldiers, I should mention).
While not a perfect answer to Phelps and his group of hatemongers, individual civil lawsuits against him seem to me to be an acceptable answer to his provocation. I would much rather the courts rule that people can be held accountable for certain types of speech by being liable for monetary damages than I would having the courts attempt to ban such speech themselves. Because in the first case, government is only involved in the adjudication process. In the second case, government oversteps the bounds of free speech the First Amendment lays down. And if it does so, it is not just Phelps and his hatemongers who lose, it is all of us.
Cross-posted at The Huffington Post
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-- Chris Weigant
In the generation previous to mine, Walter Lippman argued for "The Indispensable Opposition," arguing that airing "offensive" political thought was not some sort of gracious luxury, but an absolute necessity to making the wisest possible decisions.
He was in the same league as Thomas Paine who knew that "Common Sense" meant the "sense of the Commmons" where ALL ideas could be freely thrown at the Prime Minister in raucous debate . . out of which the wisest decisions would be those made by governing bodies that had had to consider all options, not just those of one . . .or two. . . parties in power ... (and unlike our governing Houses where virtually no one has to worry about being re-elected).
Just as the opposite of capitalism is not so much socialistic dictatorship as oligopolies where power and wealth (profits) are concentrated in an elite few, so the danger to free speech is not so much a noisy, malicious (even evil) Fred Phelps, but well-intentioned tinkering and elaborating our rules so that no one can speak freely, without having to [double]think whether some rule or other is being violated and there's a risk to be weighed every day in every thing everyone says.
Orwell understood that the way to kill free speech was to drape it in burdensome regulations smother it in bureaucratic legal enforcement and permeating every town, every funeral, every meeting
with people looking over their shoulders to see if "someone" was watching them.
Having said which, I have to admit I admire the candor & subtlety of Chris' last paragraph. The distinction there does have a pragmatic appeal.
-- Hawkowl
Chris,
Fantastic article. As an active duty service member, I am sickened when I see Phelps and his group thrill in the death of service member and his grieving family. But any disdain I feel for what they do or say is tempered by the importance of their protection under the first ammendment. When Phelps is gone from this earth, and his "church" has long since disbanded, the constitution will remain. That's what we really need to protect. Thanks again.
Respectfully,
IT1(SW) Scott W. Knapper
That's my beef against organized religions.
You can find justification for any deed, no matter how heinous or despicable in the texts and tenets of all organized religions...
Seems to me that, if there is a god and if he/she/it is how people make he/she/it out to be, he/she/it wouldn't "hate" anyone.
Michale....
Michale: your remarks left me nodding and smiling (that's a compliment) and I went to my "Commonplace Book" of favorite quotes for a couple to offer you:
"I can't trust a man who uses the word 'evil'
eighteen times in 10 minutes. If you're half evil, nothing soothes you more than to think the person opposed to you is totally evil."
(Norman Mailer)
"Every man thinks God is on his side. The rich and powerful know he is." (Jean Anouilh)
Your remark reminded me, most, however, of:
"Good People do not need laws to tell them how to act responsibly, while bad people will find a way around the law."
(Plato)
thanks, Michale
While I generally agree with you the real problem is that the first amendment is an oxymoron. In order to ensure free speech and to prevent government interference the first amendment requires government to regulate speech and abandon the rule of law simply by virtue of the fact that the first amendment is an entirely impractical statement of intent that has no business being codified into law.
The intent was to protect political speech vital to a functioning democracy but since political speech can encompass nearly any topic the only way to protect it is to protect all speech. Doing that, however, compromises both national security, contract law, individual privacy and justice to name just a few of the unintended consequences.
So courts are forced to carve out "exceptions" which undermine the rule of law. Since the whole point of having the constitution is to limit the scope and power of the federal government its useless if the federal government can simply ignore it whenever it gets in the way of governmental objectives—but that's precisely what we've always done because the actual literal law is absurd.
State secrets must be kept, confidentiality agreements enforced, threats of violence and treason must be prosecuted, those disrupting the speech of others must be restrained... And yet by the letter of the law under the first amendment these very necessary and vital functions are illegal.
I've said before that I'm not a strict textualist and the first amendment is one reason. I support it. I believe in it. There's no better way to word it and it absolutely needs to be the law. But, if the objective of free speech is to be achieved then speech must be regulated, abuses curtailed and, if necessary, punished. All of which are in violation of the first amendment. I simply believe we have judges in recognition of the fact that on occasion human judgments are required.
