Upholding the Right Not To Be Offended

The First Amendment protects even the ugliest forms of speech

Editor's Note: Steve Chapman is on vacation. The following column was originally published in January 2006.

It's hard to describe the views of the Rev. Fred Phelps without feeling soiled by the association, but I'll do it anyway. He attests that God is disgusted with America's tolerance of homosexuality. In his view, the Almighty is punishing the nation by using improvised explosive devices (IEDs) to kill American troops in Iraq. God wants our soldiers dead.

Phelps, pastor of the Westboro Baptist Church in Topeka, Kan., is not content to deliver this message to his congregation. He also communicates it in the least welcoming venue he can find: the funerals of men and women who died in combat. He and his parishioners have staged protests at more than 60 military funerals, holding signs with messages like "Thank God for IEDs" and "God Hates Fags."

These vicious demonstrations have elicited a predictable but mistaken response: demands that they be outlawed. Kansas passed a law banning such protests for one hour before a funeral begins and two hours after it ends. As lieutenant governor of Illinois, Pat Quinn pushed a law requiring demonstrators to stay far away from such a service.

Quinn sees the issue as simple. "No grieving military family should be subjected to vile epithets and signs at the funeral service of their loved one who has made the ultimate sacrifice for our country," he declared. The bill, he said, would merely uphold "the First Amendment religious rights of families to bury their dead with reverence."

Some parts of the bill do exactly that—making it illegal for protesters to block access to funeral parlors and churches, and restricting the sound levels of protests. But the concern is selective. The bill doesn't prohibit rock bands or motorcycles from making noise near a funeral—only protesters. The heart of the bill is meant to circumvent the First Amendment, not uphold it.

One section forbids any protest, no matter how quiet or unthreatening, within 300 feet of a building where a service is being held, from half an hour before it starts until half an hour after it ends. Another forbids signs featuring "veiled threats"—which could include the message that God will kill Americans if they don't change their ways.

The obvious goal is to stop demonstrators from presenting mourners with a message they may find deeply offensive. But the whole reason for the First Amendment's guarantee of freedom of speech is to protect unpopular, obnoxious, and even horribly vile messages. Messages that are popular and palatable, after all, don't need constitutional protection, since they are in no danger of being censored.

No one would seriously argue that the government can forbid Phelps to say "Thank God for IEDs" from his pulpit, in a public park, on a street-corner soapbox, or at a political rally. But the intent of these measures is to prevent him from saying it, even on a placard, at the site of a military funeral.

Why? Because the message can only wound the feelings of the family and friends of the deceased. It's reprehensible of Phelps to go out of his way to add to their trauma. But as University of Chicago law professor Geoffrey Stone put it, "There is not a funerals exception to the First Amendment."

Granting one exception would lead to others. If we silence demonstrators to protect us from emotional upset at funerals, what's next? Protecting us anytime we visit a cemetery? On our way into Sunday worship? When we're entering a hospital? Arriving at a psychiatrist's office?

Once we decide citizens should be free of unwanted messages in some public places, we invite censorship whenever anyone takes offense. Civil rights activists wouldn't have been permitted to jar the sensibilities of white Southerners. Antiwar demonstrators would be kept away from the Pentagon. Nazis wouldn't have been allowed to march in Skokie. Victims of priestly molestation would have to stay away from Catholic churches.

It's no justification to say Phelps could exercise his right to protest at other places and other times. Part of the right to free speech is the right to decide when and where to speak in order to achieve the desired impact. I think his message is wrong. But if it were right, who would need to hear it more than those mourning a soldier's death?

When Americans enacted the First Amendment, they agreed that none of us has a right to avoid being offended. If we had, a tranquil silence would fall over all the subjects that we now debate so vigorously and indecorously. The silence of the graveyard.

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