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Are the Actions of the Westboro Baptist Church Defensible by the Freedom of Speech

Updated on April 13, 2015

Do you think the WBC has a right to say what they say?

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"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America" (CRS Annotated Constitution). The Supreme Court decided in 2011 that what the Westboro Baptist Chuch did in 2006 was protected free speech (US Supreme Court votes 8 to 1...). Who am I to contest the verdict of the Supreme Courts? Their whole job is to interpret the Constitution. I believe the Supreme Court came to this conclusion based on the marketplace of ideas model, but the liberty model should be applied to our society, as it is more functional and works better with our morals. If you use the liberty model, speaking out in any setting, saying whatever you want is not protected speech.

The Westboro Baptist Church, or WBC, is a church unaffiliated with any other baptist church, who protests America's stance on gay marriage and promiscuity by holding up offensive signs at high profile, generally military, funerals. They claim their purpose is to warn America about the wrath of God to come. They have slogans on their posters that consist of punchy phrases like "God Hates You" and Thank God for 9/11". The church is made of people mostly belonging to the Phelps family, with most of the public relations and law work being done by Margie Phelps. As she has acted as representative of the church on several occasions, I will assume her words to speak for the church.


"God Hates Fags" "You Might Be A Slut If.." "'Christians' Caused Fag Marriage" "Fags Are Beasts" this and other vile offensive things for the sake of warning our country about the wrath of God to come (David Pakman Show).. Maybe I'm not reasonable, and I can't speak for others, but I want to set their church on fire and if I had been there when they held these signs and screamed these words I have no doubts that I would have hit her right in the face. This is the definition of fighting words. Fighting words are not protected by the First Amendment. These words incite violence repeatedly, and so are too offensive for school or normal TV or radio, so I don't know why a public funeral is any different.

Imagine if instead of "God Hates Fags" the signs read "God Hates N*****s". I feel the need to apologize for even implying this word and this phrase to make a point that this is disgusting, and nothing but hate-fueled pointless ranting. Picture your grade school principal's face as a group of people stood outside the school holding up signs that said "N*****s Are Beasts" or N*****s Doom Nations". Now imagine the outrage as the Supreme Court Justices explained that the public school system is a "on a public street where the announced [classes] and the activities of others participating in the event were part of a milieu of public expression" and that meant that this was protected speech. This is morally wrong, and the stated purpose of the Constitution was to promote the general welfare and insure domestic tranquility, therefore our moral sense should in part dictate our interpretation of the Constitution.

In a lot of ways, we do use our moral sense to guide our interpretation of the Constitution. Our society has long understood that some freedoms are more important than others, and that in order for a society to function, some liberties must be restricted in order for there to be peace. People try to make this into a slippery slope, saying that we are a step away from communism by taking away our right to speech, but we already do it, and we aren't communist yet. There are things you can't say on the radio, or T.V. without warning viewers. The most important precedents for the limitation of free speech were set by the Roth Vs. The United States case:

"...which had caused the Court in Beauharnais to conclude that “libelous utterances are not within the area of constitutionally protected speech,” and this history was deemed to demonstrate that “obscenity, too, was outside the protection intended for speech and press.”6 “The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people . . . . All ideas having even the slightest redeeming social importance— unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests.”(CRS Annotated Constitution-First Amendment)."

Every part of this is hugely important. Libel is not protected speech. Is what the WBC are doing libel? Well, libel is written defamation or speaking against someone's reputation. If the WBC were to be taken seriously, their claims that gay people are ruining this country and that Sandra Fluke is a slut and a prostitute are absolute libel. If somebody calls someone a slut and a prostitute with no grounds or evidence, that is defamation. Especially when their only intent is to shame her. If you trusted the word of Margie Phelps as truth, then logically you should, at the very least, ostracize every gay person and Sandra Fluke. These claims are damaging to her reputation and the reputations of gays everywhere, as they have apparently singlehandedly tossed our country into chaos. The fact that these claims are too ridiculous to be believed does not make it not libel, any more than failing to murder someone makes it not attempted murder. Their intent is still to disgrace people on faulty assumptions, so it is still libel.

"All ideas having even the slightest redeeming social importance...have the full protection of the guaranties." This both clarifies that to be protected, what you are saying must be important in some way, and shows that there are things more important than free speech. I do not believe that what they do is of any true importance or value, because it is a scam. On the David Packman Show, Margie herself said, "This is marketing guirilla warfare. And we are good at it." Marketing, as in doing something for the purpose of getting someone's attention and money. This is the verbal equivalent of a spam email. They have no proposed solution, no actual support for what they are saying, their entire protest is a logical fallacy alone, it is just hate speech dressed up as political protest for the sake of the first amendment.

"...have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests." More important interests like the right to grieve without being spammed by hate. More important interests like the worldwide respect for the dead. More important interests like the assurance that your child's funeral will not, ever, be soiled by hate speech. This is not what the first amendment was designed for. “The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people (Tedford 484).” The WBC has no intent to cause real social or political change, so why should they hold up this amendment they don't understand like an umbrella?


The marketplace of ideas model is all about people seeking truth by everyone putting their piece in and participating in civil conversation until an agreement, or at least a compromise is reached. This model is based on the warrant that people will participate in civil dicussion, that people are seeking a common truth, and that every place is appropriate to air your political views(Baker). The liberty model however has the view that self expression is about personhood, and argues that since this can be done anywhere, in lots of ways, it is understandable to limit it in some circumstances. This is the model that was followed in the Roth case and many that followed, and was designed to protect your right to have and speak your own thoughts. In short, in the words of Rick Astley, the liberty model says "I just want to tell you how I'm feelin'." and the marketplace of ideas model says "Got to make you understand."

In a society with perfect people who are educated and objective, and lived without prejudice, the marketplace of ideas model works fine. I believe that the first amendment should be interpreted as everyone has the right to say what they're feeling in at least one public situation, but not all, and not in a way that hurts people for no reason. The marketplace of ideas model is only being applied now because our culture has adopted a very tragic, black and white view of things, in which there is one truth, and either you have a freedom completely or not at all. The world simply is not like that. There is no black and white, only shades of gray, and there is no such thing as complete freedom, and liberties must be prioritized. I have seen our country repeatedly make the decision that we prioritize respect over complete free speech; we have all made our outrage heard through conversations and violence and silly papers, and we have seen how the WBC has no social value, is blatant libel and hate speech, and is misusing the First Amendment. Under the liberty model, which our political climate would dictate we use, the Westboro Baptist Church's behavior is not Constitutionally protected.



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