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Let’s support free speech even when others test its limits
Inside the First Amendment

By Gene Policinski
First Amendment Center vice president/executive director

At first glance, the racy Web site “” and a small, anti-gay group organized as the Westboro Baptist Church in Kansas seem to have little in common. invites online postings from college students with the message that “this is the place to spill the juice about all the crazy stuff going on at your campus.” It claims that “it’s totally anonymous — no registration, login, or email verification required.” The result is an often-raucous mix of sexual, racial and social comments that some claim include defamatory or even dangerous remarks.

The Westboro group has gained notoriety for its in-person protests at military funerals while carrying signs with messages such as “God Hates Fags” and “God Hates America,” based on claims that America is being punished with the deaths of military personnel for accepting gay lifestyles in society.

What the two have in common is that both continue to test the limits of free speech — as recently as this month — and that authorities are working at creative ways to try to muffle or prosecute them.

The controversy over the campus-gossip site, which says it now gets posted comments from more than 500 campuses, has been building since its founding in 2007 by a former Duke University student.

Attorneys general in New Jersey and Connecticut have investigated for possible consumer-law violations involving its promise to weed out threatening remarks. A Colgate University student was charged earlier this year with aggravated harassment for posting what authorities considered a threat, however vague, to kill students.

Administrators at Tennessee State University in mid-November became the first public college to block access from its campus computer network to Sidestepping questions of taste and propriety — and perhaps a First Amendment-based complaint — the Nashville school said it blocked access for safety and security reasons after a mother complained about a post arranging for students to beat her daughter. itself likely is protected by a 1996 federal law — Section 230 of the Communications Decency Act — shielding such Web sites from liability for what is posted on them, though those who post could face civil lawsuits for defamation brought by the targets of comments.

But the Westboro group — largely composed of the family of its founder, Fred Phelps — has faced both indirect and direct attempts to prevent their protests.

Passage of a flurry of state laws — most still untested in courts — that attempt to restrict when and where the group can march, followed by a Kansas court decision requiring it to pay state taxes on a truck it uses to travel to protest sites, has prompted the group to claim it is being singled out by government officials who don’t like its message or methods. Shirley Phelps-Roper faces criminal charges in Nebraska stemming from a 2007 military funeral at which the prosecution says she allowed her 10-year-old son to stand on an American flag, and wore a flag as a skirt that dragged on the ground. She is charged with flag-desecration, disturbing the peace, contributing to the delinquency of a minor and negligent child abuse.

There is a narrow legal line between protecting the safety, security and even the personal privacy and reputations of our fellow citizens, and muzzling the robust, unfettered and challenging debate and social commentary required by a democracy.

This is not to say that the often-salacious postings on equate with the often-eloquent arguments raised in the civil rights movement, or that the Westboro group’s sidewalk shenanigans compare to the public-protest legacy of the women’s suffragists. And there is understandable opposition — based, for some, in sympathy for bereaved families or outrage at racial or sexual slurs — to messages that belittle and attack, insult and defame. Still, nothing in the First Amendment requires protesters to be polite, signs to be soothing or messages to be mellow.

As we watch authorities enact or enforce restrictions on groups and words that we might prefer not to hear or see, we must insist that free speech essentially remain free, drawing our own careful line: the one between setting reasonable limits rooted in law and punishing speakers out of an emotional response.

Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: E-mail:


Prosecutor ordered to detail flag-desecration charge

Nebraska judge grants motion requiring county attorney to explain precisely why he's charging funeral protester Shirley Phelps-Roper with mutilating U.S. flag. 02.05.08

N.J. attorney general targets college gossip Web site
State prosecutors have subpoenaed information on how is run, citing concerns about 'unconscionable commercial practices.' 03.19.08

Kan. appeals court: Westboro Baptist must pay taxes on truck
Judges find church's funeral protests are reflection of religious beliefs, but also are political, secular; therefore, Ford F-150 used to drive to protests is taxable. 07.30.08

6th Circuit upholds Ohio law banning funeral protests
Picketing within 300 feet of a funeral remains off-limits in defeat for anti-homosexual Westboro church. 08.22.08

8th Circuit: Mo. funeral-protest law should be blocked
Panel again says Shirley Phelps-Roper is entitled to injunction while lower court considers constitutionality of 2006 statute. 11.03.08

First public college blocks gossip Web site
Tennessee State University administrators ban after mother complains about a post that arranged for students to beat up her daughter. 11.21.08

Cartoons, T-shirts and more: why we must protect what offends
By Gene Policinski The same First Amendment protections that shield offensive speech from government censorship also protect those who would speak in opposition. 05.18.08

Funeral protests

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