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ETpro's avatar

Snyder vs. Phelps -- Regardless of what you think of Phelps' demonstrations or gay rights, do you think the 1st Amendment should protect Phelps' rights to outrageous demonstration at US soldiers' funerals?

Asked by ETpro (34480points) October 6th, 2010

Snyder v. Phelps was heard by the Supreme Court today. Phelps, formerly an attorney who was disbarred for badgering and hazing a witness on the stand, then turned his attention to preaching. He founded the Westboro Baptist Church in Topeka Kansas. He and his church have made themselves both famous and infamous for attending the funerals of fallen US Soldiers shouting insults at the grieving family and friends and wielding signs thanking God for the soldiers death. The church is so outraged by US tolerance for gays and abortion that they applaud any and all disasters that befall US citizens and the soldiers that defend them.

But however you may feel about the issues the Westboro Church protests and the methods they use to protest them, how far do you think the First Amendment guarantee to freedom of speech should go? How odious must speech and behavior get before we draw the line?

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51 Answers

syz's avatar

Ack, I hate this issue.

I’m no expert at constitutional law, but my belief is that free speech is a basic tenant of American society, and as such, I find that I must agree that they have the “right” to be obnoxious evil. On the other hand, I’d love to just beat them to within an inch of their lives and dump them here.

And how lovely to use the crutch of religion for cruelty, bigotry, hatred, and intolerance.

iamthemob's avatar

The speech can be as odious as possible – and the more upsetting, the better. I LOVE the Rev. Phelps – his is exactly the kind of ridiculous, insane hate that makes whatever he’s railing against seem reasonable and sympathetic to anyone with half a brain (and who’s not related to him).

Of course, what he’s doing seems ridiculously close to incitement to violence. It won’t be, because he and his followers are not trying to get the crowd at the funeral to attack them (well, at least it can’t be drawn literally from the things they say). Unfortunately, it’s something we have to deal with.

Oh, but lord – when there is a fight, I will be UPSET if anyone in the funeral who ends up snapping gets in any, any trouble at all.

josie's avatar

Phelps can say what he wants.
You can not pass a law that stops him.
But if I grab Phelps by the throat and show him to the door, then at my assault and battery trial, I would expect his actions to be regarded as a significant mitigating circumstance.
The fact that it might not is, in my opinion, the real issue.

Trillian's avatar

Since the beginning of history humans have held ceremonies for the burial of their dead. It is considred one of the things that sets us apart from animals and makes us civilized. The intentional disruption of a ceremony for the dead is not covered anywhere in the first amendment.

Blackberry's avatar

As much as we’d all like to, we can’t censor them, but we do have the right to keep spreading knowledge of their ignorance and lack of basic logic to everyone else.

WestRiverrat's avatar

You cannot pass a law that singles just Phelps out. You can pass a law that prohibits protests within X number of feet of a funeral.

Trillian's avatar

@WestRiverrat And decibles. Must cover decibles here…

iamthemob's avatar


In many cases, this is what is already happening. Parks and other public spaces can be subject to reasonable regulation if you want to have a “rally” of any sort – and I think these cemeteries more than qualify.


The first amendment doesn’t really protect the right as so much declare it is a right, and that the government can’t abridge it. So certain types of speech, etc. need to be excepted from the first amendment in order for the government to try to regulate it in any way. So unfortunately, this is speech that is totally in keeping with the first amendment.

Ironically, they have double protection in a way, as the speech is also religious in nature, and the government must be extra careful in attempting to regulate it because of the Establishment Clause of the first amendment.

Jabe73's avatar

I have to agree with Josie here, as long as his group kept their space legally they have every right to protest. Like said above however if this was at a funeral I was attending I’m not sure how I would react, maybe I would just snap the fuckface’s neck in half or maybe I would even do worse but (my opinion here).

marinelife's avatar

I do not think funerals are public settings. Therefore, I do not think the free speech pertains.

iamthemob's avatar

Free speech pretty much applies equally on private and public property. If they are not on public property, they can be held for trespass.

WestRiverrat's avatar

Here we just used the Right to life protests at the abortion clinic rules. Protesters have to be 500’ from the clinic property, must be on the public right of way, and may not block access or traffic.

iamthemob's avatar

it’s just too bad that sawhorse barriers don’t block sound and light as well as they do people.

