Fruits and Nuts

Free speech has to apply to nauseating bad taste, or it isn't free.

(CNN) -- A federal jury in Baltimore, Maryland, Wednesday awarded $10.9 million to a father of a Marine whose funeral was picketed by members of a fundamentalist church carrying signs blaming soldiers' deaths on America's tolerance of homosexuals.

There are enough explosive issues in this one news item to send a probe to Uranus.  To briefly sum up, the Rev. Fred Phelps and his Westboro Baptist Church believes that God finds homosexuality to be an abomination - as, indeed, the Bible does actually say.  Our nation, in contrast, no longer feels it to be such - indeed, it is becoming more and more illegal to discriminate against homosexuals in any way.

Therefore, according to the Rev. Phelps, God's judgment is upon the United States, as illustrated by Hurricane Katrina, 9-11, and all manner of other misfortunes up to and including the deaths of our soldiers in Iraq.

Of course, as bad as things may be, they can certainly get a lot worse; all these events are warning signs to us of the wrath to come.  With that in mind, the good reverend and his flock regularly appear at military funerals, applauding the deaths of the soldiers - as a (so far ineffective) warning to us to repent from our evil ways.

It's hard to know exactly where to begin in condemning this.  Even if we were to accept this view of homosexuality, God's view on the subject, and His likely response to it, surely it is hardly the fault of the soldiers, much less their grieving families.  A more nauseating, reprehensible, and counterproductive demonstration of stupidity would be hard to find.

And that's precisely why this court ruling is so appalling. Rev. Phelps' protests are disgusting and vile in every way - but in no way are they an incitement to violence.  He is not personally threatening any attack on families, soldiers, or even homosexuals, nor is he inciting others to do so (aside from God, Who in this context doesn't count.)  The statements and actions of the Westboro Baptist Church are precisely the sort of offensive, unpopular, marginal viewpoint that the First Amendment was designed from Day One to protect.

For a long time now, the KKK has freely performed marches in favor of their racist views.  Fifty years ago, these marches were large.  Violence ensued - and, increasingly, the perpetrators of violence were arrested, tried, and imprisoned for their crimes, as they should be.

Now, KKK marches tend to be very small, with the hooded nuts vastly outnumbered by protective police, who are in turn vastly outnumbered by counter-protesters decrying their hate.  Again, all those who commit violence are swiftly and rightly punished for it - but the expression of an opinion, as long as it is not accompanied by violence nor is directly calling for it, is protected.

Someday, we hope, there will be no more KKK marches, because there will be no KKK.  Not because all its members have been imprisoned for their views - the history of civilization shows that there is no better way to grow a niche group into a major force, than by making martyrs out of its leaders.  But when nutty views have the right and ability to stand on their own in the free marketplace of ideas, the free marketplace of ideas will peacefully but thoroughly consign them to the back alleys of public discourse, until they die a natural death of discouragement

If free speech is available only to popular views, then there is no free speech at all.  If a jury calls for damages because statements are offensive, then we are fast on the road to censorship of unpopular views, and that road leads where few of us really want to go.  As Justice Brandeis taught decades ago, the best response to bad speech is more speech, not censorship.

Now, it can be said that there was no censorship of their views - they are free to say whatever they like, as long as they cough up the $10.9 million or so in damages every time.  This is ludicrous on its face; again, it leads directly to free speech for the rich, and sullen silence for everyone else.  Do we really wish to be a society where freedom of the press is available only to someone who owns one?

The lawsuit argued that the family of Lance Cpl. Matthew A. Snyder had suffered invasion of privacy and infliction of emotional distress.  Doubtless this is absolutely true; but on what possible grounds can a legal award be made?  A graveyard, or at least the street outside, is a public place; speech can be unpleasant, offensive, even repellent, and yet still be free.

In fact the family of the dead soldier, including his father Albert Snyder who filed the lawsuit, never saw the protesters or their signs at the funeral - he only viewed them afterwards, on the TV news that evening.  So should the TV station be a co-defendant for "inflicting emotional distress"?

