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Protests at Military Funerals Abuse Freedom of Speech

Posted by iusbvision on March 21, 2006

The United States troops have been taking a beating over that last few years from pacifists to Bush-haters and nearly everyone in between. Americans have seen Code Pink screaming at wounded veterans outside Walter Reed Hospital, Cindy Sheehan gallivanting around, and the New York Times run 32 consecutive front page articles about Abu Ghraib. Now it may appear that the troops are being attacked by some of the Christian right, a traditional supporter of U.S. troops.

The Westboro Baptist Church out of Topeka, Kansas has been protesting all over the country at the funerals of servicemen killed in action. The church is ran by “Reverend” Fred Phelps and consists of nearly 100 members, most of which are members of his large family (13 children and 54 grandchildren). The Westboro Baptist Church has a history of being a far cry from the mainstream Christian faith.

The reason for all the protests is not because they are pacifists, but rather they believe that God is punishing our soldiers because homosexuals are allowed to live in America. The extremist group’s websites and explain why the church cheers for more deaths among our soldiers. The website includes hate speech directed at President Bush, American soldiers, Coretta Scott King, even Mr. Rogers!

The group gained notoriety after picketing the funeral of Matthew Shepard in 1998. Since then, they have picketed outside James Dopson’s Focus on the Family program for their support of the Love One Out Crusade. Even in the tragedies, the group cheers for more carnage. Phelps proudly proclaims “We’ve been up there three times since September 11th, picketing with big signs saying ‘Thank God for 9/11’.” The group also seeks to “Thank God for Katrina” and to “Thank God for dead coal miners” in reference to the West Virginia coal miners buried alive.

This group, which can only truly be described as a cult gets to spread their message of hate and treason because groups such as the ACLU stand up for their freedom of speech. When states try to pass laws keeping this group away from mourners, they wave the first amendment around and eventually sue the lawmakers. Phelps claims, “A federal judge gave us $175,000 in fees for having to sue so many of the people over the laws they passed who were trying to run around the First Amendment.” Because the first Amendment has been abused for so long, this group gets to continue screaming things like “Pray for more American bodies blown to smithereens by cheap home made Iraqi IEDs”.

On March, 2nd, Indiana became one of the first states to pass legislation making protests within 500 feet of the funeral, viewing, or processional a felony offense. Republican senator Brent Steele authored the bill as a pre-emptive strike against a protest scheduled for March 6th in Kokomo. The new law punishes disorderly conduct with a $10,000 fine and up to three years in prison. Gov. Mitch Daniels was excited about passing the bill into law stating, “We’re determined to protect the bereavement and honor the sacrifices of those who’ve done the most important public service [of] all. That bill’s not going to reach my desk — I’m going to sign it at the front door.”

Missouri, Wisconsin, and South Dakota have already passed similar laws with Ohio, Illinois, and a dozen other states pursuing the same legislation. Kansas had their law struck down in the state’s supreme court.

Jarrod Brigham

15 Responses to “Protests at Military Funerals Abuse Freedom of Speech”

  1. Andrew said

    So I was thinking about this.

    I came to the conclusion that this editorial is pretty badly flawed. You should consider the following points:

    1) The first amendment guarantees freedom of speech. There are some restrictions on this freedom, forbidding deceptive advertising, the avocation of violence and certain forms of obscenity, but the Westboro people haven’t been convicted of crossing these boundaries.

    2) People are (supposedly) equal under the law. This means that, until the Westboro people have been convicted of a form of speech that is not constitutionally protected, they have a right to voice their opinion. In fact, they have as much a right to voice their opinion as you have to write this editorial.

    3) If the First Amendment is pliable enough to forbid the Westboro protests, then perhaps it is pliable enough to prohibit this column. I’m guessing that Mr. Phelps and his ilk wouldn’t be too keen on your labeling his group as a “cult” (though this is undoubtedly what it is. The man’s raving bonkers).

