The Westboro Church (WBC) is one of the most vocal anti-gay groups in the United States. On a regular basis, they protest homosexuality by citing a variety of quotes from the bible. They frequently protest funerals of fallen soldiers and of homosexuals. The WBC believes that they do not deserve to be honored or mourned, and tell grievers that “God Hates Your Tears” Their protests, where they claim that homosexuals and those who are not protesting homosexuality will go to hell, have drawn criticism from many. The WBC firmly argue that “God Hates Fags”, as does the website they run.
The actions of the WBC have incensed and offended many, myself included. In Chaplinsky v. New Hampshire, a precedent was established that “in certain circumstances words may be regarded as fighting words because men will reasonably know that they will result in violence and hence, those words are outside of the First Amendment” (11:00 in clip). If the WBC were found to use “fighting words”, then a criminal conviction would not violate their free First Amendment guarantees. However, the definitions of what constitutes fighting words make it difficult to charge the WBC. The offense theory is difficult to attribute to the group because of their protected right to vocalize their beliefs and communicate democratic dialogue to society. The WBC is certainly protected in its’ right to protest funerals following Alexander Meiklejohn's philosophy of free speech. Meiklejohn asserts there must be no constraints on the free flow of information and ideas. The WBC is part of the democratic process and therefore has the right to express their opinions. John Stuart Mill’s philosophy would also serve the interests of the WBC. Mill would argue that the suppression of free speech hinders intellectual and social progress. In determining if sexually marginalized groups should be protected from offensive speech, his philosophy would not favor their protection. Mill also believed that merely offending the moral sensitivities of others do not count as harmful speech. I would not apply his philosophy in this particular case because I feel that the message of the WBC actually hinders intellectual and social progress.
Nonetheless, to prosecute them I feel I have to rely on Feinberg’s offense theory. The WBC is using hate speech targeted to individuals, which may cause “profound and personal offense.” Because of their presence and constant picketing, it is even more difficult for those offended by the group to shrug it off. The discomfort that is caused by the WBC’s protected speech may allow for prosecution in a court. To increase my chances of winning against the WBC’s messages, I would apply intermediate scrutiny, which typically is used by the Supreme Court concerning cases with groups that have been historically disadvantaged. While oppression of sexual orientation may not have as much historical backing as a case with racial oppression, I believe the same principles can be applied. In using intermediate scrutiny, I believe it could be reasoned that there is a greater than ordinary justification to pass laws prohibiting certain speech by the Westboro Baptist Church following Feinberg’s offense theory and the Chaplinsky case. Furthermore, sexual orientation may succeed under intermediate scrutiny in the way that the courts must examine the intricacies surrounding the stereotype and the word choice of "fags" that the WBC utilizes.
In doing all this, the issue I have as a lawyer is whether it will be upheld as constitutionally protected. In seeking to limit WBC's entitled free speech, I must apply a philosophy or precedent that would allow me to do so. Currently, it is difficult to determine if we have the right to limit the WBC's speech and how we would enforce that. In the previous cases brought upon them, they have been acquitted of nearly all charges. While it frustrates me, I must logically believe that I too, may fail in my attempt to protect sexually marginalized groups from the offensive speech of the WBC.
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I completely agree in that I feel that the WBC’s messages are offensive, to me and to so many others. I would like to see their messages restricted and their speech punished. However, I don’t think this can be done without severely violating fundamental constitutional rights and to try to restrict their speech wouldn’t hold up in court. I think that using Meilkejohn’s and Mill’s philosophies, it leaves realizing that WBC’s speech may be considered “worthless” speech, according to Chafee, because they hinder intellectual and social progress, rather than furthering it. And yes, WBC’s speech is undoubtedly offensive to almost everyone except for those few 75 members of the church. I would also agree in that although their speech would qualify as offensive, it couldn’t qualify as harmful because the intentions of WBC is not to harm people, but actually to help them in warning them that they’re going to hell in hopes that they will heed the message and “quit sinning”; that they are actually doing the public a favor. But I think that what it comes down to is the fact that they are exercising pure, free, non-violent speech, although in bad taste. This right is fundamentally protected by the Constitution’s First Amendment protecting everyone’s right to free speech. Simply because WBC’s messages are offensive, we have come to understand that their right to free speech can’t be discriminated against based on discrimination of content. Similarly, the UDHR would recognize protecting WBC’s messages under Articles 7, stating that they are equal under the law and can’t be discriminated against. Also, under Articles 18, 19, and 20 of the UDHR, WBC is given a right to freedom of thought, conscious and religion…and in public or private, to manifest his religion or belief in teaching, practice, worship and observance” as well as the right to freedom of expression and opinion without interference and the right to seek, receive, and impart information and ideas through any media. They are also given the right to peacefully assemble. Thus, I would disagree and think that strict scrutiny would have to be applied here, not intermediate scrutiny, because the government should have to provide a compelling reason to restrict speech in any case that involves punishing free speech, and thus violating a fundamental, explicit, constitutional right. Thus, although I agree that WBC is extremely offensive and would like to see them punished or restricted due to personal reasons, in terms of the legal justice, they cannot be because they are not inciting immediate or imminent harm. Although offensive and perhaps hindering intellectual and social progress, to criminalize WBC’s speech would violate free speech based on content.