Rev. Phelps plans to appeal the ruling, and believes it will "take about five minutes to reverse that thing."  All Americans should be in full agreement with him on this point, if on nothing else, as we hope this verdict goes to where the sun don't shine.

Read other articles by Hobbes or other articles on Society.
Reader Comments

While I agree fully with your support of free speech, and the fact that they (the Westboro Church) probably gave this protest within legal parameters, I completely disagree with their correlation of the death of service member to the prevalence of homosexuality in this nation.  It is on those grounds that these people protest.

Of greater levity however, is their absolute flippant behavior toward this family who has suffered this immense loss.  Is it right for 'Christians'  to exercise their right to free speech, in this manner,  in and around a grieving family?

What happened to:

Colossians 3:12

Therefore, as God's chosen people, holy and dearly loved, clothe yourselves with compassion, kindness, humility, gentleness and patience.


1 Peter 3:8

Finally, all of you, live in harmony with one another; be sympathetic, love as brothers, be compassionate and humble.


the fact that we are to imitate God... that God demonstrates agape love, and this this kind of love is: patient, kind, not proud, does not envy, does not seek its own, always hopes, always protects  (read 1 cor 13)

Free speech does not mean that we should say whatever we want, whenever we want to?  Shouldn't we temper that with decency, wisdom and love?

In fact their message, though one of poor reason, should be expressed if they feel compelled to do so.  But do you really believe that this young man's funeral is the appropriate time to espouse such things?

November 3, 2007 12:17 AM

Additionally, while you make the point

'To briefly sum up, the Rev. Fred Phelps and his Westboro Baptist Church believes that God finds homosexuality to be an abomination - as, indeed, the Bible does actually say.'

I agree with you 100%.  But why would you bring it up in this discussion.  It is also 100% completely irrelevant.

November 3, 2007 12:42 AM

I completely disagree with your view on this.

First of all, a clear reading of Romans 1:26-32

"26Because of this, God gave them over to shameful lusts. Even their women exchanged natural relations for unnatural ones. 27In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed indecent acts with other men, and received in themselves the due penalty for their perversion.

28Furthermore, since they did not think it worthwhile to retain the knowledge of God, he gave them over to a depraved mind, to do what ought not to be done. 29They have become filled with every kind of wickedness, evil, greed and depravity. They are full of envy, murder, strife, deceit and malice. They are gossips, 30slanderers, God-haters, insolent, arrogant and boastful; they invent ways of doing evil; they disobey their parents; 31they are senseless, faithless, heartless, ruthless. 32Although they know God's righteous decree that those who do such things deserve death, they not only continue to do these very things but also approve of those who practice them."  

shows that the list of things God considers depravity includes a whole lot more than same gender sex.  Each and everyone of us who looks at this list honestly will see ourselves reflected on this list.

Additionally, the decision against the Westboro Baptist  Church was a CIVIL finding, not a criminal one.  They are not being told not to practice their First Amendment rights, they are being told there is a price for doing so when their practice of their rights infringe on the rights of others.

November 3, 2007 5:36 AM

The only nut here is the one writing this article.  There are many types of speech that are illegal.  This was *not* an issue of free speech.  This *was* an issue of infringing on privacy and providing a ton of emotional distress.

November 3, 2007 9:18 AM

First, in the essay, the example about the Ku Klux Klan is irrelevant.  The cops shackle those guys all the time when their marches take them too near a group of blacks.  Why?  Because it has the potential to produce a great deal of civil unrest.  I've been a plenty off funerals including close family members.  If people shouted at me and ridiculed me during one of those, I'd pull out a gun and mow them all down.

BUT, that being said, Ed's and Joe Mz.'s comments are as wrong as the essay.  Who gives a crap what the Bible says or doesn't say on the issue?  We don't live in a theocracy.  This is about a legal matter, not a "Biblical" one.  The Bible could fully support what Phelps does all day long, and it still wouldn't matter.  Our nation is not governed by a specific religion.

November 3, 2007 9:31 AM

There are other nuts here other than the author.  Ed and Joe (the other guy, not me) portray very well what is wrong with conservatives.  Many of them have no line between sound conservative principals and biblical doctrine.  To echo what thom said, WHO CARES what the bible does or does not say?!?!?  Stop making conservatives look like a bunch of bible thumpers!   This is a civil issue.  Save the other stuff for church.

