Today, the arguments in the case of Snyder v. Phelps will be heard before the Supreme Court of the United States. Margie Phelps, a member of Westboro Baptist Church in Topeka and the daughter of Fred Phelps, will argue that the First Amendment of the Constitution of the United States guarantees that the members of Westboro Baptist may freely continue their protests at the funerals of military personnel who have died in Iraq and Afghanistan.
It is not an easy case from either the legal or political perspective. While First Amendment guarantees are not absolute, they are among the most cherished of all of our freedoms. As a result of this the Phelps have allies, including a number of media groups who fear that any further restrictions on speech, no matter how offensive the speech and its circumstances may be, would be a terrible thing.
There are a number of ironies involved in this case. First, of course, is the fact that the case really involves two First Amendment freedoms, freedom of speech and freedom of religion as implicated in the Snyder family’s right to have an uninterrupted funeral for their son. Perhaps a greater irony is that Fred Phelps himself has declared that he and his congregation have already won because they have gained national attention and more publicity than they could ever have achieved because of the suit.
I believe that what the Phelps family and the Westboro Baptist Church do is obscene, far more so than many sexual displays that have been banned by the courts. Obscenity is not simply something to do with sex or physical violence. The desecration of funeral services for men and women who lost their lives fighting for their country and ideals is, to my mind, just as obscene as anything the adult film industry might produce.
Generally, obscene works, whether in the form of film or live performance, are not protected by the First Amendment. Why, then, should the Westboro Baptist performances, for that is what they are, performances to catch the eye of the media, be protected as free speech?
I have a further thought about this case, however, beyond what is obviously a difficult argument to make. Regardless of what the U.S. Supreme Court may decided in Snyder v. Phelps, there is something we can do. Fred Phelps has made it clear time and time again that his purpose is to gain as much attention as he can. Given the indecency of his latest protests at military funerals, wouldn’t it make sense for the media, every single newspaper, magazine, television channel, every blogger, and tweeter to simply refuse to pay any attention Westboro Baptist’s actions.
Simply freeze them out. Declare they will never again get free publicity. Eventually, when it becomes clear that the media frenzy is over, we may, perhaps, finally stop the Phelps clan by denying them that which they want most.
— Mike Hoeflich, a distinguished professor in the Kansas University School of Law, writes a regular column for the Journal-World. Read his “Grumpy Professor” blog at www2.ljworld.com/search/vertical/weblogs.entry/?q=Hoeflich.