Truly Offensive Speech

July 22, 2010

The Center for Inquiry has just announced another contest in connection with our ongoing Campaign for Free Expression. In this contest, we will award prizes for the best short (30-60 second) videos on the importance of free expression. More details here.

A theme of our Campaign for Free Expression is that speech should not be prohibited or unduly restricted merely because some may find it offensive. Claiming speech is offensive cannot be a sufficient justification for preventing individuals from expressing their views. A pending Supreme Court case puts this principle to a severe test because in this case some of us may be sympathetic to the plaintiff, who is arguing he was so offended by the speech of others he is entitled to damages. In Snyder v. Phelps, the plaintiff is the father of a deceased serviceman who claims that protesters from the Westboro Baptist Church caused him emotional distress by picketing his son’s funeral with various signs, including a couple of signs that stated “God Hates You” and “You’re Going to Hell.”

For those of you who have been out of circulation for a while, members of the Westboro (Topeka, Kansas) Baptist Church have engaged in widely publicized picketing at a number of military funerals in recent years. Church members usually station themselves as close to the memorial service as police will allow and they carry signs proclaiming that “God Hates Fags,” “God Hates America,” “Thank God for Dead Soldiers” and so forth. The bizarre view of church members is that the United States is deservedly incurring God’s wrath because of our tolerance of gays. God manifests His wrath, in part, by killing U.S. soldiers.

Is this speech offensive to some? Well, it offends the heck out of me and I have only read about it and seen some video clips. The Westboro “theology,” if one can call it that, manages to be both despicable and ludicrous. Most people with a smidgeon of rationality fervently wish the church members would slither back to Kansas and never be heard from again. But as appalling and nonsensical as their speech is, it deserves protection. Yes, many of us find their views deeply repugnant, but that cannot justify suppression of their speech. The same standard could be used -- has been used -- to justify suppression of atheist views. And an award of damages to a private individual on the grounds of offensiveness can suppress speech as effectively as outright government censorship. The jury in Snyder v. Phelps awarded the father over $10 million (this verdict was later overturned on appeal).

As you might expect, the father and his attorneys are well aware of the fairly broad protection given to speech by the First Amendment.  They maintain, however, that the speech of the Westboro church members, at least in part, did not address matters of public concern.  Instead, the speech was directed solely to private individuals and was intended to inflict emotional harm.  The father focused on the signs “God Hates You” and “You’re Going to Hell,” arguing these were directed at him personally. 

American law does limit outrageous speech directed at private persons when such speech is clearly intended to inflict emotional distress (e.g., someone maliciously and falsely informs you that your mother was caught stealing and killed herself).  But one cannot squeeze the Westboro fanatics into the private tort mold.  They are clearly engaged in a very public, prolonged campaign, criss-crossing the country to address the nation as a whole.  The funeral of Mr. Snyder’s son was only the vehicle through which they expressed their spittle-flecked message of hate on that particular day. 

No doubt, Mr. Snyder was offended and outraged.  Any parent would be.  But the freedoms his son sought to preserve extend even to those who abuse their liberties and do not deserve them. 
Argument in this case will be heard on October 6.