05/08/2010 05:12 am ET Updated Dec 06, 2017

Fred Phelps' Hatemongering and the First Amendment

Fred Phelps is a hatemonger.

On this, there is no question. It's actually about the most polite way to describe what Phelps' perceived mission in life drives him to do and say. He, and his "church" (mostly made up of members of his family) are the ones who arrive at various places and events all across the country, waving hate-filled signs which convey Phelps' belief that God hates the United States, homosexuals, the U.S. military, and dead American soldiers. He shows up at Jewish sites, gay events, schools, and other places he feels would benefit from his hatemongering. Most notably, this includes the funerals of dead soldiers. Phelps and his followers line up on a public sidewalk with signs saying things such as "God hates dead soldiers" -- which is one of the least offensive thing his signs say, I should mention (I refuse to reference any of his other messages, since I find them so personally odious). Phelps has become so notorious for doing so that a group of motorcycle enthusiasts have banded together to provide a human screen between Phelps' group and military funerals, to spare the families.

Phelps is in the news today because a Maryland family brought a lawsuit against Phelps, seeking damages for Phelps' actions at their son's funeral, and the U.S. Supreme Court has announced it will hear the case's appeal. By doing so, they open up the door to refining what is and what is not acceptable speech allowed under the First Amendment to the Constitution. While the Supreme Court may instead rule much more narrowly (on the case itself, without addressing the free speech issue), the question is worth discussing: should what Phelps does be legal?

An easy answer to the problem of Phelps would be to use a tactic presidents (and presidential campaigns) have been using of late: the "free speech zone" which is nowhere near the event being protested. The concept of giving Phelps a small caged-in public area to protest to his heart's content -- say, about two miles from the actual funeral -- is certainly an enticing one, and one with a legal precedent (ask anyone who has tried to protest a national party convention of late, they'll tell you). It would seem to be an easy solution to a thorny First Amendment problem, especially considering the anguish Phelps causes to grieving families. But, though this answer is easy, it is also wrong. The entire United States of America used to be a "free speech zone," and I hope it one day will be again. "Free speech zones" are such an oxymoronic concept in America that while it is tempting to advocate it for Phelps, just because Phelps' message is odious doesn't make the idea of a "free speech zone" right -- or any less of a fundamental contradiction to the Bill of Rights.

Of course, news announcers everywhere will drag out the phrase "yelling fire in a crowded theater" at some point in this discussion, and every single one of them will likely cite it incorrectly, since the real facts of Schenck v. United States are simply not taught in our schools. It was a bad decision, and Schenck went to jail for something that wouldn't even bat an eyelash on a blog in today's world.

But the Schenck decision was a pivotal one for the Supreme Court, as it began to refine what exactly "free speech" allows and what it does not. Some speech is not freely allowed -- incitement to riot, or overthrow the government by force, for example. Or treason, for that matter. Or even the loosely-defined "fighting words." Some speech is more free than other speech, as well (to misquote Animal Farm). There are "protected classes" of speech, which the government is supposed to be not allowed to regulate at all, and these include religious speech and political speech.

Phelps knows how to manipulate all of these categories, as he's been at his hatemongering for quite a while now, which has involved previous legal disputes. He has his own church, for instance, which cloaks (as far as he's concerned) everything he says as "religious speech." To back this up, he also knows that "political speech" is protected speech as well. Phelps himself used to be a lawyer (he has been disbarred) who took on civil rights cases, so he knows the legal landscape.

But the legal landscape is a shifting one. Phelps was the primary reason the "Respect For America's Fallen Heroes Act" was passed by Congress and signed by President Bush in 2006. It passed the Senate unanimously, and by a 408-3 vote in the House (interestingly, both Ron Paul and Barney Frank voted against it on constitutional grounds). Over a dozen states have passed similar bans on protests near funeral sites, again, as a reaction to Phelps' offensive behavior.

On free speech grounds alone, Phelps' case certainly exists in a grey area. He is using "religious" and "political" speech (both protected classes of speech) to spout what could certainly be called incitement (which is not protected). While "incitement to riot" is usually seen as someone haranguing a crowd to commit violence against some other entity, it's never really been defined as "incitement to riot" against the person speaking. The First Amendment exists not for polite, well-reasoned discourse, but for very unpopular speech. That's the whole point. The government can't ban something just because the majority of people don't like to hear it. This is why it's legal for Nazis or the Ku Klux Klan to have public marches and rallies. Other countries ban such things (Germany's laws on Nazi symbols, for instance), and even ban advocating wild political theories (such as denying the Holocaust). America, for better or worse, does not.

But laws which have (so far) passed muster with the courts do provide for a "buffer zone" or "neutral zone" where speech can be forbidden. Abortion clinics have such protections against protest. Even voting sites have a buffer zone around them, inside which no political speech is allowed. Meaning that the federal and state laws which have been written to protect funerals from Phelps may be acceptable.

As for the hate-filled speech Phelps offers up, unless the courts decide that it borders on obscenity or "fighting words," Phelps will likely be allowed to continue. The history of religious fanatics in America is a long one, going back to some of our original settlers (whom we honor by eating a turkey every November). And as I said, the more offensive any speech is (even "religious" speech), the more it is in need of First Amendment protection.

Don't get me wrong, I'm certainly not defending the utterly indefensible crackpot ravings of Phelps, on any level whatsoever. But, on free speech grounds, I must (distasteful as it is) defend his right to speak in a public place. Call me a First Amendment absolutist, if you will.

But having said all of that, the case before the Supreme Court isn't really about Phelps' right to his speech. It's about whether someone can sue him for damages. The case is Snyder v. Phelps, and involves the family of a soldier who died in Iraq. They sued Phelps and his church for "defamation, invasion of privacy, and intentional infliction of emotional distress." They were awarded almost eleven million dollars in damages in the original court case, on the invasion of privacy and emotional distress parts of the case. Phelps appealed, and first got the damages reduced to five million dollars, and then (in federal appellate court) got the entire decision overturned.

So, while there are certain free speech aspects about the case, it really comes down to whether Phelps is legally liable for damages for his speech and actions. Using the courts as a tool to stop hate groups has been done successfully before, most notably against racist "white power" groups in the Pacific Northwest. Such judgments can destroy these groups, because they can lose all their assets and property. If the door is opened up on lawsuits against Phelps by this case, it wouldn't take long for Phelps and his church to be stripped of the means of traveling around the country promulgating hatred (the group boasts it stages 40 pickets a week, and over 30,000 pickets total), because so many people would be lining up to sue him (Phelps hates a lot of people, not just soldiers, I should mention).

While not a perfect answer to Phelps and his group of hatemongers, individual civil lawsuits against him seem to me to be an acceptable answer to his provocation. I would much rather the courts rule that people can be held accountable for certain types of speech by being liable for monetary damages than I would having the courts attempt to ban such speech themselves. Because in the first case, government is only involved in the adjudication process. In the second case, government oversteps the bounds of free speech the First Amendment lays down. And if it does so, it is not just Phelps and his hatemongers who lose, it is all of us.


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