There is a small church based in Topeka, Kansas , consisting primarily of a founder and his many children. Maybe you’ve heard of it. Members claim to have proclaimed their message in all fifty states: It is too late to pray for the good of the USA or the redemption of her inhabitants. We have ignored the mandate to repent and so we perish, increasing the population of hell with each death. Our sin? Bestowing societal acceptance on the “soul-damning, nation-destroying sodomite lifestyle.” Those who “prance around yelling about the evils” of gay marriage are just as doomed; we are all to be punished for our nation’s sin. God’s wrath is manifest in the September 11th attacks, Hurricane Katrina, and other national tragedies. The most visible efforts of this group have been its demonstrations at soldiers’ funerals, where members rejoice at American deaths on the battlefields of Iraq and Afghanistan as God’s retribution for our irredeemable corruption.
I hesitate to name the church, Westboro Baptist, here. Hate groups feed on publicity, and this group has received a lot of it in the past week. On October 31st a jury in a Baltimore federal district court ordered the church to pay $10.9 million to the father of a marine killed in Iraq for invasion of privacy and intent to inflict emotional distress, after the group demonstrated outside the marine’s funeral and posted disparaging statements about him on its website. The verdict will translate into little actual cash for the marine’s family, as Westboro Baptist has few assets. But the church calculates the value of free publicity generated by the verdict at over $10.9 billion: They boast on their website that in less than twenty-four hours their words have spread to every corner of the earth.
This church’s thirst for publicity and its legal battles raise important questions about the shape and scope of freedom of speech today. The activities of this group also raise questions about religious freedom, but First Amendment scholars focus on the speech question because any claims by Westboro Baptist most likely would be brought under the constitutional framework for dealing with public protests. Public discourse is the foundation of democratic society, and our society protects the rights of all voices to be heard, even those that are distasteful and offensive. First Amendment jurisprudence on free speech has struggled with the problem of hate groups and whether it is possible to disable their corrosive effect on public discourse without destroying robust public discussion.
When confronted with attempts by local jurisdictions to regulate public protests, the Supreme Court has prescribed content-neutral time, place, and manner restrictions as the only constitutional method of restricting the assembly and speech of such groups. States cannot regulate the content of the message expressed. Several dozen states and the U.S. Congress have introduced laws restricting demonstrations at funerals, noting the importance of respecting families in their time of grief. However, constitutional scholars have expressed concern that such measures may exceed these content-neutral requirements, and may even restrict or favor speech on the basis of the point of view of the speaker. For example, if members of Westboro Baptist can be arrested for their activities while members of a family (or invited guests such as the Patriot Guard Riders) are free to counter-protest, with signs and songs proclaiming the patriotism of the deceased, the government unconstitutionally discriminates in favor of one side of the issue and against another.
If state criminal statutes that ban funeral protests are potentially unenforceable because they violate the U.S. constitution, then civil cases like the one brought against Westboro Baptist by the marine’s family, that allege defamation, invasion of privacy, and intentional infliction of emotional distress, can be seen as a sort of end-run around the constitutional restrictions. Thus, some scholars question whether the recent verdict will withstand constitutional scrutiny.
Hate groups such as this one take full advantage of the protections guaranteed to them by the U.S. constitution. However, in order for public discourse to serve as the foundation of democratic society all voices should be heard, muffled sobs as well as angry shouts. Whether the recent verdict against Westboro Baptist is eventually upheld or overturned, one thing is clear: The marketplace of ideas has exploded into a cacophonous din of voices, with little or no effort by participants to foster either civility or reasoned engagement with issues of public import. The result is the deterioration of a common forum wherein not only controversial convictions but also the solemnity and grief of public burial rites can be expressed.