Seek's avatar

@iamthemob Bagpipes? I mean, if you can’t beat them, drown them out, right?

MissAusten's avatar

@iamthemob The sawhorse barriers don’t block sound, but the Patriot Guard Riders do. I love love love these guys.

I despise what Phelps and his followers do. It completely sickens me for so many reasons. But, like others have said, you can’t pick and choose who freedom of speech applies to. If they show up anywhere around here, I would gladly volunteer to be a human shield between them and a grieving family. I’d also fight for their right to be as disgusting as they are. :(

lillycoyote's avatar

” far do you think the First Amendment guarantee to freedom of speech should go? How odious must speech and behavior get before we draw the line?”

I’m not sure we can “draw the line” anywhere. Odious speech is protected speech. As soon as we decide what people can and cannot say, then? Not really free speech, if people are not permitted to freely speak, is it? But this is a tough one, no doubt. I support the free speech rights of others, even if what they have to say disgusts me. But wilfully harassing grieving family members goes beyond merely not liking what the people from Westboro Baptist have to say. I’m not sure what the answer is. Limiting free speech for anyone limits free speech for everyone. I can only support what is legally permitted in terms of keep those evil, crazy jackasses as far away from the funerals as possible. What else can be done?

iamthemob's avatar


What’s funny about it for me is that it’s not a tough one for me at all. Unless the speech is subjecting people to immediate physical danger, you get to say it.

lillycoyote's avatar

@iamthemob I think I was pretty clear about not supporting the restriction of free speech. I’m not saying they don’t get to say whatever they want to say, wherever they are legally permitted to say it. I’m just saying that whatever can be done, within the limits of law, existing law, to keep the members of the Westboro Baptist church as far away from the funerals as possible is plenty o.k. with me. I said:

“I can only support what is legally permitted in terms of keep those evil, crazy jackasses as far away from the funerals as possible.”

And that was way to many “says” and “sayings,” I know, but I’m done editing.

I hate having to quote my own typos. It should read “keeping” rather than “keep” above.

iamthemob's avatar


Yup. That was clear. I was just using that as a jumping off point for talking about me.

Because, you know, I’m the bomb.

But I do get concerned when I hear people express (and not you, specifically ;-)) any reservation about freedom of speech. The only time that anyone should have to worry about being held legally responsible for simply saying something is when it’s very, very clear that bad things are definitely going to happen (e.g., the defamation limitations, child porn, and inciting a riot).

ETpro's avatar

@syz, @Blackberry, @iamthemob, @Jabe73 & @lillycoyote I am a constant champion of freedom of speech. Nonetheless, there are some legitimate limits on that freedom. Here are a few instances where we do not have the right to say whatever we wish. The classic example is yelling fire in a crowded theatre or claim you have a bomb on an airplane. Clearly, allowing such freedom lets an individual pose a risk to the safety and well being of the public. Also, it is not legal to defame someone. It is not legal to broadcast state secrets. It is not legal for a private citizen to form a treaty with a foreign government. I can’t walk into a theater and begin yelling obscenities at the top of my lungs. I would rightly be arrested for disturbing the peace, even if I legitimately held the political view that Hollywood is a cesspool of evil and nobody should hear what any movie soundtrack says.

@Trillian If I would get arrested for bellowing and disrupting a movie in a theater, how much more should I be guilty of disturbing the peace if I did it at as somber an event as a funeral? Exactly the point @WestRiverrat is making. @marinelife Like the movie theater, seems a funeral is a private place for peace and quiet.

But as @iamthemob correctly points out, Phelps is doing is own cause far more harm than good by pushing it in such an odious fashion in front of grieving parents and loved ones of a fallen soldier who had nothing to do with what Phelps is protesting.

@josie & @Jabe73 If I was on the jury, you could count on not getting convicted. The worst you’d get is a hung jury.

