It's hard to describe
the views of Rev. Fred Phelps without feeling soiled by the association,
but I'll do it anyway. He attests that God is disgusted with America's
tolerance of homosexuality. In his view, the Almighty is punishing
the nation by using improvised explosive devices (IEDs) to kill
American troops in Iraq. God wants our soldiers dead.
Phelps, pastor of
the Westboro Baptist Church in Topeka, Kan., is not content to
deliver this message to his congregation. He also communicates
it in the least welcoming venue he can find: the funerals of men
and women who died in combat. He and his parishioners have staged
protests at more than 60 military funerals, holding signs with
messages like "Thank God for IEDs" and "God Hates
These vicious demonstrations
have elicited a predictable but mistaken response: demands that
they be outlawed. Kansas has passed a law banning such protests
for one hour before a funeral begins and two hours after it ends.
Illinois Lt. Gov. Pat Quinn is pushing a law requiring demonstrators
to stay far away from such a service.
Quinn sees the issue
as simple. "No grieving military family should be subjected
to vile epithets and signs at the funeral service of their loved
one who has made the ultimate sacrifice for our country,"
he declares. His bill, he says, would merely uphold "the
First Amendment religious rights of families to bury their dead
Some parts of the
bill do exactly that -- making it illegal for protesters to block
access to funeral parlors and churches, and restricting the sound
levels of protests. But the concern is selective. The bill doesn't
prohibit rock bands or motorcycles from making noise near a funeral
-- only protesters. The heart of the bill is meant to circumvent
the First Amendment, not uphold it.
One section forbids
any protest, no matter how quiet or unthreatening, within 300
feet of a building where a service is being held, from half an
hour before it starts until half an hour after it ends. Another
forbids signs featuring "veiled threats" -- which could
include the message that God will kill Americans if they don't
change their ways.
The obvious goal
is to stop demonstrators from presenting mourners with a message
they may find deeply offensive. But the whole reason for the First
Amendment's guarantee of freedom of speech is to protect unpopular,
obnoxious and even horribly vile messages. Messages that are popular
and palatable, after all, don't need constitutional protection,
since they are in no danger of being censored.
No one would seriously
argue that the government can forbid Phelps to say "Thank
God for IEDs" from his pulpit, in a public park, on a streetcorner
soapbox or at a political rally. But the intent of these measures
is to prevent him from saying it, even on a placard, at the site
of a military funeral.
Why? Because the
message can only wound the feelings of the family and friends
of the deceased. It's reprehensible of Phelps to go out of his
way to add to their trauma. But as University of Chicago law professor
Geoffrey Stone puts it, "There is not a funerals exception
to the First Amendment."
Granting one exception
would lead to others. If we silence demonstrators to protect us
from emotional upset at funerals, what's next? Protecting us anytime
we visit a cemetery? On our way into Sunday worship? When we're
entering a hospital? Arriving at a psychiatrist's office?
Once we decide citizens
should be free of unwanted messages in some public places, we
invite censorship whenever anyone takes offense. Civil rights
activists wouldn't have been permitted to jar the sensibilities
of white Southerners. Antiwar demonstrators would be kept away
from the Pentagon. Nazis wouldn't have been allowed to march in
Skokie. Victims of priestly molestation would have to stay away
from Catholic churches.
It's no justification
to say Phelps could exercise his right to protest at other places
and other times. Part of the right to free speech is the right
to decide when and where to speak in order to achieve the desired
impact. I think his message is wrong. But if it were right, who
would need to hear it more than those mourning a soldier's death?
When Americans enacted
the First Amendment, they agreed that none of us has a right to
avoid being offended. If we had, a tranquil silence would fall
over all the subjects that we now debate so vigorously and indecorously.
The silence of the graveyard.
2005 Creators Syndicate