Analysis #2: The First Amendment and Offensive Speech

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.