Dead soldiers and religious freedom

Not that I want to encourage more coverage of Westboro Baptist Church, but this was worth bringing up.

Westboro — you probably know them as the proprietor of — got a lot of attention this weekend on two separate though related fronts (and on a third one tmatt discussed yesterday). What’s surprising is which of the main two stories got more play.

The big news was that Westboro’s angry band of picketers traveled from Kansas to New York to protest outside a Brooklyn high school and then a Long Island synagogue. “Hate-mongering Kansans begin their assault on NY Jews” was the headline from the New York Post. Newsday offered a little more about the Great Neck protest:

The Westboro demonstrators carried signs declaring “God Hates Jews,” “America is Doomed,” “God is Your Enemy,” and others using a derogatory term for homosexuals. They also sang songs and shouted at protesters and passing motorists.

What I couldn’t figure out was why Westboro was picketing Jews. (Rabbi Bradley Hirschfield takes a stab.) Seems like an unusual combination of democratic tools for social change and medieval attempts at religious coercion. But the articles didn’t really address that. It’s not important. This wasn’t the important news concerning Westboro.

What was — and was much harder to find coverage of outside of Kansas and this brief in The New York Times — was an appellate court ruling that Westboro’s practices of offensive picketing is constitutionally protected. The locus quo was a soldier’s funeral, the saga of which Daniel Pulliam discussed last year. Now, the news from the Topeka Capitol-Journal:

A federal appeals court on Thursday favored civil rights over popularity when it reversed a civil lawsuit won by the father of a fallen U.S. Marine against members of Westboro Baptist Church.

A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled that protest signs carried by church members in March 2006 outside the funeral of Marine Lance Cpl. Matthew Snyder in Westminster, Md., were protected by the First Amendment.

With that, the $5 million judgment and lien on the church’s building and law firm in Topeka have been dismissed.

Calling from New York City where she was protesting at the United Nations building, church spokeswoman Shirley Phelps-Roper said she was happy Albert Snyder, the Marine’s father, had filed the lawsuit.

“If he hadn’t put us on trial, we wouldn’t have exploded around the world,” she said of the media exposure.

That is, sadly, quite true. This also might earn Westboro the immortality of a lawschool casebook. But why, for what seems like such a significant ruling, was there so little coverage?

RNS filed a shorty, and the Associated Baptist Press covered the boilerplate and Westboro background and picked out this choice quote from the appellate court:

Paraphrasing a ruling in another case invoking the First Amendment, the court said judges defending the Constitution “must sometimes share their foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply.”

The Baltimore Sun, the Snyder’s local paper, played this story surprisingly straight, reporting on the ruling, quoting Westboro, quoting the Snyder’s attorney, who plans to appeal, and then closing with this quote from Margie Jean Phelps, a Westboro attorney and daughter of founder Fred Phelps:

“The amount was set with a goal, and the goal was to silence us,” said Margie Jean Phelps. “In this country, you don’t get to claim damage over words you don’t agree with. … Because we’ve trained a nation of crybabies doesn’t mean we change the law.”

What I don’t understand from the coverage is why this is an appropriate means of religious communication. The court only ruled that it was legal. But is it expedient?

It seems to me that a disservice is being done when journalists write Westboro off as a bunch of wacky fundamentalists without digging through the noise of their offensiveness to identify the elements of their basic approach that also bear scrutiny. So Westboroites believe God is sending home dead soldiers to punish Americans for accepting homosexuality (and Jews) — how in the world do they get from this belief to religious obligation that they share it at funerals?

To me, the issue doesn’t seem to be so much religious as it is free speech shrouded in the double protection of speech and religion. If both are essential, OK. But how about asking why.

The above clip from “Hannity & Colmes” is painful, and the Westboro Baptist comments thanking God for 9/11 and dead soldiers only make it more so.

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  • Brian

    What I still really don’t understand about these monsters is why the “fighting words” doctrine doesn’t hold? There’s no way that a reasonable person can say what they say and not expect to be assaulted (in fact, I believe they’ve counted on that in the past to sue for damages after being attacked). So even though the courts say they can say and do what they do, wouldn’t anyone who attacks them be protected by that? Anyone know the details of “fighting words” and why it doesn’t mean what I think it means?

