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Pastor's anti-gay actions test society's commitment to First Amendment

By David L. Hudson Jr.
First Amendment Center research attorney

Fred Phelps...
Photo by AP
Fred Phelps

The horrific death of Matthew Shepard, battered to death apparently for being gay, has mobilized not only those who advocate for homosexual rights but also Fred Phelps, controversial pastor of the Westboro Baptist Church in Topeka, Kansas.

Phelps plans to picket the Shepard funeral today to express his opposition to homosexuality.

On his Web site, Phelps proclaims: "It's too late to rescue Matthew Shepard from the life of sin and shame into which he was lured by the perverted, depraved and decadent American society into which he was born. All who say, 'It's okay to be gay,' have the blood of Matthew & millions more on their hands."

Shirley Phelps-Roper, one of Fred Phelps' daughters and an attorney for the church, said: "The media and the homosexual community have made the tragic death of Matthew Shepard a referendum on homosexuality and are using it to promote a perverted political agenda. Therefore, we must as gospel preachers remind all watchful eyes that there is a God in heaven, a day of judgment and that it is not OK to be gay.

"The same First Amendment that protects the rights of homosexual activists to picket in pursuit of special laws should also protect the rights of Westboro Baptist Church to stand peacefully on a sidewalk and preach their views," Phelps-Roper said.

Cathy Renna, communications director of the Gay and Lesbian Alliance Against Defamation (GLADD), says she is not surprised by Phelps' plans to picket the funeral. She said she was at Sonny Bono's funeral when Phelps picketed there because of Bono's daughter Chastity.

Yet, Renna said, Phelps should be able to exercise his free-expression rights. "We understand the importance of the First Amendment and free speech, because we're the first ones to have freedom of speech taken away. Therefore, we acknowledge that Phelps has a right to picket and express his opinion. However, we think that the way he chooses to share his opinions is inflammatory and hateful."

Vanderbilt law professor Tom McCoy agrees that Phelps should have the right to express his opinions. "It is crystal clear that government officials cannot censor, regulate or suppress his anti-gay speech because of a dislike for the content of his message," he said.

According to McCoy, Phelps' speech is a form of political speech that should be absolutely free from censorship. "It is a classic Brandenburg case," he said.

In the 1969 case Brandenburg v. Ohio, the U.S. Supreme Court reversed the conviction of a Ku Klux Klan leader who gave a speech laced with anti-black and anti-Jewish sentiments. The high court wrote that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action."

However, McCoy says that "there is a common-sense, general public reaction that a funeral of a hate-crime victim is not the appropriate place for contending points of view about the homosexual lifestyle."

According to McCoy, "a funeral is not a public forum" — or an area in which First Amendment rights have been traditionally respected and protected. For this reason, city officials can enact so-called reasonable time, place and manner restrictions on speech.

Renna says her response to Phelps' actions has been to call and inform the police of his plans. She says that at Bono's funeral, the police told Phelps and his supporters that they could not get within a certain distance, "maybe 500 or 1,000 feet" from the funeral.

"Reasonable time, place and manner restrictions designed to protect privacy rights would most likely withstand constitutional scrutiny. City officials need to be careful to apply such restrictions evenhandedly," McCoy said.

In other words, city officials must impose the same restrictions on GLADD as they do on Westboro Baptist Church.

"The worst threat to free speech comes in the form of suggestions that we censor views that we all agree are unsound," McCoy said. "The true test of free speech is whether we tolerate political ideas which we all consider offensive. I mean, the ideas which we agree on do not need protection."


Tenn. county bars protests near funerals

Officials pass resolution out of concern that members of Topeka, Kan., church might demonstrate at services for Army sergeant. 10.27.05

Legislators propose bills barring protests at funerals
Missouri, Oklahoma, Indiana lawmakers cite anti-gay group's demonstrations at military services; free-speech experts question constitutionality of measures. 11.14.05

Music firm objects to anti-gay church's video parody
Company says Westboro Baptist's 'We Are the World' takeoff violates copyright laws, but church's attorney says online spoof is protected by First Amendment. 05.20.07

Funeral protests

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