I received a kind note from Smagar at RedState informing me that he had written a rebuttal to my post about Fred Phelps and the legislation passed to ban funeral protests. I wrote that legislation banning public political protests -- even those as despicable as the Phelps tactics -- begins a slide that follows the BCRA in creating an unacceptable government-approval process for public speech. It also disturbs me to lose even a little ground on free speech to the likes of Fred Phelps:

These protests embarrass and outrage every community where they occur, as the should. Those who give their lives in defense of our country deserve a respectful farewell, and their families deserve peace and space to mourn. These ghouls use their right to free speech to act like mindless hyenas.

However, they do have the same right to free speech, a small technicality that both houses of the state legislature appears to have forgotten in their eagerness to provide a legal solution to a poverty of the soul. ...

Hopefully our legislature will heed the words of a Gold Star mother and rethink their reaction to the disgusting provocations of Fred Phelps. In the end, Phelps is a bug, and we shouldn't make him important enough to merit the loss of our speech rights.

Smagar finds my stance unproductive and wants to know what my solution to the problem would be:

Pretend a grieving family is standing in front of you. Now, pretend you are the state legislator who cast the deciding vote against a state law that called for a ninety-day jail sentence for anyone who intentionally disrupts a memorial service or funeral, and barred protestors from any demonstrations at the houses of the families.

Team Phelps is outside. He and his crew are cheering that this family's son is dead, because God hates fags. You've shut the church windows, but Phelps' freedom of speech still trickles through the cracks in the window frame molding.

Tell us what you'd say to that family, which would make them accept Phelps' presence outside.

Smagar offered to let me respond at RedState, but as it turns out, I'm not registered there -- and it would take a few days for it to go through, so responding there wouldn't really work out. Smagar deserves a response, so I'll just post it here instead.

Smagar writes passionately about a topic understandably given to passionate feelings. I completely understand the impulse that says we must create barriers to the despicable antics of "Reverend" Fred Phelps and his ilk. The families of our fallen heroes should not have to endure the hateful and insane rantings that his flock brings to the funerals around the nation. But for that matter, the people of Skokie should not have to endure the marching of Nazis through their streets, and the people of the South should not have to endure Klan rallies. As long as those demonstrations get conducted on public land, however, the First Amendment forces us to endure all of that, and more. (I think we can all agree that on private property, the owner gets to decide who enters and who leaves.)

Smagar asks me for a solution to Fred Phelps and his use of free speech to make an ass out of himself. I don't believe that there is one, short of more free speech. I do think that any restraint on public speech, especially political speech, starts us on a road that leads to a requirement for government permission to speak out at all. One Red State commenter already suggested a "free speech zone" in communities where all rallies could be assigned. Before the advent of the BCRA, the entire country was a free speech zone. Defining public land as off-limits to political speech allows totalitarians to narrow it down so far as to be useless, and as conservatives, we should fight even the beginnings of that trend.

So what do we do about Fred Phelps? The same as we do about Michael Moore, Pat Robertson, David Duke, Janeane Garofalo, Ted Rall, neo-Nazis, Klansmen, anarchists, and all of the assorted fringe elements that spew hatred and filth -- we use our freedom of speech to expose them for what they are. In fact, given the resources of the Internet, perhaps we could expose them in a literal sense by identifying all of the little morons that follow Phelps to these funerals and ensure that their neighbors and co-workers know who they are and what they do with their free time. That takes work and effort, and doesn't rely on the government to decide which speech deserves airing and which doesn't.

What I would say to the families is that restrictions on speech sound great as a solution -- until you need to speak out against what you perceive as injustice. When others then restrict your ability to protest, such as the recently-overturned restrictions on demonstrations outside of abortion clinics -- then it will be too late. We will have already agreed that speech has to be controlled by government, placing our core freedom in the hands of whatever group has their hands on those levers.

Trackback Pings

TrackBack URL for this entry is

Listed below are links to weblogs that reference Answering RedState On Phelps:

» Is Hate Speech Free? from Kerfuffles
Shirley Phelps-Roper, a daughter of the Westboro group’s founder, said that the efforts to block her church’s protests is anti-American, adding that such demonstrations “are exactly what the framers of the Constitution had in mind.” ... [Read More]

Tracked on March 26, 2006 11:03 PM

» Despicable but....... from The Florida Masochist
The ACLU is just coming to support anyone's first ammendment rights Who is to say what speech and assembly is right. Phelps is not creating a danger in what he does. Its not a matter of yelling fire in a crowded building. So he has a right to do w... [Read More]

Tracked on July 24, 2006 8:56 PM