@MissAusten Three cheers for Patriot Guard Riders. I love those guys.

lillycoyote's avatar

@ETpro I agree, yes of course there are and should be limits on speech that involves libel, slander, defamation, inciting a riot, “shouting fire in crowded theatre,” all that, and our courts provide means and procedures; protocols to deal with that. And, though I don’t recommend it, you actually can “walk into a theatre and begin yelling obscenities at the top of your lungs,” :-) you’re just going to have to deal with the consequences, which at best, will involve being escorted out and at worst, end with you being arrested and prosecuted.

lillycoyote's avatar

@iamthemob I get concerned too. And I can’t support imposing any limits on free speech that are not already proscribed by law, e.g. dangerous or libelous speech, etc. Trying to impose limits on free speech is pretty much missing the whole goddamn point of what “free speech” is, excuse my language. In my opinion, there’s no tipping point, no slippery slope, it’s your basic toggle switch: on and off. Once someone decides what you can and cannot say then you are no longer free to say what you want. Speech, at that exact moment, is no longer free. Isn’t that obvious? If the government imposes certain restrictions, if I am only free to say what they allow me to say, then isn’t that, by definition, the end of “free speech?”

iamthemob's avatar


The end of speech generally, I would think. The more it gets regulated, the less clear where the line is. And the less clear that line, the more you’re going to censor speech which would have been “legal” “just in case.”

lillycoyote's avatar

@iamthemob At least maybe the end of speech that has any value or importance. And, yes, possibly the end of it all together. If I am only free to agree with you, or to agree with prevailing opinion, or to agree with my government or to agree with the policies of whatever the current administration might be, then I would prefer to keep my mouth shut and put my energies elsewhere, thank you. Living a free society is inneficient, messy, noisy, ugly and annoying sometimes, a lot of the time. I can only secure my own rights by defending yours. That’s how it works. We don’t get to pick and choose.

And, of course, by “you” I don’t mean you specifically, ‘mo. (I’m just going to call you ‘mo from now on, hope you don’t mind :). I mean it in the generic sense. I just don’t feel like doing the whole “if one is only…” thing. And don’t worry, I’m not really going to start calling you ‘mo :-)

poisonedantidote's avatar

They have a right to say anything they like. however, as funerals are paid for, and you get invited to go, i think this is enough to make a funeral a private event. and with that in mind, the phelps should be restricted in how close they can get. namely, just outside.

how much should they be allowed to say and how odious should they be allowed to get? they should be allowed to say anything they like, anything at all, without limit and without exception.

however, if they should happen to turn up at a funeral and get punched in the teeth by one of the friends or family, i think the person doing the punching should be exempt from criminal charges, on the basis that they where under intense phychological stress.

thekoukoureport's avatar

Really? So all levels of civility are thrown out the window. Does the UNNESSESSARY infliction of emotional harm go without ANY recourse. This man, this family did nothing but serve our country. Not for the freedom of speech sooo heinous that it goes without prosecution. I think the father said it best to all that believe that these people have the right to say it. “Tell me when your mother dies so I can show up at the funeral with a sign that says thank god for dead sluts!”

iamthemob's avatar


So all levels of civility are thrown out the window.

Yes, legally. And that’s the price of free speech.

Does the UNNESSESSARY infliction of emotional harm go without ANY recourse.

No, there’s recourse – it just shouldn’t be sought through the criminal legal system. These people could be sued for the intentional infliction of emotional distress under tort law in civil court. They also suffer social recourse (in that they are deemed crazy and horrific) and also potential economic ones (removal of financial support that may have been there before).

In these cases, we leave the government out of it, so that we aren’t censored. But if we hear something we disagree with, as we are in a democratic society, we get to vote with our courts, our dollars, and our associations.

thekoukoureport's avatar

He won a trail and was awarded damages. That was later thrown out on appeal on the grounds of free speech. So which part of the government should stay out of it.

Being deemed crazy makes you a star now a days.

iamthemob's avatar


Then we’re SOL in these cases. I’d rather be offended than censored in the end.

thekoukoureport's avatar

Great I’m sure thats what the founders had in mind for us. It’s time someone grew some balls and stood up against this idiocy. This is not a political rally, a Symposium on a controversial subject, this is a family burying their son. And all we can say is SOL. Wheres his right to pursue happines, wheres his freedom of assembly. The victims are never given the same rights as the oppressors why is that?

To break this down as being “offended” is offensive in and of itself. This isn’t about free speech, it’s about being accountable for the speech. To say that all speech is protected from prosecution under civil law is giving free reign.

He was awarded by a jury of his peers damages due to the slanderous and libel statements meant to cause emotional distress and undue harm upon a private family. Now you want to interprit it, as this mans right to say what he wants BS.

iamthemob's avatar


It is offensive to us. It is devastating to the family. But it is an OUTLIER, and one we must endure.