    I can’t begin to imagine what convolution of ideas led to this editorial. The idea that some groups are somehow unworthy of the right to speak their minds is a very dangerous one. I feel that it’s much better to allow these people to show their intolerance and ignorance, so that they can be exposed for the ignorant hate mongers that they are.

    I specifically take exception to your lumping of groups like the ACLU with Mr. Phelps and his band of loonies. While the ACLU definitely espouses some distasteful causes (such as NAMBLA), they are champions of the ideas that absolutely everyone is equal under the law and that everyone deserves their day in court. Our civil liberties have been under constant assault for the past five years, how you can vilify one of the major players in their defense puzzles me.

    This said, it’s unfortunate that Mr. Phelps is such an attention whore that he’s been reduced to protesting funerals. Perhaps you don’t know this, but the bulk of Mr. Phelps family (hence his church) are lawyers (Mr. Phelps himself was disbarred several years ago for tampering with a jury, or a witness. I forget). They want people to make laws like this, so they can sue. A federal court cannot, in good conscience, hold up a law such as this, because it’s patently unconstitutional.

    I suspect that Phelps was hoping for something of this nature. He and his creatures make a good deal of money (as you’ve mentioned) by suing states and individuals over issues such as this. He’s really a very sad little man; he beat his children with a mattock handle, holds that the Bible allows him to beat his wife, and was addicted to amphetamines for quite some time before he started this nasty little church. I think he’s in it for the attention, and he’s been quite successful. However, Fred Phelps deserves our pity. It must be awful to have your whole life be about hating someone.

  2. David Mathues said

    Dear Andrew,

    I respectfully disagree with your analysis of this topic. While I am not a crack lawyer, I am a student in law school (Notre Dame) who took a class in the First Amendment last year. The Amendment protect free speech, but it does not protect all conduct, even if the condcut is considered “speech” or “expressive” to some. Furthermore, under the Supreme Court’s caselaw, the government can often regulate speech by limiting it to specific places or because of its “side effects.” For example, the government cannot prohibit political rallies, but it can prohibit such rallies from using loudspeakers in residential neighborhoods. It cannot prevent this column, but it can prevent you throwing the paper all over town. It cannot prevent you from holding a protest march, but it can tell you to you cannot march at certain times.

    It’s a close case, but there is a good chance these laws would be upheld under similar legal theories that have permitted states to ban picketing within 50 feet of abortion clinics, or political speech near polling places on election day. The theory is that the speech is causes too many problems at that spot, and the speaker can speak elsewhere.

    Judges disagree on how the law works, so the laws might get struck down. So you might end up being right. However, your reasoning fails to take into account important Supreme Court caselaw.

  3. Andrew said


    If you’re talking about Hill vs. Colorado, the Supreme Court upheld a statue that said that, within a 100 foot radius of an abortion clinic, the protestors had to stay 8 feet away from the clients (apparently, this law does not require the protestors to actually move out of the way). I am not convinced that this buffer is significant in the cases we are discussing.

    If you’re referencing another ruling, I’d be interested to hear which this is :)

  4. Chuck Norton said

    I am also trained in Constitutional Law, while Congress cannot restrict speech content it can regulate time and place.

    You cant hold a protest on the toll road at rush hour for example. You cant have a protest in the middle of someones wedding and you cant do it in the middle of someones funeral.

    You can get a bull horn and have a protest during the day but you cant do it in the middle of the night while people are sleeping.

    It is called disturbing the peace.

  5. Andrew said

    Obviously, one can protest during a funeral. If this was currently illegal, the editorial would be about Phelps being arrested, not this new legislation.

    Your example doesn’t really hold water. I would be completely happy if Phelps decided he wanted to protest on the toll road. A Phelps sized spot on the front of a semi appeals to my darker side. However, while it’s physically dangerous to protest on a toll road, it’s merely rude and nasty to protest a wedding or funeral (incidentally, I’m wondering: would you object to a protest of a wedding of two men? I mean, it’s currently an important and socially divisive issue, so I think this is fair question).

