Defending Fag Baiters

December 2007

The Westboro Baptist Church (WBC) is infamous for their anti-gay vitriol. At pride rallies, legislative hearings, and cultural events, WBC members — often led by Westboro’s founder Fred Phelps — have protested any and all things gay, carrying placards proclaiming “God Hates Fags” and similar, designed-to-offend slogans.

Phelps and the WBC (whose members are almost all Phelps’s children and extended family) garnered national attention after picketing the funeral of Matthew Shepard, a gay man brutally murdered in Wyoming in 1998. Picket signs then read, “Matt Shepard Rots in Hell.”

And most recently, the WBC has been conducting nationwide pickets at U.S. military funerals, claiming that the deaths are the result of the military’s “don’t ask, don’t tell” policy; were America to root out homos in uniform and stone them to death, Phelps argues, God would favor the country in battle and spare the lives of those service men and women presently damned by their mere association with a country that fails to exterminate homosexuals.

Last month, a federal jury in Baltimore awarded over $10 million to the family of a Marine killed in Iraq whose funeral was picketed by Phelps and the WBC. The jury decided that members of the WBC, waving placards reading “Thank God for Dead Soldiers,” had invaded the family’s privacy and “intentionally inflicted emotional distress.”

It is, of course, easy to feel sympathy for those targeted by Phelps and the WBC. As with an annoying insect, the urge to swat is hard to resist.

But thoughtful reflection reveals how counterproductive and dangerous it is to use the law and courts to silence those we find despicable.

According to reports, at the beginning of the trial U.S. District Court judge Richard Bennett instructed jurors: “[You must decide] whether the defendants’ actions [Phelps and the WBC] would be highly offensive to a reasonable person, whether they were extreme and outrageous, and whether these actions were so offensive and shocking as to not be entitled to First Amendment protection.”

What a remarkably erroneous assertion for a judge to make!

There is no exception in the First Amendment to allow silencing really bad people. Our Constitutional guarantees of freedom of expression are broad and, as written, absolute. The Framers, and subsequent jurists and scholars, recognized that to obtain the social benefits of a people free to speak their minds, the government must be restrained from muzzling anyone, for once censorship starts it has no end.

Furthermore, being “extreme” or “outrageous” are often the goals of well-thought through political speech (or art and literature, for that matter). Gay people have a particular interest in opposing this soft-headed notion that ideas and expression are intolerable if too “shocking” or “offensive.”

When gay people dogged Anita Bryant for her crusade against gay rights laws, should they be liable if any of their protests are deemed “outrageous”?

When ACT UP protesters confronted Roman Catholic clergy with condoms and taunts for their hypocrisy and silence during the plague years, should they be punished for being “offensive”?

And if gay marriage proponents decide to picket some anti-gay-marriage politician’s nuptials, should they be financially ruined for causing “emotional distress”?

In a free society, we all put up with people and expressions we do not care for, along with some that we actively despise, even hate. We do so to enjoy the benefits of tolerance, whose quality — like that of Shakespeare’s mercy — is “twice blessed.” We appreciate others’ tolerance of us and our expressions, even as we become better citizens by learning to tolerate those who might otherwise provoke us to rage or violence — or a multi-million dollar lawsuit.

Pasted from <http://guidemag.com/magcontent/invokemagcontent.cfm?ID=4EEBB0EC-F2FA-4F58-B243D77555509C1A>