Today - And Today Only - I Root For Fred Phelps

The gay-bashing folks of Westboro Baptist Church had their day in the Supreme Court today, contesting a lawsuit that would force them to pay millions of dollars in damages for demonstrating near a military funeral.

The church's actions are distasteful in the extreme. But it's important to note that a number of news organizations -- including the New York Times -- have weighed in on the side of the church. Limiting Fred Phelps' ugly free speech, you see, might have real consequences for the speech the rest of us express and hear.

Respondents were found liable for millions of dollars in damages for intrusion and intentional infliction of emotional distress based solely on their publication of offensive religious and political opinions -- opinions which the Petitioner encountered not at his son's funeral, but only several hours later by watching news reports, and then weeks later after conducting an online search. Imposing tort liability for such speech will chill the activities of all who speak or publish on controversial issues.

In other words, the family didn't actually encounter the Phelpses at the funeral. But they knew the Phelpses were out there, somewhere near -- 1,000 feet away, in compliance with funeral picketing laws -- being offensive. In fact, the family is claiming to have been intruded upon because they found offensive material by searching for it on Westboro's web site. With all due respect to the family, that's a really lousy foundation to start restricting free speech rights: It doesn't really punish the Phelpses for intruding on their privacy, but for expressing repugnant opinions. That's not how it is supposed to work in America.

Either you believe in the First Amendment, in other words, or you don't. Read the whole brief, and you'll get a sense of how silencing Fred Phelps might be a step down the slippery slope to silencing all of us.

Michael Smerconish is wrong about Fred Phelps

I really don't want to be in the position of continually defending professional homophobe Fred Phelps. He's an evil man with an evil belief system who has brought added grief to hundreds -- if not thousands -- of people by picketing funerals with his "God Hates Fags" message.

But I believe that the First Amendment give Fred Phelps the right express those views -- no matter how odious, no matter how provocative the time and place of his expression. Michael Smerconish, writing in today's Philadelphia Inquirer, disagrees.

By picketing Lance Cpl. Snyder's funeral, didn't Westboro Baptist infringe upon family members' First Amendment right to freely exercise their religion? Which on March 10, 2006, took the form of a burial service at St. John's Catholic Church in Westminster, Md.

And because the Westboro demonstrators weren't protesting on a street corner or in a public park, it could also follow that they infringed upon the Snyders' right to peaceably assemble for that private funeral.

The point is that while Phelps and his flock may believe they have a constitutionally protected right to protest at a funeral, that right should not come at the expense of the Snyders' right to peaceably gather at a Catholic funeral. Especially when that practice involved mourning the death of an American hero.

"When the Fourth Circuit decided in favor of Phelps against Mr. Snyder, implicitly they decided that Mr. Phelps' rights were more important than Mr. Snyder's rights," Sean Summers, the York, Pa., lawyer representing the Snyder family, told me in a phone conversation last week. That should not stand.

Get past Smerconish's troubling implication that Fred Phelps' rights -- and by extension, our rights  -- are somehow less valuable when they come in conflict with the desires of a military family. Smerconish's argument is that the Snyder family was less able to exercise their own rights to religion and peaceably assemble because of the Phelps protest.

And I don't think that's true. The funeral still happened. The Snyders still assembled. They still gave their son a Catholic service. It appears that they exercised their Constitutional rights fully -- but want to deny Phelps the opportunity to do the same. And I don't blame them -- Phelps' protests truly are execrable -- but that doesn't make them right.

It bears repeating at every opportunity: The First Amendment protects all variety of assholes, troublemakers, demagogues and rabble-rousers. It doesn't just protect popular speech because, well, popular speech doesn't really need protecting does it? The First Amendment protects even Fred Phelps. Because of that, it protects us all.