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The Westboro Baptist Church Lives to Protest Another Day

Yes, even this speech is protected by the First Amendment
Yes, even this speech is protected by the First Amendment

by Zac Papantoniou,
Correspondent of that which is awesome and bad-ass

Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficient. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

– U.S. Supreme Court Justice Louis D. Brandeis (1928)

Fred Phelps and his daughter, attorney Shirley Phelps-Roper, along with members of the church Phelps founded (the Westboro Baptist Church of Topeka, Kansas (WBC)), are well-known for their anti-gay protests at the funerals of American troops killed in Iraq and Afghanistan.

I would venture to theorize that most people dislike (to put it nicely) the actions of those involved with the WBC (see here, here, here, here for examples) and especially here. As the church’s attorney, Phelps-Roper routinely defends the WBC’s beliefs/actions in the media and in the courtroom. In direct correlation to the WBC’s protests, several states have enacted laws prohibiting/restricting protests at funerals which carry criminal penalties, including time in prison/jail and fairly hefty fines.

In 2007, Missouri enacted Missouri Revised Statute 578.501 which criminalizes picketing in front of a funeral location or procession, and Missouri Revised Statute 578.502 a “fall-back” provision, which would narrow the scope of 578.501 (requiring that protesters/picketers stay 300 ft. away, rather than completely prohibiting the protest/picketing entirely, from a funeral/procession). It should be noted, that 578.502, would only come into effect should 578.501 be ruled unconstitutionally broad by a court. In October of 2007, Phelps-Roper brought suit in the Western District of Missouri on behalf of the WBC, challenging the validity of § 578.501 and § 578.502, under the freedom of speech protection of the First Amendment of the U.S. Constitution. In addition, Phelps-Roper also requested a preliminary injunction to prevent enforcement of § 578.501 until the statute could be reviewed.

The district court denied Phelps-Ropers motion for a preliminary injunction, holding “she did not demonstrate she was likely to succeed on the merits, did not demonstrate irreparable harm, and the public interest weighed in favor of upholding the challenged statutory provisions.” Phelps-Roper appealed, and the Eighth Circuit reversed the district court’s decision, finding Phelps-Roper met the standard for the issuance of a preliminary injunction. Phelps-Roper v. Nixon, 509 F.3d 480 (8th Cir. 2007). The Eighth Circuit then granted a petition for rehearing to consider the modified standard the Court had articulated for demonstrating a sufficient likelihood of success on the merits under a more recent case, Planned Parenthood v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008).

Yesterday, the Eighth Circuit Court of Appeals again held that the district court abused its discretion in refusing to grant the preliminary injunction to Phelps-Roper. Specifically, the Court found that:

1) plaintiff was likely to prove any interest the state has in protecting funeral mourners from unwanted speech was outweighed by the First Amendment right to free speech; 2) there was enough likelihood plaintiff will be able to prove the statute is not narrowly tailored or is facially overbroad; and 3) she was likely to prevail in proving the statute fails to afford open, ample and adequate alternative channels for the dissemination of her particular message that God is punishing America for the sin of homosexuality by killing Americans, including soldiers. (Opinion)

In other words, the Court says that Phelps-Roper is likely to prove “that any interest in protecting funeral mourners from unwanted speech is outweighed by the First Amendment right to free speech, that the statute is not narrowly tailored or facially over-broad, and that the statute fails to afford open, ample and adequate alternative channels for dissemination of her particular message.” Therefore, a preliminary injunction should be granted in order to rightly err on the side of the First Amendment. The Court emphasized that they were not (at least for the present moment) determining the constitutionality of § 578.501, they were merely deciding that Phelps-Roper is entitled to a preliminary injunction while the constitutionality of Missouri Revised Statute § 578.501 is thoroughly reviewed.

Say what you will about Phelps-Roper and the WBC; hell, I’d love to invite them to a blanket party at my apartment; but the fact of the matter is, we don’t need the First Amendment to protect popular speech. The First Amendment was contrived by our forefathers to protect unpopular speech in order to allow the marketplace of ideas to flourish. In their infinite wisdom, the founders sought to protect dissent and nurture new thought by limiting the Government’s ability to limit expression. While the Court did not issue an opinion on the constitutionality of Missouri Revised Statute § 578.501, I find comfort in knowing that the Eighth Circuit got it right, at least for one more day. See also Soldier Funeral Protests and Why I Reluctantly Side With Westboro Baptist Church.

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.

-Oliver Wendell Holmes dissenting in Abrams v. United States, 250 U.S. 616, 630 (1919)

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