  6. Chuck Norton said


    Why do you think that cities make you get a permit for a protest?

    I tell you what, get a bullhorn and make a load protest at the corner of Mishawaka Ave and 30th street. Have someone with bail money ready ok?

    It is just a matter of locality, if that particular locality doesnt have a disturbing the peace statute for funerals than they are perfectly within their rights to make one. If they had one then Phelps could have been arrested.

    This conversation is about the first amendment, you do not have a first amendment right to disturb the peace. This is demonstrated by the fact that localities are passing disturbing the peace ordinances as we speak. You can rest assured that the Supreme Court wont be overturning them. This is what the law is, whether you decide to accept it or not doesnt change the law.

    It is fine to protest the wedding of two men, just not at their ceremony. You see, people have the right to peacably assemble, you cant disturb someones wedding because it is an infringement on their right of assembly.

  7. Andrew said

    I’m not sure why we have to get permits for protests. It seems to me that the First Amendment says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”, not “Congress shall make laws that say you can protest all you like, so long as you buy a permit beforehand”. Why do you think we have to get permits to protest?

    I tell you what, why don’t you make your points without being a jerkface, ok?

    I’m not sure why you think it’s OK for cities to make laws abridging freedom of speech or assembly. Maybe you could clarify this point?

    Why do you think that protests necessarily disturb the peace? Further, when does a protest stop being a peaceable assembly and start being a disruption of the peace? I’m going to go out on a limb here, and say that when Dr. King and his friends marched to Washington for their civil rights, plenty of people called it a disturbance of the peace. The popularity of an idea does not make its public vocalization a disturbance of the peace.

    In fact, Chuck, at the end of this editorial Mr. Brigham says “Kansas had their law struck down in the state’s supreme court.” which means that the bill didn’t even make it to a federal court before it was overturned.

    So, by your logic, it’s OK for Mr. Phelps say he’s happy that American service people died, so long as he doesn’t do it at the funeral?

  8. Chuck Norton said

    You called me a “Jerkface” – You know, someone must have gone to college to learn a term like that.

    As far as your MLK reference – guess what, they marched in the daytime and gave plenty of notice. They did not march at a funeral or a wedding. So guess what, it is not disturbing the peace. There are indeed times when civil disobedience is required, but you didnt see MLK doing that at a funeral do you, and why do you think that is? It is because he had a lick of common sense unlike this Phelps character and his supporters.

    I am still waiting for you to prove me wrong by going to 30th street and Mishawaka Ave at 1AM with a sign and a bullhorn and start blaring away.

    I see that you avoided one of my best arguments, namely that you cannot use your free speech rights to disturb the rights of others to peaceably assemble. Weddings, funerals, a classroom etc are all examples of such assembly. Go into class here with a bullhorn and excersize your unique interpretation of free speech and see what happens.

    Instead of dealing with the facts and arguments head on in an ethical manner, you try to paint those who dare to disagree with you as “anti-first amendment” – this is nothing more than an ad-hominem attack.
    15 states have passed such laws, and Minnesota just passed their law with a vote of 133-0.

    “HF2985, would apply to funeral, memorial and burial services as well as to procession routes. It also would bar picketing at the home of the deceased’s immediate family on the day of the funeral.

    Violations would be punishable by up to 90 days in jail and a $1,000 fine and by a year in jail and a $3,000 fine for repeat offenses, including convictions in other states. In addition, families could sue violators for damages.”

    The punishment is severe, and it should be when you violate someones right to peaceably assemble.

    I am amazed that you were actually able to state my position correctly, but only in your last sentence. Phelps can tell people that he is happy that soldiers died all he wants, but just not during someones funeral.

  9. iusbvision said


    Please Refrain from Name calling on the weblogs or your post may be deleted. For more information you can read our Disclaimer.


    If this happens again, try not to rebuke it – as both posts may need pulled as a result of the attacks back and forth.

    You may continue with your debate, thank you for your participation.