November 3, 2007 9:48 AM

Good points here, but this will not be received well by most conservatives.  It's hard to swallow the enjoyment one feels on the hammer finally dropping on Westboro Baptist.

November 3, 2007 9:51 AM

The point of this piece is that freedom of speech is precious and MUST be protected.  Voltaire was a famous atheist, yet in a letter to a churchman, he wrote:

Monsieur l'abbé, I detest what you write, but I would give my life to make it possible for you to continue to write.

His 1906 biographer summed up his attitude as:

I disapprove of what you say, but I will defend to the death your right to say it.

Voltaire got it right.  He disagreed vehemently with churchmen, but he revered the right of churchmen to be heard.  

The FIRST tool of tyranny is secrecy, the second tool of tyranny is silence.  Mr. Chavez recently shut down the last newspaper in Venezuela that didn't agree with him.  

Some years ago, the American Nazi Party wanted to march in Skokie, Ill, a Jewish suburb.  The town officers, knowing their voters, refused to issue a parade permit.  The ACLU helped the Nazis take the town to court.

The US Supreme Court resoundingly declared that Nazis had a right to be heard and to present their message on public thoroughfares.

As recounted in this book, the Nazis had a right of free speech and the Jews had a right to live free of emotional stress and intimidation.  I can't compare the emotional stress of a Jew who survived a Nazi concentration camp watching a Nazi march with the emotional stress of a parent burying a child, but the Supreme Court's job is to sort out clashes between absolute rights.  

These scragged posts show that freedom of speech is still a contentious issue, but freedom of speech means nothing unless we grant it to people we dislike.  The ACLU lost about 30,000 members for taking the case, BUT THEY WERE RIGHT.

Voltaire's biographer put it well,

I disapprove of what you say, but I will defend to the death your right to say it.

So should everyone.

November 3, 2007 11:20 AM

There is a line between having the right to say something and inciting violence.  If the American Nazis had wanted to march right next to (or through) a Jewish event, the police would have been right to prevent them because violence would have erupted.  If the American Nazis wanted to march in a park or area that did NOT have a gathering of Jews (as was the case) than they should have been allowed to march.

Like the author who commented on the KKK, Bill's comment fails to see the important line.  The line, which the police and courts must reasonably consider, has to do with whether on demonstration is directly targetting another demonstration and whether it is reasonably likely to cause violence.  Phelps' group specifically targets suffering people and shouts at them.  That is a demonstration whose purpose is to seek out a group of suffering, emotional people (at VERY emotional times) and seeks to incite violence.  If you don't believe that, your head must be really warm under all that sand.  Watch the videos of previous demonstrations.

Oh, and furthermore, no has stopped them from doing it or arrested them.  The case was civil.  The plaintiff identified to the court the emotional strain of the situation and how Phelps' targetted an emotional moment to rile up everyone.  The jury (correctly) saw fit to bankrupt Phelps over it.

This is justice at it's finest.  Phelps didn't get dragged off by the police and beaten in some corner.  But society saw fit to punish Phelps for his indecent, vile behavior at an emotional moment.

Phelps can continue to do protests as long as he wants.  But if he crosses the line by sticking his finger in people's open wounds, he'll have to keep coming up with a lot of cash.

November 3, 2007 11:42 AM

Interesting that nobody paid attention to the FACT, brought out plainly in the court case, that Phelp's gang was nowhere near the funeral or interment.  The soldier's dad, who brought the case, never even saw them until later on the TV news.  So there was no possible issue of incitement to violence, or being "in your face" physically.

The comments illustrate perfectly why this article is correct.  On such a volatile issue, nobody agrees with anybody else, many would rather not hear an opposing view, and most consider the other side to be utterly wrong and reprehensible.  That's precisely why we have a First Amendment.

The use of civil court actions to effectively attempt to shut people down in this way is relatively new, and I believe a very bad development for freedom; maybe some Scragged author should write an article about that.

