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Group's message is vile; muzzling them is worse

By ROBYN E. BLUMNER
Published April 23, 2006

"I cannot and will not cut my conscience to fit this year's fashion." - Lillian Hellman

Like Hellman, I hold principles that do not rise and fall with the inconstancy of hemlines. That is why I feel the need to defend the rights of Rev. Fred Phelps and his "God hates Fags" campaign.

Since last summer, Phelps has organized protests at the funerals of soldiers where his followers - a deranged group of biblical literalists from the Westboro Baptist Church of Topeka, Kan. - parade around with hateful messages. Phelps, promotes the view that American troops are dying as God's wrath for this nation's tolerance of homosexuality.

The fundamentalist sect is nothing if not provocative. Group members show up at burials with signs that say "Thank God for IEDs" and "God Hates America," looking like a "South Park" caricature of Bible-thumpers run amok.

But rather than ignore the ignominy of this demagogue and his 70 or so followers - who would tire and go away if no one took notice - Congress and state legislatures have jumped into the kerfuffle.

"There oughta be a law," Phelps opponents say, pushing for a way to make the group's actions illegal. They see the problem as too much free speech and lawmakers are obliging. Nine states have already approved laws regulating protests near funerals and another 23 states are considering similar legislation. Congress is expected to take up bills banishing demonstrations at federal cemeteries in May.

Most of the legislation would relegate protesters from 100 to 500 feet from the entrance to a cemetery, bar disturbing protests entirely or criminalize "fighting words" on signs.

The overreaction is something akin to unclogging a toilet by blowing it up. Don't misunderstand, I believe that what Phelps is doing is despicable. His Web site is a stomach-turning diatribe of convenient exegesis, offering chapter and verse on why American soldiers should die.

But it's not necessary to carve up the First Amendment to address this mental patient. A group called the Patriot Guard Riders, now 22,000 strong, has formed to provide grieving families with visual and aural protection from the ugly protests. The motorcycle riders physically shield mourners from the demonstrators, blocking the sight line, and rev their motorcycle engines if necessary to drown out any chanting.

Their mission is similar to the escorts that volunteer at abortion clinics, who help to usher patients through the door in defiance of the "Mommy don't kill me" shouts of protesters.

The reason lawmakers believe they can get away with regulating protests during public funerals is because the Supreme Court has been so willing to bend the First Amendment when dealing with anti-abortion activists. By approving bans on residential picketing outside an abortion doctor's house and special buffer zones around abortion clinics, the high court has irredeemably compromised the First Amendment.

Before that, protecting speakers on public property was the court's paramount duty. No matter how offensive or enraging the sentiment, the Constitution was on the side of letting it air. But in 2000, the Supreme Courts agreed to "balance" the free speech rights of protesters and the "interests of unwilling listeners" in a case involving a Colorado statute that prevented anti-abortion protesters from getting too close to patients entering a facility. That case, Hill vs. Colorado, essentially invited anyone unhappy with protesters to seek legal protection.

Why not also keep demonstrators a quarter mile from the president whenever he shows up to give a speech, since their presence would disturb the congenial atmosphere and could lead to a ruckus? (Something that is already done, but shouldn't be.) Why not also prevent labor picketers from being close to the factory their striking, since their incessant taunts might drive away replacement workers?

No one likes being picketed. More often than not, those targeted for picketing are the powerful and connected, while those doing the picketing have no other means of expressing dissent. If our free speech rights can be circumscribed anytime a protest is too offensive, the powerful will be handed another tool to silence their critics.

As Justice Antonin Scalia said in his dissent in Hill, "If protecting people from unwelcome communications . . . is a compelling state interest, the First Amendment is a dead letter."

The men and women who died in battle were standing for principles of American liberty. But with freedom of speech comes the likelihood of being deeply offended by what others have to say. All told, it is a small price to pay for such a monumental gift. A minor irritant like Phelps should not provoke us into giving up the very legacy for which our troops fought and died.

[Last modified April 24, 2006, 01:40:15]