The fact is speech is NOT the medium through which this should be regulated. If you could link out to the civil case where this was overturned, I’d appreciate it – because it could be that they sued on inappropriate grounds. Regardless, nothing that the group says can be considered defamatory – it requires that they know their statements to be untrue (and they are just crazy enough to believe their bile).

I am gay. Fred Phelp’s followers have shown up at celebrations I have been to, with their signs, calling out that I will burn in hell. The freedom of speech means that we can’t be free from it. If I have to endure hate to be free, so be it.

thekoukoureport's avatar

He should be free to say whatever he wants. But he should also be resposible for any civil penalties charged to him by a jury of his peers. Not from the government, the citizenry, who also have the right to bring suit. How many of the innocent families rights been violated thusfar? Does that even matter? And if it doesn’t how does that make sense in a land following a so called rule of law.

Outlier? really?..... Do you watch TV?

The link is at the beginning of the string in the question.

iamthemob's avatar


I was seeing if there was a link to the case itself (so I could see the reasoning). But the report does include an IIED charge, so I’ll assume that it was considered, but that the state statute required that there be some form of personal knowledge element that was lacking.

The threat of large punitive awards, in any case, would dampen speech. I’m sorry…but in terms of the law, it DOESN’T matter from a speech perspective. I was thinking there might be something in an IIED claim, but I see why there’s not.

Consider this – after the murder of Matthew Shepard, the Phelps crew came out in force. In response, a few friends and supporters got together and, dressed as angels, blocked out the signs of hate and showed kind faces of support to counteract the speech. This developed into Angel Action around the nation.

THIS is the benefit of preventing government intrusion on free speech – bad ideas are replaced or counteracted by good ones. Instead of trying to silence these people, why aren’t we doing more of the above?

thekoukoureport's avatar

Because we have now made the point to conteract something and use our energy for someone who has no business being there other than to inflict emotional harm, disturb the peace, and take away from the freedoms of Americans to peaceful assembly.

You just keep looking at this scum bag and not the dead soldier or his family’s rights, Why aren’t their rights as vehemetly protected by you and others. The Constitution tells me that I have the right to life, liberty, and the pursuit of happiness all of which have been violated by the actions of another scumbag, wrapped in religion, and clinging to the hope that you will see this as a 1st amendment case. That way he could continue to get attention by spreading this poison throughout the country.

If this speeach is acceptable how is Charles Mansion in jail? He never killed anyone, just stood in the desert and talked.about it.

iamthemob's avatar

Alright, let’s break this down:


someone who has no business being there other than to inflict emotional harm, disturb the peace, and take away from the freedoms of Americans to peaceful assembly

The Phelps crowd are exercising one of the most sacred rights U.S. citizens have. They are there because, at least they claim, they are essentially gods warriors trying to get the message out about sin. Although horrific, doing things like this may be what’s necessary to, from their perspective, get the message across. Essentially, it’s the spiritual equivalent of cutting a persons throat on the street to open their airway so they won’t die. Regardless of the message, the right they are exercising is profound, and that is the “business” they are therefore.

The problem here seems to be you’re approaching this from a positive (i.e., the government has to actively protect) as opposed to negative (i.e., the government has to refrain from limiting) rights perspective. The first amendment tells the government what they can’t do, because the right to free speech is considered universal and natural, and therefore no law need be written to mandate it’s protection. Therefore, the government is restrained from acting in certain ways by the first amendment. This legal restraint does not extend to private citizens, so Phelps _can’t_take away the funeral attendees rights – although he and his guys can ruin the exercise of them in a manner that seems like it’s the same.

In essence, it’s the same thing you see at most protests – you have one side with signs and the other side with signs. Sometime one side is super-hateful. However, the contrary protesters are not “taking away” the haters right to free speech. This is where the general misconception comes from.


You just keep looking at this scum bag and not the dead soldier or his family’s rights, Why aren’t their rights as vehemetly protected by you and others.

As stated above, the family’s rights to free assembly are totally protected. At the trial of Matthew Shepard’s killers, his friends wanted peace while they saw justice exercised. However, this was made impossible by Phelps and his family/followers. Thus the Angel Action. They still got to see the trial and justice carried out in whatever form, but not in the peaceful manner they preferred.