Last, the article very clearly condemns what Phelps is up to, in a whole thesaurus of insults, so it seems hardly fair to say that the article is on his side.

November 3, 2007 12:11 PM

"The use of civil court actions to effectively attempt to shut people down in this way is relatively new, and I believe a very bad development for freedom"

Um, no, it's been around for awhile.  Why exactly is it a bad development for freedom?  No one is stopping him from saying whatever he wants.  He didn't go to jail.  There was no activism on the part of any judge.  Congress didn't whip up some stupid new law on it.  A local group of his peers decided his actions infringed on privacy and created emotional distress and fined him for it.  It's a big country; you can say whatever you want.  But if go around shooting your mouth off and putting your finger in people's open wounds, you should expect your peers to get fed up.  This is EXACTLY what should have happened.  No police action, no crazy judges, no sudden rush to legislate.  Just society fining one it's crazies.

November 3, 2007 12:24 PM

I do not believe Phelps crossed the 'inciting violence' line.  I agree that he is a vile person, but i don't think he's gone that far.  I've seen plenty of videos of his rallies, and while he does shout and yell so the funeral attendees can hear him, I think it can be ignored.  Also, there's a group called the Rolling Thunder that drives around the country to the same funerals and makes a wall around Phelps' people.  They rev their motorcycles to prevent anyone from seeing or hearing Phelps' crap.  So most of the time, they are blocked off by society anyway.

That being said, I don't feel much remorse that they got hit with the $11 million judgement.  I don't believe it was the right decision, but it's hard to feel sorry for those guys.

November 3, 2007 12:48 PM

After reading comments from many viewers... i would like to offer up a follow up reply.

Bill Taylor was right on in his comments regarding Voltaire and not quieting those we disagree with.  

I also found 'Patience' comments equally good.  That the protest itself did not occur at the funeral.  It would probably serve me better to know where it occured in relation to the funeral.  If it took place in an area of town so as to not disrupt any of the funeral gathering, then i have absolutely no problem with their protest.  If it however, affected the funeral gathering or any of the participants in any way... then I disagree with their right to excercise free speech under those conditions.

Joseph, to your comments... My use of the Bible in laying construct for behavior based on the context we are describing is in no way tied to my conservatism, but is used as a result of the author using a reference to both God and the Bible inside of his/her article.  On those grounds, I can and should appeal with a biblical argument as the 'author' introduced that in laying out his/her case.

With respect to conservatism and Biblical principles being one in the same, that is certainly up for debate and different people, even within Christianity are going to have differing opinions on that topic.

With respect to 'who cares what the Bible does and does not say'  I do, but you may not.  That is fine.

When you make that very statement, to what standard of right and wrong are you refering to when you say that we should not care what the Bible does or does not say?  Why should I believe you?  If you apply this same logic through a culture and laws of that culture, you get chaos.  Everyone does what is right in their own estimation.

What do you do with the following circumstances and context:

You are on public property, burying one of your loved ones.  There are people behind you during the funeral proceedings chanting how evil and bad your loved one was and that they deserved death.  They continuted to laugh and mock, etc...

Should they be allowed to do this?

Are they wrong to do this?

If they are wrong to do this, on what basis do you make that statement?

What if their (protestors) moral framework says that it is perfectly fine for them to be there behaving that way?

Shouldbehind you at the funeral of one you loved.  

November 14, 2007 1:10 PM
I agree with this writer 100%. While the WBC is a bunch of [insert whatever creative and biting name you want here], their right to free speech is just as important as anyone else's. "Emotional distress" is one of the stupidest concepts out there. Can Christians now sue atheists like Richard Dawkins for causing them "emotional distress" through his harsh criticism? Can I sue anyone I want for calling me a mean name? Free speech goes beyond Fred Phelps and his idiotic babbling.
February 6, 2008 2:27 PM
Also, to those of you who say that he was "just fined" - being bankrupted like that would destroy you, right? I'd rather be jailed for a few nights than have to pay up $11M. It is effectively censorship - no one should put a price on free speech.
February 6, 2008 2:30 PM
Sure, Christians could sue atheists for emotional distress - it's a free country.

The issue here, in my opinion, is about what a jury finds reasonable.

