The Supreme Court just overturned the verdict against Fred Phelps and the Westboro Baptist Church, and upheld their right (in limited circumstances and with reasonable restrictions) to picket funerals.
It therefore seems like a good time to reprint this piece, written in 2007 when the original verdict against Phelps came down… explaining why, with great personal revulsion and reluctance, I agree with the Supreme Court.
But it looks like I do.
Dammit, dammit, dammit.
He — or more accurately, his church — was recently ordered to pay nearly $11 million in damages, in a civil suit filed by the father of a soldier whose funeral Phelps picketed. The suit was won on the grounds that the picket constituted “invasion of privacy and intent to inflict emotional distress.”
And I’m finding myself very disturbed by this.
Don’t get me wrong. I am feeling a certain amount of visceral Schadenfreude about the decision. I won’t deny that. As Molly Ivins once said, “Mama may have raised a mean child, but she didn’t raise no hypocrites.” But as much as I personally enjoy seeing the bastard suffer, I am far more disturbed by the extremely chilling effect that this decision could have for freedom of political speech and expression.
For all of us.
And that’s a whole lot more important to me than my personal Schadenfreude.
And when it comes to political and religious speech, I think the infliction of emotional distress is — and should be — a guaranteed, First Amendment-protected right.
Take a look at my Atheists and Anger piece. And take a look at the deluge of comments. 749 comments as of this writing, and still climbing. [Update: 1653 comments as of 3/2/11.] Almost half from people who were very emotionally distressed indeed by the piece. I knew when I wrote it that the piece would inflict emotional distress on a lot of people (although I didn’t quite expect the deluge)… and I wrote it anyway.
I want to be able to write like that again without being sued.
Not a perfect example, I’ll admit. People come to my blog voluntarily (although some of them seem to have forgotten that fact), so it could be argued that I didn’t inflict anything.
And if this ruling stands, I might not.
And they’ll be right to do so.
I mean, I think that. I’m saying that right now. And I’m queer.
If you want to make an argument that this ruling doesn’t violate the First Amendment, then I’d be very open to hearing it. I’m the first to admit that I’m not a legal or Constitutional scholar, and it’s possible that a reasonable case could be made that the Phelps protests are not protected speech under the First Amendment.
But I’ve seen too many arguments on this topic that say, “Free speech isn’t an absolute right, there are limits, look at libel laws, fraud laws, etc.”… without making any argument for why this particular case should be one of those limitations. Other than just, “The speech is hateful.” So far, nothing I have read on this particular case suggests any interpretation other than, “the plaintiffs are getting $11 million because they were upset by the content of Phelps’s speech.”
Deeply upset, and rightfully so. I get that. But again, that is exactly the sort of situation that the First Amendment is meant to protect.
And I’ve seen too many arguments on this case that essentially say, “First Amendment, Shmirst Amendment — I wanna see this bastard go down.” I would respectfully like to suggest that that is one lousy argument. The First Amendment is not to be casually tossed aside when it happens to protect a repulsive creep who we want to see fry.
But once again — that’s the whole point. The First Amendment to protect speech that makes people profoundly angry and upset.
Yes. We do.
We have to stand up and defend anyone who’s trying to communicate an unpopular message that profoundly upsets people. That includes a lot of horrible, evil people with repulsive ideas. But that’s the whole point of the First Amendment. It doesn’t exist to protect popular speech. It doesn’t exist to protect Cute Overload. It exists to protect speech that makes us want to vomit.