By Brandon Bub
March 23, 2014
Last week brought the death of the Reverend Fred Phelps at the age of 84. I hesitate to use that title to describe him because there are few people out there perhaps less deserving of reverence than Phelps. This man made it his life’s mission to spout hateful rhetoric about homosexuals and the gay rights movement, disrupting military funerals with sings saying “Thank God for dead soldiers” because he believed that God was rightfully punishing America for not effectively exterminating its homosexual population.
For a long time I wondered whether or not Phelps’ beliefs were sincerely held. His congregation in Kansas was so small that its only members included his close family members and a few neighbors. With religion and public life, there is often a degree of play-acting as people try to find a mouthpiece for their views. My assumption had long been that Phelps knew he could guarantee himself a spot in public discourse by taking the most deplorable position possible and waiting for a major news network to give him a microphone. But the frightening thing is that Phelps and his family followers, who for the most part were highly educated, believed their message wholeheartedly. Phelps’ daughter, Margie, actually argued for the family before the Supreme Court in the 2011 case Snyder v. Phelps, the case that sought to resolve the question of whether or not the First Amendment protected the Westboro Baptist Church’s protests at military funerals against tort liability.
In that case, Albert Snyder, the father of the deceased U.S. Marine Lance Corporal Matthew Snyder, sued the WBC for damages on account of charges of defamation and intentional infliction of emotional stress. The Supreme Court sided with the Phelps family: in an 8-1 decision, they concluded that because WBC’s message was political by nature, they had to enjoy full First Amendment protection, no matter the despicable nature of their message. The idea undergirding the majority’s theory is that speech must be protected both when it is easy and when it is especially difficult; otherwise, why have a First Amendment in the first place?
Justice Samuel Alito offered the lone dissent. Even though his position did not win out, it is still one worth considering. Alito reminds us that the First Amendment is not an absolute: some forms of speech, like libel, obscenity, and “fighting words,” have long been outside the purview of the Amendment’s protection. As he writes, “When grave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery.”
On one hand, preventing the WBC from expressing their views without fear of reprisal could ostensibly be construed as censorship. On the other hand, however, I find myself drawn to Alito’s position. Can we really delude ourselves into thinking that every “political” position is one worth advocating? Will the marketplace of ideas always crowd out malicious voices to dilute their harmful influence? I’m not so certain on that question.
Like Phelps’ estranged son Nate, I take no joy in the WBC patriarch’s death. The man was clearly disturbed, and though his behavior was inexcusable, one must almost pity someone whose worldview could be so deluded. The problem is that Phelps and his family can often serve to distract us from the reality of LGBT issues in America. Phelps’ hatred was extraordinary, but we cannot pretend that through his absence, homophobia will disappear. Hatred and denial of rights can continue to manifest itself in subtle, influential ways–counter-protestors might outnumber members of the WBC at military funerals today, but let us not become complacent and assume that the battle for LGBT rights is won today.