Good Thought, Bad Call

A family sued the Westboro Baptist Church for disrupting the funeral of his son, a U.S. Marine killed in Iraq, and won a significant verdict.

I have a very hard time feeling bad for the defendants. The excerable Fred Phelps and his extended family of aggressively offensive minions deserve the scorn, ridicule, and contempt of decent human beings everywhere. You do not go to the funeral of a war hero and loudly praise God for killing the man as a sign of the truth of the proposition that “God hates fags.” I don’t care how much you think that’s what God really thinks. It’s simply indecent. Let the family mourn in peace.

At the same time, I can’t see how the First Amendment does anything but prohibit exactly this kind of verdict. There is no doubt that Phelps and his minions are — crudely — expressing a protected opinion about religion, politics, and society. They have a right to do that and a state cannot force them to pay for the exercise of that right.

I take comfort in the fact that Phelps, like so many other scuzzy products of the low level of American political discourse, can both enjoy the protection of the cherished rights we Americans stand for, while at the same time be robustly despised. People associated with major free-speech cases are pretty much a bunch of scuzballs. Paul Cohen is perhaps the most savory among them, and his free speech problem was that he wore a leather jacket that said “Fuck the Draft” while in the Los Angeles Superior Courthouse. Turns out, he can’t be sent to jail for that. Moving a bit down the food chain, we find Larry Flynt, who ran a parody ad in Hustler Magazine accusing Jerry Falwell of, among other things, a drunken act of incest with his mother in an outhouse. Turns out, in order to recover money, Falwell would have had to have proven actual malice towards him rather than political commentary, and because no reasonable person would have taken the parody ad as actually portraying the truth, he could not recover damages. We can go further back the evolutionary ladder towards the primordial ooze looking at guys like Clarence Brandenburg, a leader of the KKK in Ohio, and the Minnesota cross-burner Robert Viktora.

The point is, freedom of speech isn’t for people who say things that are polite and enjoy a lot of popular acceptance. Freedom of speech is for people who are likely to be punished for what they say. That tends not to be mainstream speech. The reason we have freedom of speech is because it’s impossible to draw a line between Fred Phelps and Jerry Falwell; there is no objective way to say that Phelps has gone too far because soon enough, everyone who disagrees with the majority has gone too far. We have to let monsters like Phelps say these terrible things because if we don’t, who’s to say when a candidate for political office can or cannot be jailed for saying that the war should end?

So it sucks, but we have to void the verdict and give Fred Phelps and his ilk a meaningful opportunity to express themselves. We don’t have to like it, but we do have to do it.