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A dangerous challenge to free speech

By Scott Tibbs, November 6, 2007

When a federal court awarded $11,000,000 to a man who sued the Westboro Baptist Church for picketing the funeral of his son, it presented what could be one of the most significant challenges to the First Amendment in our nation's history. Is "invasion of privacy" and "causing emotional distress" worth $11 million?

The Westboro Baptist "Church" had previously been known for picketing funerals of homosexuals. They picketed the funeral of Matthew Shepard after he was brutally slain in 1998, with the stated purpose being to "warn" homosexuals of God's impending wrath. In recent years, they started picketing military funerals, claiming that the death of American soldiers was punishment from God on a nation that condones homosexuality.

Do not get me wrong here. I think these people are despicable piles of human debris. Picketing funerals is a sick thing to do, an action designed to provoke a vitriolic (and potentially violent) response and designed to get as much attention as possible. Fred Phelps and his followers are, above all else, attention whores who needed a new gimmick to get media attention as the coverage of their other protests was increasingly written off. Theologically, the WBC Pharisees are much more about proclaiming their own righteousness than truly sharing the Gospel with sinners.

However, the First Amendment does not have an exception for people like Fred Phelps and his Westboro Baptist "Church". It simply states that "Congress shall make no law... abridging the freedom of speech." The 14th Amendment applies that prohibition to states as well. The fact that a federal court has punished the WBC for their speech, no matter how offensive, sets an extremely dangerous precedent for the rest of the country. And like it or not, the First Amendment does not have an exception that allows government to enforce "respect for the dead".

Will animal rights activists be sued when they picket the homes of scientists who perform biomedical research? (The Animal Defense League did that in 1998 to Indiana University psychology professors Preston Garraghty and George Rebec.) Will pro-life activists who peacefully picket an abortion clinic with a picture of an aborted baby be silences by lawsuits, even if they break no laws? What about anti-war activists who picket an Army recruiting office to discourage people from joining the military, or anti-corporate activists who picket places like Starbucks?

Some would argue that this is not a 1st amendment issue because there is no "prior restraint" and that it is a civil case rather than a criminal case. These people are simply wrong. The First Amendment does not say that there shall be "no prior restraint", the First Amendment says there shall be no law abridging the freedom of speech, period. The First Amendment also does not discriminate between civil and criminal law. The fact of the matter is that the government ordered a church to pay $11 million because some were offended by the message that church was presenting.

As I said above, the people in the Westboro Baptist "Church" are despicable piles of human debris. But it is because their speech is offensive, and because they are universally reviled that they must have the protection of government. The first and most important line of defense in free speech is the speech that offends nearly everyone and that most people want to see censored. Once you set the precedent that you can censor the most offensive speech, that precedent can be used against less and less offensive speech until everyone's First Amendment rights are severely restricted.

For those of you keeping score at home, that is a bad thing.