Limiting Free Speech (50): Harassment of Funeral Mourners

The Phelps family and their Westboro Baptist Church – notorious nutcases and media whores – won an important Supreme Court free speech case. In Snyder v Phelps, the Court decided that the First Amendment protects public protestors insulting dead soldiers during their funeral (“thank God for dead soldiers” was one of the insults directed at the Snyder family).

And indeed, free speech rights do and should include the right to be offensive, obnoxious, insensitive, indecent, disturbing and plain stupid, even if being so causes sincere and predictable discomfort for some. Moreover, the Phelps’ were in a public space and were “discussing” a topic of public interest (the war in Iraq and the permissibility of homosexuality). Those facts make the Court’s decision look inherently sound.

However, things look entirely different when we take some other facts into account. There’s for example the mourners’ right to privacy. Westboro’s picketing was a clear violations of this right. There’s nothing as private as mourning at a funeral, and the mourners are definitely captive: they can’t just go an mourn elsewhere in order to avoid the protest. Westboro on the other hand can easily stage their protests elsewhere: they can for example respect a decent distance. Their speech is not directed at the mourners anyway, but rather at the general public, so speaking outside a buffer zone around the cemetery would not, at first sight, limit their speech. An effort to balance both rights – speech and privacy – should therefore, at least in this case, come down on the side of privacy because the cost to privacy of permitting speech is much larger than the cost to speech of respecting privacy. (And rights have to be balanced; speech is not the most important right but rather one among many equally important rights).

Still, Westboro may disagree. It’s likely that they see their speech as inherently connected to their lack of decency: it’s precisely this lack that creates the controversy and that gives their speech the impact that it wouldn’t have outside of the buffer zone. The problem with this argument is that it confuses the right to freedom of speech with a right to maximum impact speech. And the latter right does not and should not exist. We have a strong right to free speech but no right to maximize the impact of our speech at the expense of other people’s rights.

Limitations of free speech in cases such as these can be argued, not just on the basis of the right to privacy, but also on the basis of the right to health. It’s not outrageous to assume that distress of the type caused by Westboro can lead to health problems such as anguish, depression etc. Again we have a conflict of rights, and again it’s a case in which limitations of free speech would impose a smaller cost – given the alternative forms of speech available – than the health cost imposed by the lack of such limitations.

All of this proves that we are dealing here with a case that’s about more than mere offense. But perhaps it’s also about more than privacy and health. Free speech does not include the right to use other people as mere instruments of your speech. And instrumentalization of this kind is clearly what Westboro is all about. They don’t give a damn about the mourners and use them as a stage for venting against homosexuality (they see dead soldiers as God’s punishment for allowing homosexuality in the U.S.):

the outrageous disturbance of a military funeral is newsworthy precisely because it is such an abhorrent and extreme act.  In essence, the speakers are using the mourners and their vulnerable and sympathetic position as a stage prop to get their message out to a different audience. (source)

And although there is no right to be treated as an end rather than a means, this does seem to be a solid moral principle.

Go here to read about the similar case of residential picketing. More posts in this series are here.


7 thoughts on “Limiting Free Speech (50): Harassment of Funeral Mourners”

  1. There is a big difference between the freedom to express opinions, and the freedom to propagate those opinions in any manner you choose. I support freedom of expression, but I support restrictions on:
    – Propagating those opinions in an intrusive way e.g. abusive rants with no argumentative merit, outside of the funerals of people who have done nothing to provoke the abuse.
    – Propagating in a way which makes it harder for others to propagate e.g. the rich using their wealth to crowd-out left-wing opinions in the media (which has distorted political outcomes to the right and away from environmental sustainability).

    It also isn’t hypocritical to support freedom of speech for everyone, except those who are against the freedom of speech. It isn’t wrong to round up neo-Nazis, because they think governments should round people up because of their political opinions. Freedom of speech for everyone except fascists!

    A big part of freedom of expression is the freedom of religion. There is a big difference between the freedom of religion and the freedom of cults. Most religions have cult like elements to them, but some religions are much more cult like than others. Cult leaders shelter its members from alternative view points, which has the same effect as not allowing freedom of speech. Cult leaders prevent its members from interacting with non-members, which further limits the free-flow of information and makes it much harder for people to leave the cult. Cult leaders marginalise the members who criticise the beliefs or practices promoted by the cult leaders, therefore the cult leaders are against free speech. Anti-cult laws would limit the harm caused by cults, while maintaining the fundamental rights of speech, expression and religion. The Westboro Baptist Church is more like a cult, than a true religion.


  2. the people who did this shit to this family should see what are soldiers go through in other countrys and id like to hear what the fuck theyed say then i think their monsters for this i mean a familly mourning a son or friend cousin or brother to be tortured like this after he was killed and disrespected by the taliban and insurgents i think these people should be shot and killed like this soldier was. i mean what the fuck!!!!!!!!!!!!!!! seriousley i hope these people burn in hell for saying something like this. it disgust me they would say that


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