Generally, I don't like the term "emotional distress" because it has no concrete definition. It can be used to litigate many, many things with various ranges of actual distress. However, I do recognize that "emotional distress" is a legitimate thing that in *some* instances should bring punishment to the defendant. I reject the notion that "emotion distress" simple never exists and is never harsh enough to be recognized - or compensated for.

That is what the jury has to decide with WBC. Is is reasonable that the emotional distress they cause families while burying loved ones constitutes enough emotional distress as to require compensation.

It is also important to note that the author of this article wrongly draws parallels between a civil and criminal proceeding. No one arrested the WBC folks or suggested that they should be. The government did not "disappear" them off into some dungeon or shackle them in irons and walk them away (however blessed a thought that might be). The government did nothing, in fact. What happened is here simply a matter of a jury of WBC's peers deciding that the emotional distress they caused another person (in civil court) was harsh, unfair and required compensation. I could draw MANY other analogies here to other civil cases.
February 6, 2008 2:38 PM
I disagree again with Sir David. A "fine" is government imposed punihsment. It is a sanction by the state. That did not happen here. This was a civil finding by a jury for personal damages.
February 6, 2008 2:40 PM
We have to be very careful here. Remember the Rodney King case, where the cops were acquitted the first time and were later tried again for violating Mr. King's civil rights? I realize that the Supreme Court has said that that's not double jeopardy, but...

Also, from what I understand, the family didn't even see the WBC folks. It was not until they saw TV coverage of the funeral and realized that WBC had been there that they sued. If they hadn't even seen the demonstration, how could they be emotionally distressed?

The trouble is that litigation is EXTREMELY expensive and it costs the defendant 3-5 times what it costs the plaintiff, particularly if the plaintiff is seeking to damage the defendant more than seeking to get money and sculpts the legal action accordingly. Our civil courts have become an out of control system for making money for lawyers; this is a DANGEROUS precedent.
February 6, 2008 3:04 PM
I agree that this is a delicate issue. That's why Juries should be educated and know what they are doing - why I support a Professional Jury system. Not to get off on another topic.

If the family could not prove emotional distress (because they weren't even there) then I agree that the jury did not do their job.

There were plenty of other cases were the families WERE present and got a face-full of WBC even while they were asking for moments of silence. This case is not about those other funerals, but my point is that emotional distress can definitely be proven for some instances. In this instance? I don't know.
February 6, 2008 3:53 PM
The question comes down to this: If you are freely allowed to say whatever you like in the privacy of your own closet, but the minute you come out in public where someone might actually HEAR you, do you have free speech? How about if, you won't get arrested, but you'll get a $1 million ticket? Of course not - that's not free speech.

The WBC protesters were in a public place, making statements that were not calling for criminal activity. That means their activities, no matter how offensive, should be allowed. Period. Anything less is unfree speech.

Now, if they were on private property, arrest them for trespassing; if they blocked the street, arrest them for jaywalking; and so on down the line; and if they were making provably untrue statements, sue them for slander/libel. But if none of those things apply, then no government organ - whether it be an official, like the police, or a popular group, like a jury - has any right to prohibit it, whether by imprisonment, or by some financial sanction that is just as ruinous.

Why should government officials even be involved in making decisions as to what views are "acceptable"? They shouldn't. Then why would we allow juries to make that decision?
February 6, 2008 4:55 PM
For some reason, Patience is assuming that all free speech is:

a) always offensive to someone
b) always found emotionally stressful by a jury.

There is no reason to assume that at all. That is what we call unreasonable.

There is no incentive to sue unless you can get something out of it. Court cases that are LOST are more expensive on the plaintiff than the defendant because the plaintiff does legwork before the defendant is even involved. The plaintiff also has to foot the bill for the discovery phases. Sometimes the court makes the plaintiff foot the defendant's bill if the case is silly enough.

The idea that any free speech in public cannot, by virtue of its location, be found emotionally stressful to others is both absurd and unrealistic.