And I hate to be blunt about this, but the dead have no rights, and at no point should anyone’s desire to be remembered in a certain way trump the rights of a living citizen.

By supporting the rights of Phelps, one IS supporting the rights for all. If we limit his rights (e.g., state that it’s “outrageous” and therefore should be more limited), how do we legally thereafter define “outrageous”? Should the paparazzi crowding around a celebrity constantly flashing the camera in their face be considered as behaving “outrageously”? Common decency dictates clearly yes, but what about legally? Should they thereafter be arrested and taken away? If this limitation occurred – very possibly they would. Then what about opinions that we just find distasteful? The implications are too dangerous to play with.


_ The Constitution tells me that I have the right to life, liberty, and the pursuit of happiness all of which have been violated by the actions of another scumbag, wrapped in religion, and clinging to the hope that you will see this as a 1st amendment case_

The constitution tells you no such thing – that’s a quote from the Declaration of Independence, which doesn’t have any legal effect in and of itself. Therefore, your right to happiness is again generally outlined by the Constitution – part of which is in your ability to exercise your right of speaking freely without fear of government action.

Your right to life and liberty have not at all been violated by this man, at least not through what he says. If you have a way how it has been, please enlighten me.


If this speeach is acceptable how is Charles Mansion in jail? He never killed anyone, just stood in the desert and talked.about it.

Charles Manson is in jail because he was part of a criminal conspiracy to commit the murder of Sharon Tate, her unborn infant, and others where such murder actually occurred. He was not arrested for talking about it – but planning it, and successfully.

This is not the expression of an idea, or an interpretation, etc. You aren’t free to lie without consequences, etc. – perjury, for instance, is punishable. You have to remember that anything said is not “speech” as contemplated in the first amendment. Speech only refers to the expression of an idea or a statement of belief, etc. That’s exactly what Phelps and his gang are doing…therefore, they are protected.

- – Now…I’m not defending this guys position, and that should be clear. But I find it, and this is all me being sensitive possibly, painful in a way that the legal battle seems to have exploded again now that they’re protesting soldier funerals. I had to watch far too many protests at gay and lesbian funerals where hate fell like rain, and the mainstream media wasn’t paying any attention then, and there wasn’t a Supreme Court case on it… (at least as far as I can remember). So, I think it’s an important point to show that it seems like a lot of people only want to limit free speech when it’s them getting hurt too, and not just us.

thekoukoureport's avatar

Again The government did not act. The plaintiff acted and was awarded punitive damages. THE GOVERMENT acted against the plaintiff’s right to bring suit.

iamthemob's avatar


Alright, so then you’re saying the government did act, only not first.

The government did nothing to act against the P’s right to bring suit. The circuit court overruled the lower courts judgment – which happens all the time when the ruling is based on Constitutional issues, especially when it comes to punitive damages (if you note, the lower court judge also reduced the punitive damages).

The plaintiff was trying to bring a new constitutional argument into the mix. The lower court agreed, and the circuit court did not. That’s the job of the federal court system.

ETpro's avatar

It’s a thorny issue. I don’t envy the Justices job on this one. But the right to free speech is a precious, vital right for the maintenance of liberty. And the only way to preserve it is to defend the most unpopular speech. Popular speech needs no defense.

It seems to me that other means, such as disturbing the peace and trespassing on private property could be brought to play to at least keep Phelps and his crowd

iamthemob's avatar

The sad part, @ETpro, is that one of the things these people are probably really, REALLY good at is learning and then obeying the various local ordinances that are applicable. (e.g., they are across the street, on the sidewalk across from the cemetery for most of the funerals in question).

ETpro's avatar

That’s true, @iamthemob. Te consolation prize is the louder they bellow their message of hate, the more people see homophobia and puritanical views as abhorrent. Contrast their behavior to that of the Christ they claim ot “represent” when He confronted the crowd ready to stone the woman to death for adultery.

thekoukoureport's avatar

I am not saying that he does not have a right to speak. I am saying that the PEOPLE decided that the speech caused undue harm. Because the higher court does it all the time is no excuse. He was not prosecuted by the government. The government takes away a persons right to sue and thats okay? Isn’t there laws on the books for libel? Slander?

also @ETpro Exposer is not a consolation prize for the citizenry, What it is, is an effective marketing tool to that .01 percent of the population that he represents.

