Freedom to Hate

I can’t help but wonder if the framers of the US Constitution’s First Amendment would have placed at least some restrictions on hate speech if they had seen some of the most infamous examples in history such as from the Nazis, the KKK, and most recently the Westboro Baptist Church, a virulent anti-gay hate group in Topeka, Kansas headed by Fred Phelps which has gotten national attention for their picketing of military funerals.

It is their worldview (not mine) that since God hates homosexuality and the US Government and its military tolerates homosexuality, the tragedies that America has suffered like 9/11 along with the military deaths from the wars are a retribution from God.

For those seeking to understand more about the WBC, a fascinating one hour BBC documentary (which you can watch online in the following link) The Most Hated Family in America is written and presented by Louis Theroux who not only reports on the family’s strange (to say the least) views, but also probes some of the church members on their beliefs and even tries to reason with them (without success). It is scary to hear how all of these people think exactly alike in what amount to a cult environment.

The US Supreme Court has recently heard arguments from the family of Marine Lance Corporal Matthew A. Snyder who initially won a lawsuit against the WBC for “defamation, invasion of privacy, and intentional infliction of emotional distress” as a result of their picketing Corporal Snyder’s funeral only to have a higher court throw out the award based on First Amendment protections.

Ruling on this case is not so easy since hate speech unlike in most countries in the world is protected by the First Amendment. But there are also the rights of citizens not to be harassed by hate from others.

However, even the First Amendment does not provide absolute protection of free speech. There are Exceptions to the First Amendment such as for obscenity, child pornography, libel and slander. But the most applicable exception here is known as Time, Place and Manner Restrictions.

Even speech that enjoys the most extensive First Amendment protection may be subject to “regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” In the case in which this language appears, the Supreme Court allowed a city ordinance that banned picketing “before or about” any residence to be enforced to prevent picketing outside the residence of a doctor who performed abortions, even though the picketing occurred on a public street. The Court noted that “[t]he First Amendment permits the government to prohibit offensive speech as intrusive when the ‘captive’ audience cannot avoid the objectionable speech.”

This has led to the use of so-called Free speech zones.

Free speech zones have been used at a variety of political gatherings. The stated purpose of free speech zones is to protect the safety of those attending the political gathering, or for the safety of the protesters themselves. Critics, however, suggest that such zones are "Orwellian", and that authorities use them in a heavy-handed manner to censor protesters by putting them literally out of sight of the mass media, hence the public, as well as visiting dignitaries.

There is a misconception that the Westboro picketers are always in the immediate vicinity of the funerals. But there have been a number of laws passed to restrict how close the picketers can get to funeral services. In the case of the Snyder funeral, the picketers were said to be about 1000 feet away and their presence was apparently not even known to the Snyder family until they saw the protesters afterwards on the local newscasts.

The ACLU whose position protecting the right of the WBC to picket is in this blog posting (by a gay person no less). Instead of trying to outright prohibit the hate speech of the WBC which would almost certainly be struck down by the First Amendment, separating the picketers and the object of their wrath by enough of a distance appears to be a workable compromise. The only question left would then be to determine how much separation is enough to prevent needless intrusion without being overly restrictive on free speech. In cases like this, it always comes down to the same question: Where do we draw the line?