  10. Andrew said

    IUSB Vision;

    First, I think you are over reacting. “Jerkface” isn’t really insulting (unless you’re in second grade). This said, if you are receiving student money for publishing this paper (and I understand that you are), you are sacrificing some of your autonomy in deciding what can be said in this forum.

    I am not comfortable with the implication that we’re discussing this topic at your sufferance. If this is a public forum (and if you have taken student money, it is)), then first amendment laws apply and I can say what I like, so long as it is neither libelous nor obscene. I think you’ll find that calling someone a jerkface is only libel if it is a false statement that negatively affects their reputation (operative word being false) and that by no stretch of any rational imagination is the phrase obscene. If you’re going to have a go at me for saying that chuck is acting like a jerk, then I must insist that you chew chuck out for treating me like a moron. Then I want you to go to the time out corner for treating me like a child. If you want to play daddy, then you must be prepared to be a fair daddy.

    To return to the issue at hand.

    Phelps plays by the rules, Chuck. He gets permits to protest. So does the KKK. I’m fairly certain that he protests on public property. You are avoiding the issue, which is that the first amendment says that congress is not allowed to regulate either peaceable assembly or speech. I’d like you to address these issues.

    I’m still waiting for you to engage in polite debate. We all want a lot of things, Chuck. In situations such as this, I like to quote the great philosopher, Mick Jagger, who said “Sometimes we get what we want, sometimes we get what we need” (I am paraphrasing. Riff with me). I would add to this “but most of the time, we don’t get anything”.

    I’m not sure how you want me to respond any more clearly to your point about weddings and funerals. The Constitution does not place limits on the right to freedom of assembly. My interpretation of the first amendment isn’t unique; the supreme court of Kansas shares my mind on this matter (remember? they overturned the ban on this sort of assembly. You were conveniently ignoring this).

    I should deal with facts head on? Chuck, I replied to every one of your points that wasn’t entirely trivial. This is a lot harder than it might sound, because your strategy seems to be to bury the opposition in a mountain of longwinded acrimony, but I dug in like a man. My arguments aren’t complex, either. I want a literal interpretation of the Constitution. Since you’re fond of handing out tasks to prove your points, I’m going to take a page from your book and give you this one: convince two thirds of the country to pass an amendment that says that protesting at weddings and funerals is illegal. If you do, this behavior will become unconstitutional, and I will have nothing more to say on the subject. I’ll even buy you a cup of coffee. Not from the vending machines, either, Chuck. If you do this, I’m taking you to Starbucks.

    Since what I am advocating is a literal interpretation of the first amendment, I am curious as to what you would call someone who doesn’t think the first amendment should be literally interpreted. I think I’d probably say that they were anti-first amendment.

    I’m aware that states are passing laws of this nature. It’s important to note that not every law passed is constitutional.

    Unless Phelps and his slimy ilk are assembling with brickbats and brass knuckles, they’re within their first amendment rights. Why do you think that one group has a greater right to freedom of assembly than another? Remember the part about people being equal under the law? This is what I was talking about. By your logic, then, the legislatures of these 15 states are in for some fines and jail time, as they’ve violated the right of Phelps and his slimy ilk (I like this phrasing) to peaceably assemble.

    Thanks for addressing my final point. I would reiterate the bit that “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble…”. “No law”, Chuck. Not “A law that forbids protesting at funerals or weddings.”

  11. David Mathues said


    Yes, I am referring to the case of Hill v. Colorado. Another important case is O’Brien, where the Supreme Court upheld a ban on burning draft cards. In O’Brien, the Court laid out a test for regulating “expressive conduct,” meaning action, not speech, but action undertaken to make a political point.

    Andrew, you may be advocating for a position, but it is not a position which the Supreme Court has accepted. Justice Hugo Black once argued for an “absolutist” view of the First Amendment much like yours, but his view has not been accepted by Justices on either side of the ideological spectrum.