That though we'd prefer written laws that are the same for everyone and everyone understands it simply is not possible to write laws that cover every situation and are fair and just. That even though we recognize that power corrupts and government cannot be trusted we still prefer to pretend the law protects us, it doesn't. The only way to safeguard democracy and freedom is through vigilance and, when necessary, action. there is no easier way.
The founders established the beginnings of a justice system which we've allowed to deteriorate into a quasi-legal system. Our judges, our legislators all hide behind "the law." But "the law" while informing our decisions is not and never has been unconditionally binding. The constitution is not a suicide pact. Our inability to write perfect omniscient laws is not a reason to abandon law but a reason to employ judges—and to make judgments not blindly follow the law (which we never do but refuse to admit.)
Phelps abuses free speech to assault others, slander others, persecute others, and disrupt their religious practices. To protect Phelps on first amendment grounds doesn't strengthen the bill of rights it weakens it. It doesn't prevent government regulation and suppression of speech it imposes it.
The appeals court sees nothing wrong with judges summarily convicting and incarcerating belligerents for "contempt of court" when they disrupt court proceedings but its unconstitutional to prevent disruption of a funeral? So the first amendment doesn't prevent the government from regulating speech which offends the government, it protects abusive persecutors from their victims seeking justice as it was clearly intended?!
The ability of people to "interpret" "white" to mean "black" is why we have both laws and judges, and can fully rely on neither.
The hate-filled bile Phelps spews is reprehensible. On the other hand, the right to free speech is sacred. People must be free to express even views that offend most right-thinking (no pun intended) members of society, or so the theory goes.
In general, the best way to expose bigots like that is to let them talk. It's better to let these idiots say what they say, because they actually show just how screwed up, batshit insane and utterly stupid they are.
It reminds of a similar issue over the BNP leader appearing on the BBC's Question Time show. Griffin actually gained support as a result, because the show was clearly stacked against him. He looked like a martyr, which gave a racist party more credibility.
a small caged-in public area to protest to his heart's content
Does America have places like Speaker's Corner? (It's not caged...but still...)
It was a bad decision
It was arguably one of the worst decisions in SCOTUS history. If those pamphlets weren't covered by the First Amendment then nothing is. The founders intended that the people have a right to "petition the Government for a redress of grievances". Schenck was petitioning the people rather than the Government, but to quote Lincoln, Government is meant to be "government of the people, by the people". It was a massive injustice.
Back to Phelps, I wholeheartedly respect soldiers. Whenever I'm aware that someone has served, or has had a close family member serve, I make it a point to thank them for the sacrifices they've made for me and my family. American troops too (while I'm on the subject, thanks Scott. I really do appreciate you guys doing things I admit I'm nowhere near brave enough to do myself. You do your country, and her allies, proud).
Yet if people want to say hateful things about them, they have the right to do so, and it's those very rights that those brave men and women fight to uphold. If I understand Scott's point (I apologise if I misunderstood) that's it; they fight for freedom, including free speech.
Having said all that, however, I still believe that limits can be set on Phelps' conduct, without undermining the constitution. All rights under the constitution are given equal importance; where two or more conflicting rights are involved, the courts weigh them up.
If the right to privacy exists (I've contended it doesn't, but the SCOTUS has long said it does, so that's the law) and covers things like the right to contraception or an abortion, it sure as hell has to cover the right for a peaceful funeral. That's how bans on protests near funeral sites, such as the RFAFH Act, I think, are constitutional.
Germany's laws on Nazi symbols, for instance).
German laws on Nazi symbols are in large part due to wanting to atone for a dark period in their history, and one I think some Germans still feel guilt over. I once had an Austrian lecturer at University whose office overlooked a Jewish cemetery, and we noticed, my Jewish friend and I, that she was overwhelmingly lenient to him in class!
Yes, I know Austria isn't Germany, but the same logic applies (Hitler was Austrian after all).
Abortion clinics have such protections against protest. Even voting sites have a buffer zone around them, inside which no political speech is allowed.
I think both of those back up my earlier point that when you're balancing two rights you can restrict free speech. In the first it's the right to abortion (covered by the same right to privacy I'd argue extends to funerals), in the second I'd say it's probably to do with the implicit (but not explicit) right to fair elections.
But having said all of that, the case before the Supreme Court isn't really about Phelps' right to his speech. It's about whether someone can sue him for damages.
I believe they can, and there's long established law saying that just because you have the right to say something, doesn't mean you're free from all responsibility for your words. As with all rights, with rights come responsibilities, and one of those is to pay for damage you cause through exercise of your legal rights.
