Defending the right to be a humongous jerk

July 29, 2006

Guest Post by Morbo

Fred Phelps, the Kansas minister known for his strident opposition to homosexuality, is widely acknowledged to be a moron.

There’s a good reason for this: Phelps is a moron. Phelps’ entire family consists of morons. (I will exempt the young children, who appear to have been brainwashed.)

But guess what — even morons have First Amendment rights.

Phelps is best known for organizing loud protests at the funerals of soldiers who died in Iraq. I’ve never been clear on his theology, but apparently he believes the nation is being punished for tolerating homosexuality and that for some reason the men and women who died in Iraq are bearing the brunt for this. (I know. It doesn’t make any sense. I even put on some rubber gloves and visited Phelps’ website to try to figure it out. I guess I’m too dense because I still have no clue.)

Naturally, Phelps’ actions aren’t going over too well. The last thing the grieving family of a dead soldier wants to see is a bunch of pea-brains across the street from the funeral home or house of worship waving “God Hates Fags” signs. Some states have passed laws to curb the Phelps family funeral protests, and now the American Civil Liberties Union has agreed to challenge one of those laws, in Missouri.

My loathing for Phelps knows no bounds. I find what he does sickening. The man is obviously deeply disturbed. Yet I must conclude that the ACLU is right, just as it was correct to defend the rights of neo-Nazis to march in Skokie years ago.

The Missouri law bans protests one hour before and one hour after a funeral. This is like saying you have free speech at 3:30 but not 2:30. It can’t possibly be constitutional. It’s a poorly crafted law that should not have been passed.

There is a better way to deal with Phelps: bubble zones. For years, aggressive anti-abortion protestors have staged demonstrations at women’s clinics. Some protestors sought to physically block access to the clinic doors. Courts have not permitted this and have allowed the creation of bubble zones around the clinics so that women may access what is a legal procedure. In other words, protestors can’t block the front doors, but they can speak out some distance away — close enough to be heard but far enough away to prevent them from impeding access.

Of course, I don’t like seeing religious fanatics screaming and waving photos of bloody fetuses at women who are already going through a difficult time, but the right to free speech doesn’t hinge on whether I like or anyone else likes what is being said. The First Amendment gives these people the right to protest at abortion clinics but not to block the doors.

Same with Phelps. He can protest a funeral but not disrupt it. I’m not an attorney, but it seems to me that bubble zones are a constitutional way to deal with him. The zones offer at least some guarantee of private space to grieving families yet still permit Phelps & Co. to do their obnoxious thing. Phelps’ behavior, as disturbing as it, is still free speech — and it deserves to be protected.

Cases like this are hard, but that’s what the First Amendment is for. It protects speech we’d often rather not hear. After all, no one is going to mind if you want to stand up and give a speech about how great America, motherhood and apple pie are.

Some conservatives cannot grasp this concept. This week, Jay Sekulow, an attorney for TV preacher Pat Robertson, sent out an e-mail appeal attacking the ACLU for taking Phelps’ case and begging for contributions to stop the group. There was a time when Sekulow at least used to give lip service to the concept of free speech. His approach these days seems to be “if the ACLU is for it, I’m against it.” The better to raise money.

For those tempted to say Phelps isn’t worth it, I would submit that controversial speech must be protected because if it isn’t, a precedent is established that can lead to an erosion of free speech generally. We simply cannot leave the parameters of free speech in the hands of lawmakers who are easily swayed by the momentary passions of the herd or passing hysterias. Before the public turned against the war in Iraq, there were plenty of state and local legislators who would have been happy to stamp out the anti-war protests. Today’s unpopular speech is tomorrow’s popular speech.

Phelps’ speech will never be popular. It still must be defended — even if you have to hold you nose while doing it.

As a devotee of Thomas Jefferson all I can do is agree. It ought to be illegal to interrupt procedures or even to violate participants right to freely assemble (for purpose of remembrance or mourning in this case).

When they hold conventions or even “public talks”, the GOP thinks nothing of declaring one-mile “free zones” with a fenced in “demonstration area”. What’s good for the gander ought to be good for the goose.

