The Westboro Baptist Church [WBC] has long been used as a case study for hate speech and First Amendment rights, yet continues to provide fresh material to examine the doctrines upon which liberty in the United States was built. Their extreme messages—usually offensive—combined with the time and place they choose to protest continues to call into question the line between personal liberty and governmental restrictions. Despite outrageous messages, often delivered in a manner upsetting to people’s private and what could be seen as sanctified moments such as funerals, the Church holds and exercises their right to say what they will, with few restrictions concerning the time and place of delivery. If United States citizens are to uphold their liberty, this intrinsic human right to debate freely and thus develop socially and intellectually, no speech—even hate speech—should be silenced. However, there are cases for which the established time, place and manner restrictions should apply.
As John Stuart Mill examines liberty in his essay On Liberty, he gets at the very essence of hate speech regulation in terms of the First Amendment: the line between individual citizen and governing body. One central idea in his philosophy is that of speech and the importance of being able to state an opinion so it might be “freely, frequently and fearlessly discussed” [Mill 40]. If there is any doubt regarding what one can or cannot voice, there is an infringement on freedom of speech and thus liberty itself. This right does not function only on the personal level; it exists by association for the greater social good. Mill holds that an idea must be debated and challenged frequently, for otherwise it becomes a dead dogma. Truth must be tested in this realm of experience and intellect in order to further refine it’s definition as well as allow for the development of one’s own critical mind. Furthermore, one can never assume the truth of their statement, nor can they assume the fallacy of an others’. The value of WBC’s speech lies in their belief they are postulating a valid point. It is important to include their ideas in the ongoing conversation so they can be challenged, thrashed out and eventually reshaped by conflicting and harmonizing points. “But on every subject on which difference of opinion is possible, the truth depends on a balance to be struck between two sets of conflicting reasons” [Mill 41]. Mill’s view of liberty, however, does not assume one has the right to say something just because they can, without an understanding of the reason for this right. Thoughtful, deeply understood and constantly practiced, the motivation to speak is twofold: to improve society and to grow oneself.
The political reasons for freedom of speech concur with Mill’s philosophical reasons. In the words of Supreme Court Justice Brandeis, “Those who won our independence... believed that... the greatest menace to freedom is an inert people; that public discussion is a political duty; and this should be a fundamental principle of the American government...” [Tedford 434]. Why have this freedom unless it is fully understood and practiced? How to call oneself free unless this practice is fully realized? How to fully realize it unless it may be observed in the public realm? This right is to protect the individual and society from falling into narrow and absolute definitions of right and wrong, of truth. WBC has the right to protest, yet others have the duty to respond.
Hate speech—like that of WBC—should be protected and thus subject to the “immediate incitement” test under Supreme Court ruling. To punish speech challenging or threatening the societal norms and values is to go against the fundamental values upon which this country was founded. Justice Black, in his dissenting opinion regarding the use of the “bad tendency” test in Dennis v. United States, said “Undoubtedly, a governmental policy of unfettered communication of ideas does entail dangers... the benefits derived from free expression were worth the risk” [Tedford 62]. Echoing Mill’s notion of upholding truth and validity only in the face of opposition, applying “immediate incitement” to hate speech allows for the strengthening of existing ideas, as well as the creation of new ones. “The political censor has no place in our public debates” [Tedford 62], said Justice Douglas of the same case. Instead, the speaker must enjoy maximum protection and the government must employ rigorous judicial scrutiny in determining the intent and imminent danger of the speech. Hate speech must be more than just “blowing off steam” [Tedford 67]; there must be an accompanying dangerous action about to occur. If the WBC truly believes what they say, they should care more about being heard, than about the emotional impacts of the message—for example, protesting during funerals to create emotional damage in soldiers’ families—even though exploiting emotion is a large part of garnering attention. However, they should also understand that informing people could be more effective in a context where the emotional does not outweigh the rational. Otherwise, just as the government felt endangered in Dennis v. United States, the professors of “hate speech” seem wary of the strength of their argument, thus relying on its operation in extremely emotional environments for response.
This sort of response is antithetical to the right of free speech: developing the self and society in a context of healthy and rigorous debate. This context needs all types of speech, whether they are hateful and extreme or peaceful and wise. In terms of defamation, however, what constitutes “safe” hate speech must be refined. “Fighting words,” as defined by the Supreme Court, are “words spoken in face-to-face confrontation that are likely to create an immediate breach of the peace” [Tedford 177]. This speech falls into the “worthless speech” category as developed during the Chaplinsky case. “Worthwhile speech” is comprised of “expression that has social value as a step to truth, thereby deserving First Amendment protection” [Tedford 171]. Un backed by proofs, the speech of WBC could fall into the level II category of worthless speech. Yet despite WBC’s possible presence in this category, stifling their speech is dangerous. Necessary requirements regarding restriction of speech need to be further refined.
When determining the protection of hate speech, one must also take into account the use of appropriate channels of communication. In order for debate to flourish an outlet is needed. Picketing is rarely, if ever, seen as sophisticated debate. However, to prohibit the act of picketing and restrict what one might say while doing so is also to risk the protester’s reach of a “boiling point.” With the inability to let off steam in the form of non-violent protest, WBC would undoubtedly find alternative methods—perhaps less peaceful or subtle—of making themselves known in the public forum. This type of speech must be allowed on some level, the compromise being regulations of time, place and manner of the protest.
Justice Thurgood Marshall defined the compatible-use rule in 1972 in the case Grayned v. Rockford as the crucial question of “whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time” [Tedford 269]. Depending on a state’s restrictions, the WBC is not allowed to protest within a certain amount of feet or during specified times before, during and after a funeral. Families must be protected from this kind of emotional distress, yet to impose content-based restrictions regarding the time, place and manner of exercising free speech and, more specifically, protesting, is a slippery slope. The fine line between upholding personal privacy and safety, and upholding the right of self-expression becomes even finer in cases where either side could be seen as worthwhile to protect. However, allowing minor restrictions during a specific, obvious and unique time—grieving during a funeral—is reasonable. The harm to the individual in this circumstance outweighs the necessity of WBC’s message being professed during the time of funeral. As long as restrictions do not grow to cover longer time periods, entire public places and peaceful methods of protests; as long as other mediums exist through which to create dialogue regarding such contested subjects; freedom of speech should not suffer from such restrictions.
