Preaching to the choir

Having grown up in Kansas, I've been aware of Fred Phelps and his Westboro Baptist Cult longer than most.  He has long been well known for his nuttiness around Topeka.  He had running feuds with a couple of local folks, like city council members.  Rumor had it the WBC would target specific individuals and fax them repeatedly, excoriating them for being "fags" and "fag lovers".*  His picketing campaign started just around Topeka.  And then it grew.  I remember cringing the first time I realized he got national attention.  Back in the early '90s, he was featured on an episode of Donahue and I groaned, thinking my new state would think these people represented my home state.

When I was in law school, he came to picket the University of Wisconsin.  Those of us who had grown up in Kansas did our best to encourage people just to ignore them.  We knew that publicity is exactly what they want and nothing thrills them more than a big counter-protest that will undoubtedly attract the media.  Of course, god love 'em, those uber-liberal Madison students couldn't ignore all that hate.  So they held a big rally and made the evening news.

Then the funeral picketing started in earnest.  They still picket lots of other places.  I saw them just today on the corner by one of our high schools.  Because nothing screams "America is doomed for being too pro-gay" more than a Sunday afternoon high school commencement.  But they're best known around the country for picketing at the funerals of soldiers, with signs from "God Hates Fags" to "Thank God for IEDs" to "God Blew Up the Space Shuttle".  (I really don't get their fascination with the space shuttle.)  In response, many states have passed laws restricting funeral protests to some distance away from the funeral site.  The family has always been careful to comply with those laws, even while disagreeing with them.

And then the father of one dead soldier sued. He sued claiming things like defamation and intentional infliction of emotional distress.  It's important to note that the WBC group was in full compliance with Maryland's funeral protest restrictions and that the soldier's family did not see any of the protest until they got home and saw television coverage.  A Maryland jury awarded the father millions of dollars, but the 4th Circuit Court of Appeals reversed, citing that darn, pesky First Amendment.  The Court further ordered the plaintiff to pay the church's attorneys' fees.  Now the United States Supreme Court has taken the case.

Which gets me to the point of this post.  The Kansas Attorney General has written a brief he intends to file in support of the Maryland father.  He has distributed his brief and is asking other states to sign on.  He's doing all of this using my tax dollars.  As part of his public announcement about this brief, the AG actually said, "These people have been hiding behind the Constitution long enough."

I should be used to this sort of unprincipled grand-standing from politicians, but I expected more from this particular AG.  He went to my college.  (I think we are the only two lawyers from that college in this state.)  I really would have expected him to side with the First Amendment.  I would have expected him to understand that those who express highly unpopular political and religious messages are absolutely entitled to "hide" behind the First Amendment.  Those unpopular messages are the reason we have a First Amendment, after all.  No one tries to censor the nice, popular stuff.

Look, I dislike the WBC's message as much as anyone.  (I won't say I hate the group because they spread enough hate and I don't want to contribute.)  I don't understand their single-minded focus on homosexuality as the "sin" that will lead to the destruction of America.  I certainly have no interest in meeting their god as he sounds like a pretty awful guy.  I don't know what made them think of soldiers' funerals as the place to picket, but they were right about what publicity it would generate.

But the bottom line is this: much as I dislike their message, I dislike even more the idea of using the court system to silence them.  And that's what this lawsuit is about.  It's about using a federal court as a means to bankrupt them so they can't travel.  It's about using a big judgment, enforceable by a federal court and law enforcement agencies, to make them think again about their political protests.  It's about stopping their protests.  But misguided and bizarre as their protests are, they are political protests.  None of us should be ok with using the court system to stop peaceful political protests.  (If you've never personally encountered a WBC protest, they really are peaceful.  They just stand there holding their hateful signs.)  I am extremely disappointed that the lawyer for my state has taken the wrong side in this fight.

The price of freedom is we have to put up with people like the WBC clan having that same freedom.  In discussing this over the past week, several people have said to me that freedom of speech comes with responsibility.  They are trying to suggest that the church should be held responsible for the emotional harms their actions cause.  I disagree with that interpretation.  I would suggest that the responsibility that comes with freedom of speech is the responsibility we all have to make sure that even the most vile, repugnant, hated political speech can be expressed.














*Of course I hate that word, but I'm not much for using asterisks.  I'd rather just quote him verbatim.