  • I don’t see the difference between your proposed bubble zones and the Missouri law. The ACLU seems to be arguing that the restriction is content-based simply because it applies to funerals or perhaps because it’s inconsistently applied (it’s hard to tell exactly), so the same arguments would presumably apply to your bubble zones. And hasn’t the ACLU opposed the restrictions on abortion clinic protesters you’re talking about?

    Could you clarify what bright line you see between your time-and-place restrictions and Missouri’s?

  • Of course his speech must be protected. The whole country is a free speech zone. Counter demonstrations are a better response.

  • From what I can tell, the difference between Missouri’s law and bubble zones is that with bubble zones, you can protest whenever you want, as long as you’re a certain distance away from the target. Missouri’s law simply says that between one hour before and after X time, you can’t protest at all in the area of the funeral.

  • So the law would be okay if it applied all the time rather than only during certain times? Space restrictions are okay as long as they’re not accompanied by time restrictions? That makes no sense to me.

  • KC,

    I’m not an attorney. I don’t even play one on TV. But it seems to me that a law that says you have no free speech between the hours of, say, 2-5 p.m. is suspect. A law that says you have free speech but you must remain some distance away from the funeral and not disrupt it might pass muster.

    Of course, I could be full of it.

    Is there a First Amendment lawyer in the house?

  • The Phelps are morons but they are highly educated morons. It’s moral intelligence they lack.

    The ACLU has integrity. Something the wingnuts have no concept of.

    One irony is that since the Phelps’ protest at military funerals they are on public property and have the right to protest. Private cemetaries could simply keep the protestors out.

    The other irony is, as Bush might say, the problem would go away if they would just stop doing that shit. Yo Bush. Shit happens.

    The Phelps are morons but they are highly educated morons.

  • I don’t think that hate speech should be protected. Agreed, there is a slippery slope here – ban one protest and you pave the way to ban far more for far less. I strongly feel though that people should have the right to attend funerals, visit an abortion clinic, etc without having to be subjected to such crap. What about the rights of the grieving? That’s why judges are paid well and given deference – they are supposed to decide what is a fair application of the law. Kudos to the ACLU for standing up for anyone and everyone, but I for one hope they lose.
    .
    In a way this shows how to degrade a valued principle: abuse it flagrantly and smear the defenders with a broad brush. By protecting Phelps the ACLU weakens its position with more value based voters. The intellectuals who think the letter of the law is more important than the spirit of the law are seen as out of touch with common decency. In the end, people will make a decision with their guts about whether something is wrong or right. If someone makes a sound, logical argument for what is wrong, then they will be perceived as wrong no matter how “right” they are.
    .
    Personally, I think it is damn stupid to have hate rallies across from grieving military families. Throwing slurs at military families at a military funeral seems almost like a death wish to me. I am very surprised that none of Phelps’s followers have been beaten to death.

  • I haven’t seen the details of the MO law, does it apply to the bikers who go to the funerals to drown out Phelps & Family?

    Re Bubble Zones: The anti abortion people were trying to obstruct the enterences to clinics, has Phelps tried to stop a funeral? Do they actually get in anyone’s face or are they just loud and obnoxious. The time they were here in Montgomery (not for a funeral) they just spent their time screaming at the counter demonstrators who screamed right back.

    Of course the ACLU should take the case, that’s why I send them money

  • Morbo, IANAL either, but as I understand it the law doesn’t say “you have no free speech between the hours of, say, 2-5 p.m.” — it restricts speech between certain hours at a certain place. Your bubble zone proposal seems exactly the same (using your phrasing, “you have no free speech in this area”) except that it applies all the time, not just to certain hours. I don’t see how that would be less of a First Amendment violation.

    Like you, I’d appreciate anyone who know more about the issue chiming in.

  • I am as near a 1st Amendment absolutist as you will find, but it is important to remember that numerous people in this scenario have various rights. A key issue in First Amendment law is the “captive audience” problem — one progressives often use to point out why prayer at graduations, for example, is so pernicious. The general rule is that I have the freedom to express myself, and you have the freedom to respond with speech of your own or to ignore me. If I stand on a soapbox in the city park and rant about the idiot president and hand out leaflets, you can walk on the other side of the street and pass by quickly, while others may choose to come over, listen longer, and join in. Everyone is free to express, and react to those expressions, without undue trade-offs.

