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First Amendment 

Anti-gay Kansas church spurs First Amendment talk

By John Masson
Aug. 16, 2012

What turned out to be a baseless threat by the Westboro Baptist Church to picket the Aug. 16 funeral of a Michigan soldier killed in Afghanistan instead spurred discussion of some of the principles behind the protected speech guaranteed by the First Amendment.

Frequently those discussions can be uncomfortable or even painful, said First Amendment expert and Michigan Law professor Len Niehoff.

"Popular speech usually doesn't need the protection of the First Amendment, because no one will try to suppress it," Prof. Niehoff said. "The First Amendment does most of its work with respect to speech that most people find distasteful or even contemptible."

Westboro, a small Topeka, Kansas–based church predominantly composed of family members of Pastor Fred Phelps, has gained notoriety over the last several years by picketing the funerals of service members killed in Iraq and Afghanistan. Their main point: God hates America and kills its soldiers because the country is tolerant of homosexuality.

The church's protests have triggered court action in the past as municipalities have sought to limit the church's ability to disrupt funerals and add to the pain of survivors. One Maryland case went to the Supreme Court: In Snyder v. Phelps, the Court ruled that Westboro adhered to the law: They notified authorities ahead of time, they assembled on public property about 1,000 feet from the funeral, and they obeyed the orders of police. Most important, the Court decided, the group also was protesting matters of public policy.

"Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible," wrote Chief Justice John Roberts. But, despite the pain the Maryland demonstration inflicted, Roberts wrote, it was still protected speech about public issues.

Courts and scholars have offered a variety of justifications for protecting such objectionable speech, Niehoff said.

"First, there are concerns about trying to draw lines—we worry over how those judgments would be made, and who would make them," Niehoff said. "Second, there's some belief that… even low-value speech is better expressed than suppressed; that the suppression of speech tends to leave things to fester and to be expressed in other ways—for example, through violence."

Furthermore, Niehoff said, even loathsome speech can encourage a spirited exchange of counter-speech.

"I think it's a form of speech when these Patriot Guard guys show up," Niehoff said, referring to the motorcyclists, many of them veterans, who attend military funerals and form a cordon between families and protestors. "They're making a symbolic, protective wall around the grieving family and expressing their support for a fallen comrade. They’re also expressing their complete rejection of the philosophy of the Westboro Baptist Church."

Niehoff noted that voices less strident than Westboro aren't always enough to provoke engagement and debate.

"You could look under 1,000 rocks and never find anybody who thinks they're right," Niehoff said of the Westboro church. "But there are plenty of groups that are less dramatic, less histrionic, and precisely because they're less outrageous, people don't feel compelled to stand up and rebut them."

One of the best examples of that kind of rebuttal, Niehoff said, came years ago when a small group of neo-Nazis decided to demonstrate at the Michigan state capitol. Opponents worried that if they counter-demonstrated the same day, they'd provoke a media event that would simply give the group free publicity.

Instead, Niehoff said, the opposition group waited until the next day and made their point more elegantly.

"People showed up with buckets of soap and water," Niehoff said. "And they washed the steps where the neo-Nazis had been."

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