The right eloquence needs no bell to call the people together and no constable to keep them. ~ Emerson

Friday, March 4, 2011


Reverend Phelps’s Speech Is Protected But Still Pornography

The Reverend Fred Phelps, pastor of the tiny far-right Westboro Baptist Church of Topeka Kansas is not a happy man. He and his followers believe (relative) tolerance of homosexuality within the United States displeases God so much that U.S. military deaths in Afghanistan and Iraq represent divine punishment for our sins.

As a demonstration of their outrage, the Westboro congregation pickets military funerals. They hold signs and shout out slogans, such as “Thank God for dead soldiers,” “You're Going to Hell,” “God Hates the USA,” and “Thank God for 9/11.” They are scrupulous about obtaining permits and following all rules/restrictions imposed by local authorities.
Two pornographers: Larry Flynt, Hustler
magazine publisher (left) and Fred
Phelps, Westboro Baptist pastor (left)

In 2006, Phelps and his faction showed up in Westminster Maryland for the funeral of Matthew Snyder, a Marine Lance Corporal who died in a non-combat related vehicle accident in Iraq. Westboro kept a thousand feet away, as required, but they drew passionate counter-demonstrations as well as the usual media circus. As a result, heavy police presence was required to maintain order and the funeral procession ultimately needed to be re-routed.

Subsequently, Albert Snyder, Matthew’s father, inadvertently came upon a poem on the Westboro Church website attacking his wife and himself for having raised their son immorally. The poem taunted that Matthew as suffering in Hell as a result. That was too much for Snyder. He filed a lawsuit accusing Phelps of intentionally inflicting emotional distress. A federal district judge agreed, awarding Snyder $11 million for his pain and suffering.

However, the Fourth Circuit Court of Appeals reversed this decision, ruling that Phelps’s First Amendment Rights trumped Snyder’s distress. On Wednesday, the Supreme Court agreed. Its 8-1 ruling in Snyder v. Phelps is consistent with its position on free speech over recent decades. Nonetheless, it is destined to go down as one of its most unpopular. Snyder spoke for a large chunk of the nation’s populace when he told reporters, “My first thought was, eight Justices don't have the common sense God gave a goat. We found out today we can no longer bury our dead in this country with dignity.”

Forty-eight state Attorney Generals, forty-two U.S. senators, and numerous veterans filed amicus briefs urging the Court to shield funerals from Westboro’s “psychological terrorism.” In his vigorous dissenting opinion, Justice Alito felt it was more than clear that Phelps was guilty of conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” The resulting distress to Snyder was “so severe that no reasonable man could be expected to endure it.”

Writing for the majority, Chief Justice Roberts argued that Westboro’s demonstration, although repugnant in content, met three important standards for protected speech. First, it occurred in a public space. Second, it was done peaceably (by Westboro) under the restrictions imposed by local authorities. Third, and perhaps most important, the group’s presence at many other funerals and public events characterized that day’s demonstration not as a specific attack on Matthew Snyder but part of ongoing public discourse over homosexual rights/tolerance within this country.

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” Roberts quoted from the Court’s 1989 decision in Texas v. Johnson. “Speech is powerful,” he concluded, able “as it did here – [to] inflict great pain.” Andrew Cohen, legal analyst for The Atlantic, maintains Americans should find this decision “reassuring, not depressing.”

“If we all liked everything about what the Constitution promised, or required, or even permitted, it would be a greeting card or an anthem instead of a touchstone.”

Americans seem unconvinced. Many are livid about the intrusion of privacy that Westboro’s demonstrations impose, particularly into something as solemn as funerals and ones for heroic soldiers at that. Some liberal free speech advocates, while applauding the correctness of the decision, are skeptical of Roberts’s motives. They speculate that he and other Court conservatives were sympathetic to Phelps as a right-wing Christian attacking the harmful influence of homosexuality on mainstream American culture. They wonder whether the Court would have been so friendly to left-wing extremists.

In fact, they already have done so. In the 1988 case Hustler Magazine v. Falwell, the Court ruled 8-0 (Justice Kennedy recused himself) that a parody of Reverend Jerry Falwell by publisher Larry Flynt, which Falwell found offensive and hurtful, was protected speech. Roberts used it as a basis to establish the First Amendment could serve as a defense in suits for intentional infliction of emotional distress and referenced it repeatedly in his opinion. Perhaps he found some perverse pleasure in doing so but he was appropriate and well within his rights citing it.

Indeed, I tend to see Phelps less as a metaphorical terrorist and more along the lines of a pornographer, such as Flynt. Both men are highly political, both are attention whores, and both gained fame by distributing materials objectifying the sanctity/beauty of human life/bodies. They pander to an all-too-human weakness that draws us to perverse vulgarity even as we express moral outrage over it.

It is understandable that so many might feel the Court is in violation of common sense and common decency with their decision. Law exists to protect rights as much as promote them and Snyder seems the one in need of protection in this case. Yet what the Court was trying to do, hard as it may be to accept, is protect Snyder’s right to denounce the position of Phelps and his clan in the same specific, graphic, and unflattering terms that Westboro used during his son’s funeral, if so desired.

As Roberts wryly observed, “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro.” This is why Law sometimes needs to protect us from our own “common sense.” Too often, opinions/views/ theories denounced by the majority as “obviously wrong” have subsequently proven perfectly logical and accurate if highly unpopular at the time. Unfortunately, tolerance means even pornographers sometimes receive legal protection.

It is one reason why democracy is hard, even painful sometimes. However, the answer is not to tear down the Law but to recognize pornography, while protected, as exactly what it is. By attempting to sue Westboro and losing, Snyder not only cost himself monetary expense but also gave Phelps and his lawyer daughter the opportunity to wrap themselves in the American flag as some sort of emblem for democracy.

In 2007, Phelps and his congregation traveled to York Pennsylvania and picketed the funeral of Army Private First Class Zach Clouser, after he was killed in Iraq. His mother, Deb Etheridge, found their message disgusting and hurtful. Yet she decided the best way to honor Clouser’s memory was to send a friend who thanked the them for exercising rights her son believed in and died for. The Westboro protestors responded by trampling an American flag in order to show their belief in God’s disdain.

There was no question that day over who the patriot was and who the pandering pornographer was. It is clear in my mind the Supreme Court made the right decision on Wednesday, protecting Snyder even in the midst of his immediate pain and outrage. However, it is equally clear to me that Phelps is a vile piece of shit. I thank God I live in a country where the Law protects my right to say so to as many as possible.