Conservatives are looking to show the Phelps family a good old fashioned ass whoopin’ in the Supreme Court. Many are desperately hoping that the Justices will declare that there is no inherent right for the Westboro Baptist Church to protest funerals with signs that say such charming things as “God Hates Fags” and “Fags Burn in Hell.” Many otherwise smart conservatives are jumping on this bandwagon and declaring that the funerals of soldiers should be off-limits and protest free.
The intentions are good. A parent burying their child is the saddest thing in the world. Parents aren’t supposed to outlive their kids, but in the context of soldier funerals that happens far too often. The stress of that and the tragedy it represents have caused well-intentioned people to argue that those parents shouldn’t have to deal with the nastiness that the Westboro Baptist Church represents. As good as their intentions are, however, they’re the exact last thing that needs to happen.
For the Supremes to argue that funerals are no longer a free-speech zone, they would have to essentially state that speech is only free when it doesn’t offend the recipient of that speech. In other words, the Westboro Baptist Church can’t have the right to have a God Hates Fags sign at a funeral because it would offend the parents and family of that soldier. Most people aren’t thinking about that, and in fact they’re more concerned with the end result, which would be the end of protests at funerals.
But now take that a step further.
How long before someone else is offended, and based on precedent, they take it to court. How about all those Prop 8 protests? Or more interestingly, how about the anti-Ground Zero Mosque protests? Anyone offended by those protests could, in theory, bring suit to stop them, and they would have precedent on their side. While that’s not a perfect analog, it’s a realistic application, and that same precedent can be applied over and over any time the targets of a protest don’t like the fact that they are, in fact, being protested.
Which is why conservatives need to shut up and support the Westboro Baptist Church.
There’s been a lot of outrage from the right in the past few days, particularly over the organizations that are filing Amicus Curiae briefs on the case. The implication is that if you file a brief, you’re in favor of the message that the WBC is spewing. That couldn’t be further from the truth, and in fact it’s a laughable charge particularly from partisans that believe in the Tea Party philosophy of Constitutional literalism. In its most literal form, the First Amendment should be applied in a way that’s content-neutral, and people arguing for the rejection of this lawsuit are not necessarily doing so because they support the hateful message coming from the church, which is obviously not the case. In fact, organizations that have historically leaned very far left including the ACLU and the New York Times who would hardly condone the message, have defended the rights of the church from the beginning.
The reality is an uncomfortable one, but it’s an important one. Conservatives need to get behind the Westboro Baptist Church in this case not because they agree with the message, but because the stakes are entirely too high not to. The First Amendment is the basis on which everything in this country functions. Take that away for convenience and you may be happy with the results today, but it will undoubtedly have devastating effects down the road.