The Claremont Institute - Nobody Likes These People

September 29, 2006
by Richard H. Reeb

For many years, left and right have divided over the limits to free speech, the former tending to be more permissive than the latter. However, the emergence of "hate speech" and "hate crime" laws have muddied the waters quite a bit, with one man's hate speech sometimes thought to be another man's free speech. But here's something really bizarre.

Jay Sekulow, inveterate and indefatigable defender of the freedom of religion, usually against bogus claims of "establishment of religion," takes on (rightfully so) an exceedingly strange church in Kansas that evidently hates homosexuals and homosexuality to such an extent that it noisily protests against both at the funeral services of American service personnel. Somehow, in the twisted doctrines of Reverend Fred Phelps, leader of what has been called "an independent Baptist Church" in Topeka, Kansas, because the U.S. military, under the doctrine of "don't ask, don't tell," actually may have some homosexuals in its ranks; and, more generally, because the United States seems to be condoning the practice, and therefore deserved to be attacked by its enemies on September 11, 2001; protests should be lodged--nay, disruptions and hurling of epithets are justified--at graveside services for for those who have died in the service of their country.

Not surprisingly, Rev. Phelps, who reportedly has a flock of about 100, the vast majority of which comes from his extended family, took particular umbrage at President Clinton and Vice President Gore when their administration attempted to remove all barriers to homosexuals serving in the military. But the outrage is particularly strong inasmuch as Phelps is a Democrat who supported those national figures "back in the day" when they held more conservative views on this issue. Indeed, Phelps has several times run for public office in Kansas as a Democrat. Certainly, he could have no love for President Bush, who signed a bill on Memorial Day this year to outlaw protests at military funerals.

Equally strange is Phelps's admiration for Fidel Castro, whose dirty little secret is to have made homosexuality a crime; and for Saddam Hussein, who permitted Phelps's group to prosletyze in Iraq.

Sekulow, executive director of the American Center for Law & Justice (ACLJ), has wisely argued that freedom of speech cannot be stretched to cover truly hateful speech.

The protest groups incendiary signs waved at the grieving family and friends of fallen American military personnel are the epitome of what the courts have called fighting words. The protest groups modus operandi is to disrupt the funeral of fallen servicemen with protests proclaiming jubilation over the persons death and mockery of the mourners. The protestors routinely carry signs saying, Thank God for dead soldiers, God hates your tears, Thank God for IEDs (Improvised Explosive Devices), Thank God for September 11th, and other similarly disruptive statements. In our view, the protestors are not entitled to First Amendment protection because, in the funeral context, their content embodies a particularly intolerable and, in our view, socially unnecessary mode of expression. As the courts have also recognized, Resorts to [epithets] or personal abuse is not in any proper sense communication of information or opinions safeguarded by the Constitution. In essence, the signs of these protestors constitute fighting words which are directed against individuals to provoke violence or inflict injury. They are the lowest order of communication.

Phelps is so obnoxious that some conservative and right-to-life groups think he is a plant or agent provocateur. But the evidence I have seen indicates that he is genuine nut case, albeit with a flare for publicity and successful scofflawry.