Michale: Well said, and that precisely is why I'm an agnostic. I've got no problem with people who are religious, but I think organised religion has a history of breeding hate of one's fellow man. It's not just Islam; the Crusades, pogroms, the many Inquisitions...
Doing that, however, compromises both national security, contract law, individual privacy and justice to name just a few of the unintended consequences.
So courts are forced to carve out "exceptions" which undermine the rule of law.
I think there's a way to rationalise those exceptions that I don't think means that the rule of law has been undermined. Not only is every single right subject to limitations (the right to bear arms doesn't allow one to shoot people without just cause, for example), but every right must be balanced against other rights.
National security is designed to protect the right to life. Freedom of contract is covered by Lochner v New York, privacy by several cases, most notably Griswold v Connecticut, and I'd say that "due process" covers exceptions in the interests of justice.
That though we'd prefer written laws that are the same for everyone and everyone understands it simply is not possible to write laws that cover every situation and are fair and just.
You're spot on. Even though I do think that this is where we rely on courts, on judges providing a "human judgement" to ensure the law is fair and just (by interpreting it, taking into account all circumstances), I also agree with you that blindly trusting the courts is a bad idea.
The second amendment is intended to provide for a means for "the people" to fight against unjust laws and tyranny, even by (especially by?) the courts.
But "the law" while informing our decisions is not and never has been unconditionally binding.
The founders themselves were revolutionaries who fought the law because they believed the law to be unjust. Why would they give birth to a country which didn't allow its citizens the same right? The short answer is, they didn't.
Our inability to write perfect omniscient laws is not a reason to abandon law but a reason to employ judges—and to make judgments not blindly follow the law (which we never do but refuse to admit.
Despite possible appearances to the contrary, I'm not a "follow the law blindly" kind of guy. I have always believed in questioning authority, political, legal or otherwise.
persecute others, and disrupt their religious practices.
I hadn't thought of the funeral as a religious practice, but you're right. That only serves to weaken Phelps' case further; the same first amendment he seeks to rely on protects the free exercise of religion too. The right to free exercise was clearly of equal importance to the founders as the right to free speech.
The ability of people to "interpret" "white" to mean "black" is why we have both laws and judges, and can fully rely on neither.
The problem with law is that words are always open to interpretation. George Bernard Shaw once famously said:
England and America are two countries separated by a common language.
You say "fanny" referring to your backside and to me it means a lady's genitals. I say the word "bum" to mean my derriere, but to you that's "homeless guy". If I said "I'm going outside to smoke a fag", you might think I'm going to go electrocute a gay guy ;-) .
Some friends of mine who used to live in Topeka told me that Phelps went from eccentric to laughingstock to public embarrassment quite a while ago, even before he decided to cast his net out to cover anything he could possibly connect with gays, or indeed anybody he thought wasn't christian enough. If that man were at all in touch with reality, he would see how he looks ranting over the corpses of slain soldiers and just stop it before he ever got sued. But if this really does go all the way to the Supremes and they do decide against him he'll just see it as proof positive that Satan has taken over America and God needs him more than ever.
If this case were only about Phelps' right to say dumbass things in public, then I suppose the appeals court made the right decision. But when I look at how the Phelps family tried to turn the Snyder family's funeral into a dog-and-pony show which really had nothing to do with that fallen soldier's life or death, I hope the fool gets pounded flat.
I wonder if Phelps is planning to argue that the suit Jerry Falwell lost against Larry Flynt will apply. When Flynt's magazine published an obnoxious cartoon about him, Falwell took him all the way to the Supreme Court, which threw his case out saying that his hurt feelings didn't trump the First Amendment. But I think this was contingent on the fact that Falwell was a public figure and should expect to be the target of satire--even stupid, adolescent satire. The Snyders were a totally innocent target, and should not be expected to put up with this.
Oh, yeah, one more thing. Just because Fred Phelps has a right to scratch his itches in public the media are under no obligation to enable him to display it.
But I think this was contingent on the fact that Falwell was a public figure and should expect to be the target of satire
Yep, it was. The holding was that the first amendment didn't allow for damages to be awarded to public figures for hurt feelings. Such people must be:
intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large
Don't see the families of fallen soldiers as qualifying under that.
OK, don't have time to answer all of these tonight, but wanted to say "Welcome" to the newcomer here, Scott and say thanks for the comment, since it distills precisely the feelings I have. Freedom is worth fighting for, even if it means the freedom for crackpots to rant and rave their lunacy on the streetcorners at times. Could not have said it better myself.
And thank you for your service, by the way.
-CW