[Stras]

Where do you draw the Line?
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The First Amendment to the Constitution of the United States of America guarantees certain individual rights to include the Freedom of Speech, Freedom of the Press, and the Freedom of Religion. It provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for the redress of grievances(1.).” There are privileges given to organizations, but the amendment is rather vague in how it applies to multiple individuals expressing their rights at the same time in the same location. Does Mister Brown’s right to Free Speech outweigh the Wilson Family’s right to mourn the loss of their loved one?

At which point does a religious organization cease to be protected under the Freedom of Religion and prosecuted as a Hate Group? The Westboro Baptist Church (“WBC”) is currently being monitored by the Anti-Defamation League and has been classified as a Hate Group by the Southern Poverty Law Center. Never heard of the WBC? If you have attended a military funeral since 2004, you may very well have been exposed to them. The church is led by Pastor Fred Phelps, a disbarred lawyer and his two daughters Shirley Phelps-Roper and Rebecca Phelps-Davis, who are also lawyers, with a congregation of 71 members, 60 of which are related by blood to Phelps. It appears that the church’s greatest income is through lawsuits based on infringement of their First Amendment Rights. The church runs several websites such as Godhatesfags.com, Godhatesamerica.com, and many others.

The WBC espouses a hateful message through verbal, physical, and written means in their sermons, internet web sites, and physical demonstrations, which is anti-homosexual and has led to multiple confrontations over the last ten years. Phelps and his followers frequently picket various events, especially military funerals, gay pride gatherings, and high-profile political gatherings, arguing it is their sacred duty to warn others of God’s anger. In 2004, they started protesting at military funerals carrying signs with “God hates Fags”, “Thank God for Improvised Explosive Devices (IEDs)” and many other hateful slogans. Are they expressing their rights to Free Speech under the First Amendment? One could argue yes, in the same manner as the Neo Nazi groups and the Klu Klux Klan with their messages of hate and violence. When criticized, Phelps’ followers claim protection under the First and Fourteenth Amendments. For those unfamiliar with the United States Constitution, the first ten Amendments were written and signed in 1791, also known as the Bill of Rights, quantified that these rights could not be infringed on by the Federal Government. In 1868, the Fourteenth Amendment was ratified, but it was not until the United States Supreme Court ruling on Gitlow vs New York in 1925 which held that the Due Process Clause of the Fourteenth Amendment applies the limitations of the First Amendment to each state, including any local government within a state(2.).

When Marine Lance Corporal Mathew Snyder was killed in Iraq in 2006, the WBC protested at Mathew’s funeral service, and went so far as to publicly spread propaganda verbally and on the internet that Mathew’s parents has raised a child for the devil, and taught him to defy his Creator, to divorce and commit adultery. The Snyder Family sued the WBC for Defamation of Character, Invasion of Privacy and Intentional Infliction of Emotional Distress. In Snyder vs. Phelps (2007), the judge’s instructions to the jury stated that the “First Amendment has limits, including vulgar, offensive and shocking statements and that the jury must decide whether the defendant's actions would be highly offensive to a reasonable person, whether they were extreme and outrageous and whether these actions were so offensive and shocking as to not be entitled to First Amendment protection." The jury decided in favor of the Snyder family and awarded them over $10 million dollars. This was reduced to $5 million dollars in 2007 when the WBC appealed the previous verdict(3.).

As of yet, no member of the WBC has been charged with Inciting a Riot, though many have been charged with Disturbing the Peace. In November 2007, Shirley Phelps-Roper was charged with Desecration of a Flag, and Delinquency of a Minor for allowing her ten-year old son trample the US Flag in Nebraska. Desecration of the Flag is a subject which was still being discussed by Congress in the fall of 2008 and has not been passed into law. Several states have their own Desecration of Flag laws, several of which are currently undergoing constitutional review. At the very least this group should be punished for Defamation, and Endangerment of Minors.

The First Amendment has never given an absolute right to people to say whatever they want whenever they want. In Chaplinsky vs. New Hampshire (1942), the United States Supreme Court stated that “there are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” These include: the lewd and obscene; the profane; the libelous; and the insulting or “fighting words”—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace(4.).

In Chaplinsky vs. New Hampshire, certain personal slurs and obscene utterances by an individual were found unworthy of First Amendment protections due to the potential for violence resulting from their utterance. The speech at issue in Chaplinsky came to be known as “fighting words” and was defined by the United States Supreme Court as those words “which are likely to provoke the average person to retaliation and thereby cause a breach of the peace.” Subsequent cases limited Chaplinsky’s application to words that “have a direct tendency to cause acts of violence by the person to whom, individually, the remark was addressed(5.).” This has been used in cases against the KKK, Aryan Brotherhood and I believe this line of reasoning would certainly apply to the WBC as well because they are actively provoking a confrontation with their actions.