  • Brad A. Greenberg

    I think the court tried to answer that with it’s comment about how the protests are offensive but merely hyperbolic. I had the same question. How is this different than Chaplinsky? Not sure.

  • tmatt

    And, of course, there is the case I cited earlier — the famous Neo-Nazi march through the Chicago suburb inhabited by an unusually large percentage of Holocaust survivors. That was a case in which the ACLU backed the NNs and, as painful as it is to say it, with Constitutional cause.

    The wrinkle for me is that Westboro is primarily doing this in an attempt to get sued and, thus, collect attorney’s fees when they win. They PROVOKE nonconstructive anger for a living.

  • Peter

    These “Wack-a-doo’s” attempted to disrupt a funeral Brooklyn New York for a US Marine in August 2006! The “Freedom Rider’s” Motorcycle Club arrived, and without saying a word the Westboro Baptist Church members ran like a puppy dog, in six directionsat the same time! A great scene, watching these “Sissy-Mary’s” run away!!!

  • Brian

    I thought the “Illinois Nazis” case was about whether they could be denied a permit to hold a parade or march because of their offensive views? That doesn’t seem to apply here. These cretins just want to come by someone else’s funeral and make @##!’s of themselves. I suppose they’re free to do so as long as they’re not infringing on anyone’s property (although even that’s not at all absolute, even by recent Supreme Court precedent), but it also seems to me that “fighting words” should protect anyone who wants to shut them up, considering the objectively offensive (by their own admission, of course!) nature of their speech.

  • Jon in the Nati


    I’ll do this quick… I just looked up some of my old law school notes, and they are nothing like I remembered…

    FIGHTING WORDS does not necessarily mean words that will get you punched in the nose if you say them. That would be nice, wouldn’t it? The doctrine was first espoused in Chaplinsky v. New Hampshire:

    “These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting words” those which by their very utterance inflict injury or… incite an immediate breach of the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value… that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

    This is still good law, but the court has consistently narrowed the basis on which this doctrine can apply. This is apparent when you look at things that have been determined by courts to be outside the bounds of that doctrine: cursing police officers, various kinds of hate speech, racial slurs, cross burnings, etc.

    I would give an example of what would constitute fighting words, but honestly, I don’t know if there is even a case on that.

  • Dave

    The Neo-Nazi march in the predominantly Jewish suburb never actually took place. What the American Nazi Party wanted was a parade permit for a rally in the Chicago parks, and the Chicago city gov’t was passively denying it by dawdling and foot-dragging. So the ANP applied for a permit in the Chicago suburb of Skokie, figuring they’d get a prompt, crisp denial of their First Amendment rights and could make a public case of it. They were right. They won the right to march in Skokie but never did so; the Chicago parks admin caved and gave ANP the permit it really wanted. The rally was attended by more protesters than supporters and more cops than either.

    I cite this at length in an attempt to put to rest a ghost in the journalistic culture: The march in Skokie never actually took place.

  • Brian

    Jon: There’s a story about Henry B. Gonzalez, congressman for life from San Antonio, where he was called a communist by a fellow diner in a restaurant who he then punched in response. The way I remember the story was that he successfully defended himself against an assault charge by claiming that the man was using “fighting words” and therefore had to expect a physical response.

    Also, didn’t the Supreme Court just in the last year or so rule that you could NOT burn a cross, even on your own property, and have “free speech” protection?

  • Jon in the Nati

    “Also, didn’t the Supreme Court just in the last year or so rule that you could NOT burn a cross, even on your own property, and have “free speech” protection?”

    Probably. I didn’t look that deeply into it; I was just relying on my memories from college and law school. As far as I know, only some burning of crosses is outlawed; a jurisdiction cannot outlaw it altogether.

    With regard to Gonzalez, I am not familiar with the case, but it is important to note the difference between the “Fighting Words Doctrine (TM)”, and ‘fighting words’ as used in everyday speech. They are not the same thing.

  • Dave

    Also, didn’t the Supreme Court just in the last year or so rule that you could NOT burn a cross, even on your own property, and have “free speech” protection?

    My recollection, admittedly vague, is that burning a cross on someone else’s property is unprotected.

    My equally vague recollection of “fighting words” is that they are also unprotected in the sense that they can be regulated, not that anyone gets a free pop to the chops of the speaker.