ReplyDeleteHello. I read your posting, and I agree with you about WBC’s anti-gay speech. I also think that their speech is very offensive and disrespectful to the group of people, perhaps it needed to be restricted. However, the boundary of fighting words seems very strict, and I agree with you that it’s hard to apply to this case. First of all, I think that your use of offense theory is good although you are right that it’s hard to apply to a group. Also, I agree with you that it’s may be helpful in your argument. The speech is specially targeted for individuals in curtain social category, so WBC’s speech is not appropriate. I also agree with you that you applied intermediate Scrutiny for this case. On the other hand, I think that it may be kind of hard to apply Mill’s theory to this case because WBC’s speech may not immediately trigger harmful activities. Rather than leading physically violent activity, WBC still protested peacefully. In addition, Mill’s theory on hate speech claims that political speech may not fall into the category. Is WBC’s speech political? I don't know. I feel like Mill’s theory have to be “very immediate” and very narrowly categorized, and that makes it really hard to apply.
ReplyDeleteWith your analysis, you assert that the WBC has gone too far and that if any type of speech should be restricted, theirs certainly qualifies.
ReplyDeleteI agree with your choice not to apply Mill to the WBC’s speech and your assertion that “the message of the WBC actually hinders intellectual and social progress.” http://plato.stanford.edu/entries/freedom-speech/#JohStuMilHarPri
The hate-speech promoted by the Westboro Baptist Church is widespread and directed at Jews, gays, blacks, Christians, and, most broadly, at America itself. The group’s wide web presence, the media coverage afforded to the group and those who are outraged by their speech, the breadth of the group’s physical protests (which usually occur at busy intersections or at funerals), and the non-political content of their speech combine to create a wide audience who is offended by their messages. Their speech aims to anger, offend, and hurt its audiences who are often surprised and alarmed by the group’s speech.
http://www.adl.org/learn/ext_us/WBC/default.asp??LEARN_Cat=Extremism&LEARN_SubCat=Extremism_in_America&xpicked=3&item=WBC
According to the Stanford Encyclopedia of Philosophy, “Feinberg suggests that a variety of factors need to be taken into account when deciding whether speech can be limited by the offense principle. These include the extent, duration and social value of the speech, the ease with which it can be avoided, the motives of the speaker, the number of people offended, the intensity of the offense, and the general interest of the community at large.” http://plato.stanford.edu/entries/freedom-speech/#JoeFeiOffPri
Feinberg’s offense principle determines that “when fighting words are used to provoke people who are prevented by law from using a fighting response, the offense is profound enough to allow for prohibition.” http://plato.stanford.edu/entries/freedom-speech/#HatSpeOffPri
If we apply the offense theory to the WBC then they are liable to be prosecuted and punished for their offensive speech. Unfortunately, this theory is seldom applied to free speech cases, which makes me wonder whether the WBC would finally be subject to prosecution for using “fighting words” as established by the Chaplinsky v. New Hampshire precedent only if those that opposed their message were offended to the point of violent action against the WBC. One would think that Chaplinsky would already allow for the successful prosecution of the Westboro Baptist Church because it is widely agreed upon that their message holds no social value and is indeed worthless. Unfortunately, this precedent is rarely applied and the court is more likely to favor precedents like those established by Cohen v. California and Gooding v. Wilson.
After hearing your argument, I definitely think that you brought up some really crucial points. It's no secret that the Westboro Baptist Church's message offensive to most, if not everyone that doesn't belong to that group. Their vulgarity and blatant disregard to all individuals outside of their church is completely disgraceful, however to legally prevent them from continuing their practices and protests would violate constitutional rights. As you've pointed out earlier, it is very difficult to distinguish between what is considered "fighting words" and what is not. Not only do I feel that the definition of fighting words is too vague, it is hard to argue that the "fighting words" are intended to provoke violence towards targeted groups of people.
ReplyDeleteI liked how you brought up John Stuart Mill's idea that the suppression of free speech hinders intellectual and social progress and that merely offending the moral sensitivities of others do not count as harmful speech. I also agree with you that Mill's idea should probably not be applied in this case due to the fact that the message that the WBC is putting out there is hindering intellectual and social progress. By suppressing their speech, society would not lose anything but rather gain more tolerance of groups different than their own.