    I can’t be sure which way the Court would go if it saw the protest cases, but I give you slightly better than even odds they uphold the ban. Why? Because there is a strong arguement that the ban is regulating only the time/place/manner of speech, something the Court permits, and because the ban is targeting the side effects of the speech (disturbance at funerals) rather than the (admittedly nasty) message of the speech itself.

    One can say that those reasons are just excuses to ban unwelcome speech. Maybe, but the Court has overlooked the “ulterior motives” of legislatures before, as the ban in Hill was motivated by pro-abortion sentiment and the draft card burning ban in part motivated by anti-draft dodger sentiment.

    I don’t have time to enter the debate about what the Court should do, as it is as much a matter for books as blogs. My only point is on what the Court will do. No matter what the text of the Amendment says, remember that the Constitution now means little more than what the judges say it means. I’m not thrilled with that turn of events, but it is the ways things are.

  12. Rachel Custer said

    To All Posters:

    It occurs to me that an issue being ignored here is not free speech and its protection, but why we have slid so far morally in this country. The courts will take care of Mr. Phelps in time. (However, I would like to submit that “hate speech” is not always constitutionally protected, and some of what Mr. Phelps and his group are saying sounds pretty hateful. Just an aside.)

    What really strikes me is the fact that these “Christians” are choosing to use their current right to free speech in such a demeaning, ignoble, hurtful way. While I do not personally believe God likes war, I also do not believe He likes us to be hateful to other people, especially the bereaved who have just lost someone they love. regardless of how they lost them. No minister I know in the Christian church would endorse this behavior.

    I think a core issue here is the widespread acceptance of obscenity by so many in today’s society. Though it may very well be legal to say some things, it is not always helpful or necessary. When did we get to the point in society where we, as intelligent college-educated young men and women, have the need to even discuss someone’s right to gather at another person’s funeral and say hateful things about that person?

    Just because something is legal does not make it right. The more I read about how our “rights” are being perverted by some in this country to cover all the situations that might arise within their “situational ethics,” I know more and more in my heart that the law and the state will not solve our problems. The law says many things are okay, but my morals and my beliefs speak the truth to my heart.

    What we in this country need is a reinstitution of the morals on which we were founded. We need a massive turning back to God and repentance for the evil we slide further into every day. I didn’t mean for this post to become preachy, but I wanted to make the point that just because something is legal does not make it the right thing to do.

  13. Andrew said


    I take your point. I hope you’re wrong, but we won’t know until the Supreme Court actually takes a case of this nature.


    While I understand your point, there’s no “smile and act nice” clause in the constitution. I think that in order to protect free speech, we need a very narrow definition of what constitutes obscenity (for example: to the average American, these Danish cartoons of Muhammad are just drawings of a guy in a turban, but Muslims find them very obscene).

    To put this in another context, Mr. Phelps would undoable argue that he finds our society’s growing toleration of homosexuality obscene. We’ve agreed that what he is doing isn’t right, but it is legal. There’s a reason for that – whenever you try to legislate morality, you will have to ask yourself who defines morality. Just fifty years ago, it was considered immoral for a black person and a white person to marry, so it was illegal in many states (in 1967, a Supreme Court decision overturned the last of these laws).

    This country was founded on laws, not morals. Our constitution (which is the foundation of our legal system, and was written by the founders of this country) says that “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble…” and they never qualified this statement by adding “unless it hurts the feelings of a large group of people.”

  14. Chuck Norton said

    Andrew said, “I replied to every one of your points that wasn’t entirely trivial.”

    Andrew, with all due respect, you have done no such thing.

    At this point I just encourage those who are interested to read the above and decide for themselves, but as I said, and as the Supreme Court has observed, freedom of speech cannot be used in a way that violates another persons or a groups right to peacably associate or assemble for various religious or cultural ends.

  15. Andrew said

    I don’t feel compelled to respond to stupidity.

    The Supreme Court allows people to protest abortions within 10 feet of the clients of an abortion clinic. Why is this legal if protesting within 10 feet of a funeral is a felony?

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