@iamthemob I truly feel your pain regarding his actions in your life as well. It was wrong then and it’s wrong now. We the people should be able to bring about justice through a civil means so as to stop the hatred of all kinds. All this is going to create is more.

Look at our culture, a place where the Jersey Shore is rewarded. Socialist’s (people living on SSI and Medicare) screaming about the Kenyan who will socialize the country, the real housewives, Civility is no longer the norm it’s becoming the OUTLIER.

iamthemob's avatar

He was not prosecuted by the government. The government takes away a persons right to sue and thats okay? Isn’t there laws on the books for libel? Slander?

The laws on libel and slander are very, very specific – because, in part, they limit speech. For the most part, you can’t be guilty of libel or slander unless you make a statement of fact that you know is false. The fact that reasonable people can differ on whether anything the WBC says is a fact instead of a belief (or a detestable marketing technique) demonstrates that these really can’t be considered facts…and even if they were, the WBC can’t really be said to know that they’re false (if you read some of the claims, you’ll see that it’s so odd).

The jury allowed some of the claims through, and awarded a punitive judgment. The trial judge affirmed the ruling and reduced the judgment. But because these were issues of whether there was a Constitutional violation, the federal courts can (and in this case should) review the case. That is the nature of their constitutional existence. The appeals court determined that the judgment was a violation of the U.S. Constitution. This is the responsibility we, as a whole, have entrusted to them. And unless it’s an outrageous interpretation, especially when it comes to speech limitations, it must be accepted, no matter how distasteful the specific results.

Look at our culture, a place where the Jersey Shore is rewarded. Socialist’s (people living on SSI and Medicare) screaming about the Kenyan who will socialize the country, the real housewives, Civility is no longer the norm it’s becoming the OUTLIER.

I don’t disagree that we’re screwed up. It’s simply that we have so much knowledge, through new media, about everything that’s going on. Things need to be sensational to be noticed. I’m of the mind that, in many ways, “this too shall pass…” however.

I do disagree, however, that we are significantly more or less civil generally than we used to be, as a society. First, civility is very subjective. Second, it’s often associated with repression. It used to be fine and just, in civil society, to lynch a black man for disgracing a white woman with his glance. It used to be fine and just, in a civil society, to tie homosexuals together and throw them into a fire to be burned alive, because their practices were considered unnatural.

We need to figure out if, by seeking civility, we are limiting our freedoms.

I TOTALLY (obviously) understand and SHARE your frustration. However, I’d rather be able to talk back to these assholes then have the law say what both they and I can say…

thekoukoureport's avatar

Thanks always nice to have a civil discussion.

I understand the technicalities and the ramifications of what my stance would mean freedom wise. I thank you for pointing it out, When I say civility I am looking for us to use the document to evolve as a society toward something better. These kind of examples are showing us in an open and festering way that we are de-evolving back to the dark ages.

Its very frustrating thats all.

iamthemob's avatar


You’re right. But I think the fact that the WBC can do these terrible things because we are unfortunately by necessity accepting of some of the most vile forms of speech has allowed this conversation to happen – and we’ve gotten to a point where we’re starting to see that although we have different positions at the start, our interests in determining how we can be better as a people than this are exactly the same.

That’s kind of awesome, right?

I’m not going to thank the WBC for it, though – my appreciation is going to be my little secret

thekoukoureport's avatar

thppppt! (thats a rasberry);p

iamthemob's avatar

I do feel like limitations on speech like the one suggested in the suit will lead to other, more subtle limitations. This post discusses how the Patriot Act is again being used to assault free speech – and as the basis for FBI raids on people and organizations attempting to advocate peace.

ETpro's avatar

@thekoukoureport While 0.01% may resound positively to Phelps’ message of intolerance and judgmentalism, that leaves 99.99% who don’t.

@iamthemob I agree. As much as I disagree with what Phelps says, I do defend his right to say it.

thekoukoureport's avatar

.01% of 257 million is a large number. In todays environment that number may even be higher.

Crashsequence2012's avatar


As despicable as the Phelps gang’s behavior is banning their expression sets a frightening precedent.

ETpro's avatar

@thekoukoureport Don’t you get that arguing percentages deflates the real protection of free speech when it is highly unpopular?

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