The Westboro Baptist Church is a controversial church known for its infamous protests at the funerals of fallen soldiers and for their outspoken opinions about homosexuals, among other minority groups. Although they do not place physical harm upon others, they verbalize their strong opinions through signs, their online presence, and defamation of the American people, who they claim are doomed to hell (unless, of course, they are a member of the Westboro church). The WBC is lead by Fred Phelps, who founded the organization in 1955.
The WBC has been taken to court several times for their offensive protests. For instance, a 2006 law was passed that makes it a felony to protest within 500 feet of a funeral in response to the WBC pickets. Additionally, the WBC was sued by a dead soldier’s family in 2006 because they picketed his funeral. The court ruled in the WBC’s favor, stating that they were exercising free speech rights that are protected by law. In recent news, the group was featured in the 2009 film Bruno, and was counter-protested when they picketed outside of the Twitter headquarters last week.
Often defined as a hate group, the WBC claims that they are spreading God’s word, and they are doing a good deed by warning people that they will go to hell if they continue their “sinful” ways. The WBC spreads their message with extremely offensive signs, using language that is lewd and insulting. According to Zechariah Chafee, a philosopher who supports free speech that supports self-governance and democracy, this speech would be “worthless speech”. It does not promote social interest, and additionally, it can be argued that the speech is in the individual interest of the WBC. They are a group that continually offends society, and they refuse to understand the interests of other people or groups who are unlike them.
Although I like Chafee’s supposed outlook on the WBC, there are other philosophers who would support the WBC’s speech, for example, John Stuart Mill. Mill would ask if the WBC is harming anyone, and if so, is the harm legitimate or illegitimate. Mill states in his harm principle that the only purpose of prohibiting free speech against someone’s will is to “prevent harm to others.” Harm is an action that invades the rights of another person. Although the WBC is not inflicting physical harm on anyone, they are causing emotional distress that I believe has the potential to be harmful. They are insulting both major and minority groups by continually attacking their beliefs and values.
It seems as if the WBC is not violating Mill’s harm principle to a legitimate degree, but they are definitely violating both the offense theory and the respect theory. Joel Feinberg’s offense theory is based on the idea that the harm principle sets the bar too high, and some forms of highly offensive expression should still be prohibited even if they don’t violate the harm principle. Due to it’s “worthless” (lewd, obscene, slanderous, fighting words) nature, the WBC should not be allowed to continue their behavior under the offense principle. According to the offense principle and its relation to hate speech, Feinberg would say that the WBC’s hateful messages are no longer avoidable by the general public, and currently offend a large number of people. He would however, allow them to meet in private, and they could exercise their free speech there. The WBC is also violating the citizen-respect theory, because they are offending not only individuals but also groups, in particular, marginalized groups such as homosexuals and Jews.
I personally feel that under the offense and respect principle, the WBC should be banned from picketing and parading their offensive signs. I think that their outright displays of hatred are going beyond their right to free speech because they are no longer avoidable by the general public and they are targeting specific groups. I don’t think that the WBC should be banned entirely. They should be allowed to practice their beliefs in private, such as in their church, and maintain their website, since the public can choose whether or not they want to visit it.
Chaplinsky v. New Hampshire is one case that supports my argument. In this case, a Jehovah’s Witness was using a private sidewalk as a pulpit, causing a scene. Additionally, he verbally attacked a marshal, which led to his arrest in accordance with a New Hampshire law that prohibits directed offensive speech. The unanimous court decision in this case was that there are limited categories of speech which are not protected by the First Amendment. As stated by Justice Frank Murphy,“These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The WBC’s messages do breach peace due to their offensive nature, and they do more harm than good to society.
Although it can be argued that under Cohen v. California, the WBC would be able to continue spreading their messages, I wonder if this is accurate. The court ruling in the case states that "the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense." The WBC publicly displays their messages every chance that they get – it’s not an occasional action. The publicity of the WBC is more widespread than the famous “Fuck the Draft” jacket worn by Paul Cohen. And the four-letter word used on the jacket is only one of the many offensive words used by the WBC, not to mention their racial, anti-religion, and homophobic slurs. I agree that vulgarity is a necessary evil and that it is a side-effect in the exchange of ideas, but is the vulgarity employed by the WBC too over-the-top to accept given the WBC’s unappealing and offensive messages and ideas? Especially considering that few people share the WBC's beliefs except the people who are members of the church itself.
In conclusion, I feel that the WBC should be judged in accordance with Chaplinsky v. New Hampshire, and their free speech should be punished due to its violation of the offense and respect theories, and possibly the harm theory as well (depending on the definition given of “harm”). I support my stance with Chafee’s philosophy of democratic speech that promotes social interest, and I think that the WBC should be able to practice their free speech out of public view in accordance with Joel Feinberg's views on the offense principle and hate speech. I would not provide the WBC with absolute protection of free speech, because I think that their speech should be prohibited due it its high level of offensiveness to society. Therefore, I would use minimal scrutiny, in which the government must provide only a rational reason for their regulation and restriction of the WBC’s speech. If Mill’s harm principle proved to be applicable, I might instead look at the case under the lens of intermediate scrutiny, if it passed the test of clear and present danger. However, it doesn’t seem as though the WBC is causing any immediate or obvious risks, unless emotional harm and distress can be defined as dangerous and harmful.