Patience furthers clouds the issue - no views were found to be "acceptable" or "inacceptable" by the jury. That concept results from misconceptions of what actually happened. For some reason, there is this kneejerk reaction to automatically associate this case as censorship on someone's "views" when the WBC views had nothing to do with the court case at all. I repeact - the jury did not, at any time in the court proceeding, say that the WBC views were unacceptable. Nor did that have anything to do, what-so-ever, with the sentence.

Enough of what WBC "views" were. Enough of "where they said it". That's all irrelevant. Can the plaintiff prove that WBC imposed enough emotional distress as to be compensated? If they didn't even see WBC at the funeral, then probably not. But if WBC did what they have done in the past at funerals (openly deriding and mocking the family outloud for all to hear) then that qualifies to me. As far as I can gather from reading what happened in court, where it happeneds or why WBC did it was irrelevant. And, of course, that's the way it SHOULD be.

Don't confuse the issue by expanding it. It's a fairly narrow, simple issue.
February 6, 2008 5:29 PM
Why should there be any difference between public and private? If someone punches you in the face in public, you can sue them. Rightly so.
February 6, 2008 5:38 PM
It is indeed, a fairly narrow, simple issue. By exacting a crippling legally-enforced penalty on speech, whether it be by imprisonment or a huge fine, it naturally limits the freedom of the speech.

Now, traditionally, we've recognized that some limits on free speech are entirely appropriate. For example, the freedom to libel and slander is not a freedom we need or want - but that limitation extends only insofar as the libel or slander is untrue. If what you are saying is bad but true, it's not libelous or slanderous, and you can say it freely, no matter how unpleasant. Similarly, speech that is directly calling for criminal activity can legitimately be a criminal act in itself.

But here we are talking about an expression of an opinion. An unpleasant opinion, to be sure, but not a libelous or slanderous one, nor a criminal incitement. So under what logical doctrine can we penalize it? Are we now to believe that if someone is "emotionally distressed" by something you say, they should be able to sue for damages?

Don't you think that Al Gore is emotionally distressed by global warming deniers? Aren't apologists for Islamic terrorists emotionally distressed by having to hear the fact that all the world's terrorists are Muslims? What about illegal immigrants, who are certainly emotionally distressed by having to listen to calls for their expulsion?

The whole idea of "emotional distress" being a legitimate cause for legal damages, is utterly destructive of the very idea of free speech. As the article stated, the whole point of free speech is to protect speech which is unpleasant to the majority.
February 6, 2008 8:50 PM
What "fine"? There was no fine. A jury said that one citizen should repay another citizen for damaging; that's the way the legal system works - we repay debts monetarily whether they are monetary debts to begin with or not. A fine is a punishment by the government. There is no reason to force the WBC case to appear like something it is not.

As Patience has pointed out, the debate comes to whether you ultimately believe that "emotional distress" is legitamate not. That is really the bottom line. Everything bubbles up from that.

In all the cases Patience mentioned individuals have the right to take on the cost and time (and societal anger) of claiming those distresses. Nothing stops them (and nothing SHOULD stop) except the knowledge that a reasonable jury will laugh them out of the courtroom.

Again, Patience is assuming that all litigated emotional distress cases automatically end in favor of the plaintiff. Emotional distress cases are very rarely won. That's the way the justice system works - you can sue for whatever you want. You just don't win unles you can prove a reasonable case.

True emotional distress may be rare, but it exists. In fact, we should be glad to see the WBC case brought forward because it demonstrates for society one of the FEW times that emotional distress has been properly litigated. We owe the plaintiff a great of gratitude.

Oh and for the umpteenth + 1 time, free speech is not being attacked. WBC is welcome to continue doing exactly the same thing over and over. No one has fined them. No one has imprisoned or arrested them. Since the case, they have done the exact same thing at many more funerals. Now, they just don't get in people's faces directly. I guess a $11 million settlement will do that to you.
February 6, 2008 9:58 PM

The NY Times is on board! They agree with scragged.

Lamentable Speech
Strong language about large issues should be protected, even when it is hard to do so.

October 7, 2010 6:02 AM

Wall Street Journal reports that the Supreme Court says the 1st amendment protects hate speech. How could it be otherwise? If it doesn't, who decides?

March 3, 2011 7:45 PM
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