How Free Are We to Express Hate?

Note: The piece that follows was originally published in June of 2010 by Richmond.com

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The Westboro Baptist Church stretches the word “church” into a shape that boggles the mind. It is best known for force-feeding its messages about hate into situations in which they are particularly offensive. According to the Westboro gospel, the list of people that God hates includes Jews, Catholics, Muslims, atheists and gays.

In 1955 Westboro’s founder was Fred W. Phelps; at this writing he is still the pastor of the independent church based in Topeka, Kansas. According to reports most of the church’s 70-or-so members are related to Phelps.

Members of Westboro‘s congregation were in Richmond on Mar. 2, carrying their distinctive signs about God’s hates. Since then Westboro has been in local news stories, because Virginia Attorney General Ken Cuccinelli decided against supporting a lawsuit against Westboro that was filed in Maryland by Albert Snyder.

In 2006 Snyder’s son was killed in Iraq. A Westboro contingent armed with fire and brimstone placards demonstrated outside the church at the funeral. Snyder sued Phelps for invading his privacy. Snyder prevailed and was awarded $5 million for the emotional distress he had endured.

In 2009 the 4th U.S. Circuit Court of Appeals in Richmond reversed the decision, saying it violated the First Amendment’s freedom of speech protections. Furthermore, it ordered Snyder to pay Westboro’s court costs of more than $16,000. In October the U.S. Supreme Court will hear Snyder’s appeal.

Cuccinelli apparently agrees with the 4th Circuit’s decision, his office cited a concern about curtailing “valid exercises of free speech,” as its reason for choosing to make Virginia just one of two states not to file a supporting amicus brief.

Westboro grabbed the national spotlight in 1998 when some of its members appeared at the Wyoming funeral of Matthew Shepard, a 21-year-old man who had been brutally murdered. The Phelps contingent brandished signs announcing that because he was gay Shepard was burning in hell.

Since then Westboro has routinely targeted military funerals, to inform grieving families that their lost loved one deserves an eternity in hell. Why? Because the deceased had died serving a nation that enables homosexuality.

When the Westboro group came to Richmond three months ago Hermitage High School, the Virginia Holocaust Museum and the Weinstein Jewish Community Center were among its targets. At each location four people stood on the sidewalk holding up signs with messages in block lettering that said “God Hates the USA” and “God Hates Jews.” Their pre-announced appearances generated sizable counterdemonstrations, so they got the full treatment from the media -- top of the news.

The Phelps technique, while outrageous, has been seen before in Richmond. In August of 1998 an anti-abortion/pro-life group of about 50 people staged a demonstration on Monument Ave.

The occasion was the funeral of Associate Supreme Court Justice Lewis F. Powell, Jr. at Grace Covenant Presbyterian Church. The demonstrators set themselves up on the grassy, tree-lined median strip in front of the church. Dozens of uniformed police officers were there to keep the peace.

Inside the church Chief Justice William H. Rehnquist delivered the eulogy, “…[Powell] was the very embodiment of judicial temperament; receptive to the ideas of his colleagues, fair to the parties to the case, but ultimately relying on his own seasoned judgment.”

Outside the church the eager TV crews had their cameras and microphones ready. The news-makers held up giant oozing fetus placards and posters citing Powell as a “murderer.” When Powell’s family, friends and Supreme Court colleagues came outside, following the service, they had no choice but to notice the demonstration before them. Lenses zoomed in to focus on their stunned reactions.

It’s difficult to imagine the demonstrators at Powell’s funeral changed any minds on the abortion issue by creating such a spectacle in the middle of the street. It didn’t seem they were there to persuade. It did seem they were there to punish Powell’s family and friends, because the sign-waving zealots still hated Powell for his Roe vs. Wade vote in 1973.

As disturbing as that demonstration on Monument Ave. was, it was also an example of American citizens standing on public property, exercising their right to speak their minds about matters political. Such expressions are usually protected.

However, Snyder has claimed that when he was attending his son’s funeral he was a captive audience, so he couldn’t just choose to ignore the Westboro signs.

Whether the Supreme Court will reverse the 4th Circuit’s decision on that basis remains to be seen. No doubt, it was good politics for attorneys general in those other 48 states to take Snyder’s side. Still, freedom of speech rights aren’t needed to shield popular speech. They never were. And, however designed-to-injure Phelps warmed-over Ku Klux Klan language may have seemed -- in the name of religious speech -- it was definitely political speech.

If the Supremes buy Snyder’s captive-audience argument, it seems that would open the door to laws prohibiting all sorts of demonstrations in public, because particular people couldn’t easily opt out of being subjected to them. So his lawyers may have a tough job on their hands.

If the 4th Circuit’s decision that threw out the damages on free speech grounds is upheld at the highest level, Cuccinelli is going to suddenly look smarter than the AGs in those other 48 states. Such a decision would suggest Cuccinelli wisely avoided jumping on what was an easy bandwagon … just to strike a pose.

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Note: On March 2, 2011 the Supreme Court ruled 8-1 that the First Amendment protected the Westboro demonstrators in the Snyder case.

Chief Justice John Roberts wrote:

While these messages may fall short of refined social or political commentary, the issues they highlight -- the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military and scandals involving the Catholic clergy -- are matters of public import…

Among the papers Roberts and his colleagues had to consider were copies of the piece you just read. In the brief for respondent Fred W. Phelps, et al, on Page 4 there’s a footnote that cites “How Free Are We to Express Hate?” by F.T. Rea.

When I found out from a friend about being in the footnote I was delighted. It amused me to no end that the Westboro defense team had to suck up everything else I had written about them, in order to use the part they wanted the justices to see -- the account of Justice Powell’s funeral.

In July of 2010, when I posted the unusual news at SLANTblog, about my piece being cited in the Westboro brief, Shirley Phelps-Roper -- Fred Phelps’ daughter and lead attorney -- promptly commented:

It's too bad you are compelled to work so hard to distance yourself from the Word of God! This generation hates God's commandments and will NOT have that man Christ Jesus to rule over them. You are so afraid to be aligned with anything close to God that you make a fool of yourself with all your multiplying of words. How sad.

‘Mark 8:38 Whosoever therefore shall be ashamed of me and of my words in this adulterous and sinful generation; of him also shall the Son of man be ashamed, when he cometh in the glory of his Father with the holy angels.’

BTW, you should have done your OpEd piece as if you were speaking those words to God! ALL you do should be as if you are doing it unto God, because rebel, you are.

Here’s what I posted as my answer:

Thanks for the advice. And, I have a Bible saying for you, Matthew 7:15:

‘Beware of false prophets, who come to you in sheep's clothing but inwardly are ravenous wolves. You will know them by their fruits.’

Phelps-Roper never thanked me for writing the piece she used to defend her church's mission of spreading hate, nor has she sent me any more Bible sayings.

So far, this is the only time I can remember agreeing with Ken Cuccinelli about anything.

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