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.



#1 Jeff Randall on Thursday July 22, 2010 at 8:13pm

Very good article…

I despise Fred Phelps as much as anybody, BUT I also realize that he has (and should have) the exact same rights that I would demand for myself… And that is why I can never support the idea of censoring him.

I agree it’s vile what Fred Phelps is doing. I agree if they did it at the funeral of somebody I care about, I’d be absolutely livid. But my emotions should not be the basis of our laws. Protections of citizens and their rights should be the basis. Even the citizens who I (or you) find repugnant.

If we create laws today to limit his right to free speech, what is to stop somebody tomorrow from creating laws to limit your or my right to express ourselves? I would never want to unwittingly create a situation where we are no longer free to criticize the government or religion or pseudoscience or frauds or whatever we choose…

Freedom of Speech is to important to risk losing or even limiting.

#2 asanta on Friday July 23, 2010 at 2:19am

I think the best way to deal with Phelps and clan, is to treat them like a big joke. Laugh at them, Rick Roll them, don’t take them seriously. Our rage gives them the power they want. If you can’t turn them into a joke, ignore them.

#3 Jim (Guest) on Sunday July 25, 2010 at 8:53am

I loved the counter-protest organized against them at ComicCon with Star Trek characters carrying “God Hates Jedis” and robots carrying “God Hates Humans” signs.  Ridicule is a powerful weapon.

#4 Ophelia Benson on Tuesday July 27, 2010 at 3:42pm

But the issue of whether Phelps should be censored is separate from the issue of whether Mr Snyder should get damages, isn’t it?

I don’t think people should get damages for “offensive” speech, but I think it’s reasonable to keep Phelps picketers a certain distance away from the funerals. I don’t think their right to free speech includes a right to get up close and personal at someone else’s funeral.

There are already various rules and taboos in place to keep funerals from being disrupted even by ordinary traffic. Since traffic has to stop for funeral traffic, it seems like the same kind of thing, and fair, to keep picketers at a distance. Cheerleaders and rock bands are presumably not allowed to be disruptive in the vicinity of funerals, so Phelpsians needn’t be allowed to be either.

Is that reasonable? Just keeping them out of mourners’ faces? It seems so to me.

#5 Ronald A. Lindsay on Wednesday July 28, 2010 at 5:25pm

@Ophelia I do not disagree with you that reasonable restrictions can be placed on protesters, especially at funerals.  But the location of the protest is not an issue in this case.  The crazies from Westboro went to the precise location designated by local law enforcement, about 1,000 feet from the church.

#6 Ophelia Benson on Thursday July 29, 2010 at 9:22am

Thanks Ron, that’s what I thought. I was arguing (a bit) with the first comment rather than with you; should have said.

#7 Jeff Randall on Thursday July 29, 2010 at 9:33am

Since it was (seemingly) my comment you were responding to.

Phelps and his clan, from what I’ve read, were on a public sidewalk outside of the cemetery. As Ron pointed out, they were not “up close and personal at someone else’s funeral” and it was not an issue of “keeping them out of mourners’ faces”.

I agree that if the protest had been on the grounds of the church, funeral home, cemetery, etc that the owners of that establishment would have every right to kick them out. But Phelps and his group are quite smart about not violating trespassing laws or other laws related to their protests. As I understand it, they have a few lawyers in the family, and one of their goals with their protests is to get sued or to be physically assaulted so they can file a lawsuit.

As abhorrent as they are, they follow the law, and should have the same rights that you and I have to protest.

#8 Jeff Randall on Thursday July 29, 2010 at 9:35am

FYI, I had written on this specific case back in April, before it had made it’s way to the Supreme Court, if you’re interested in a further elaboration of my views:

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