    There is a problem when you have your right to speak, but I cannot choose to ignore you without making an undue sacrifice of my own rights (assembly, privacy, security, sanctity of property, etc.) Yes, all non-Christians could simply keep their kids from the graduation ceremony, but we understand that is giving the speaker too much power. We understand that allowing a right wing speaker to come into the theater and shout-down the movie Syriana violates the rights of the paying customers and of the private theater owner. We understand that allowing a candidate to drive up and down my street with loudpeakers at 2:00 am violates the rights to the sanctity of my own home, so we limit that activity without much of a fight.

    This strikes me as fairly similar. A funeral is a pretty unique thing, and not one that “thin skinned” greiving family members should be expected to give up as a way to avoid Phelps. It is, then, a captive audience problem. Without undue sacrifice, the greiving family and friends cannot simply walk away from Phelps speech; that would require them to simultaneously “walk away” from their last moment with their loved one. Under these circumstances, some — even fairly significant — restriction on Phelps does not seem inconsistent with the 1st Amendment, which has from the very start recognized the captive audience problem and how the creates a clash between rights.

    Perhaps a better way to deal with the issue is to simply file tort claims against him for intentional infliction of emotional distress. In most states, I suspect his funeral protests would easily meet the requisite elements.

    Or, to say “yes you can have free speech, but the 1st Amendment doesn’t relieve you of consequences for exercising freedom of speech” and let the bikers/veterans beat him to a bloody freaking pulp. Call it their way of expressing themselves.

  • . . . of course, I said all of those generalities without actually addressing the specific Missouri issue. I think a bubble zone works better than a time restriction. I also think that in law there are few (if any)concepts capable of application by rote without using judgement in the context of specific facts. For example, if someone dies who voluntarily chose to make his or her life public and who engaged in or was part of the broad public debate while alive — Al Franken, Ann Coulter — I think it is a lot harder to say the other side has no right to protest (particularly if there is a big public memorial service, for example) than when an anonymous family is privately greiving and Phelps, for no particular reason other than military service, chooses that family to protest.

  • May be a better tack would be to prosecute Phelps and friends for obscenity.

    Fred Phelps has the right to express any opinion he wishes but he doesn’t has a constitutionally protected right to force his expression on others, the same way a pornographer can shoot whatever he can think of between consenting adults and sell it but, under most jurisdictions, a pornographer doesn’t have the right to perform his creation in public or promote them on billboards.

    Phelps’ use of free speech is patently offensive and meant to offend and cause distress while lacking any serious literary, artistic, political or scientific value by the standards of any community. All that is missing to meet the Miller test is sex, but would anyone sustain that the desecration of the dead is not more offensive and harmful than sex ?

  • I am very conflicted on this sort of thing. I like the idea of bubble zones a lot – and would love to stand outside the HomoHaters Baptists church one Sunday and give them a dose of their own medicine (some God Hates Westboro Baptist signs would do nicely) in that bubble zone.

    But I also realize that if you try to utilize your free speech rights inappropriately, like, say, at 3AM in a residential neighborhood, you’re going to have some problems. And I can understand why there would be an attempt to craft legislation to define what the penalties would be if one abused one’s right to free speech in that manner.

    Thanks for bringing up the issue, and getting me to think about it.

  • It seems to me that a “bubble zone” is currently enforced in Missouri to some extent. Phelps and his followers have never been able to protest on private property such as a funeral home or cemetary unless given approval. In the recent funeral this past spring in Western Missouri that initiated this new time restriction law, Phelps was forced to picket from across the street. The signs were still visible from the funeral home, and the shouts of the Phelps family were heard, but there was distance between them and the funeral. The issue would be creating a law that extends a larger “bubble zone” over public land.

  • There are exceptions to free speech and I don’t have any problem with making funerals off limits, regardless. No time limits, no bubbles. The right to grieve in peace at a funeral seems pretty damn sacred. It really is a shame that my donations (card carrying member of the ACLU) are going to defend the indefensible.

    I am liberal, but I have my limits.

    • Comments are closed.