Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  Phelps’s daughter, Shirley Phelps-Roper, was driving to the University of Wisconsin to picket one of the funerals and a memorial service when I reached her on her cell phone. “There are so many ways that God is killing these college students,” she said with satisfaction. “This nation has a bunch of women, they get drunk, they put their skirts over their heads, they put it on the Web.”

  Video later showed huge crowds of Wisconsin students surrounding the Westboro group, yelling, “Go home! Go home!” and holding competing posters saying “God Hates No One,” “God Is Love.” One student raised a witty sign above her head reading “You’re Not in Kansas Anymore.”

  Westboro’s vitriol didn’t generate broad outrage in the 1990s, when members targeted gays’ funerals, picketing services for Randy Shilts, who died of AIDS following his book about the epidemic, And the Band Played On. After they demonstrated in 1998 at the funeral of Matthew Shepard, a gay student beaten to death in Wyoming, the city of Casper quickly passed an ordinance requiring funeral protesters to stay at least fifty feet away. But gays and their families didn’t get a sympathetic national rush to legislation.

  Nor did the church get much attention when it cheered as just punishment the destruction of New Orleans by Hurricane Katrina; the whipping of Georgia by tornadoes (“God controls the whirlwinds, and they are a tool of His judgment”); the deaths in Missouri floods (“God causes the waters to rise”); or the collapse of a construction crane in Manhattan. It was a bit like the local crazy standing on a corner with a sign saying “Doom. Repent. The End Is Near.” People shrugged and walked on.

  But targeting soldiers’ funerals pushed a lot of buttons, patriotic and religious. Motorcycle riders—some of them Vietnam vets—quickly mobilized into the Patriot Guard, offering families an escort designed both to honor the fallen and to block the sight and sound of the protesters with shields of American flags and racing engines. Even before laws were passed, said Phelps-Roper, police often kept the pickets at a distance, so she thought a very small percentage of family members ever saw the signs. Besides, the survivors weren’t the targets, she insisted. “It’s not about where we’re standing. It’s about the words.”

  She remembered a soldier’s mother in Minnesota, accompanied by a television crew. “She came right down there, she came down the street, she reached out and shook my hand and hung on to my hand, and she used the opportunity to say, ‘I don’t think you ought to be here.’ ”

  Phelps-Roper held on to the mother’s hand as well and replied without mercy. “I said, ‘You raised that child for the devil. [The mother had been divorced and remarried.] You taught that child that adultery was just fine.’ ”

  A vignette of remarkable coldness unfolded outside Arlington National Cemetery on a bright April day, where two young women held signs saying “Thank God for Dead Soldiers,” “God Is Your Enemy,” and “America Is Doomed.” They wore inverted flags wrapped around their waists, and they sang military melodies with antigay lyrics. As federal law required, the pair was kept far enough away not to be noticed by any mourners, except perhaps as they drove briskly past. Most pedestrians reacted about the way they would to the local ranter with the “Doom” sign.

  Occasionally, someone would be struck hard enough to stop, take in the scene, shake a head or make a comment, and then move on. To a trio of inquiring teenage boys, the sign-holding women brusquely refused to explain their views and referred the youngsters dismissively to a Web site. Nothing approaching conversation occurred until a woman slowed her pace along the sidewalk and announced with anger and hurt that her husband had been fighting in Afghanistan for their freedom to do what they were doing.

  “If he gave us that freedom, why can’t we use it?” countered Katherine Hockenbarger, who held the “Dead Soldiers” sign.

  A pained look flickered across the woman’s face. She walked slowly past, said calmly that she was from a military family, and mentioned that her father had fought in Vietnam.

  “Shame on him!” shouted Abigail Phelps, Shirley’s younger sister. “That worked out well, didn’t it?”

  The woman told them that in three weeks her husband was being deployed again to Afghanistan. Perhaps she was searching for a thread of compassion, but Phelps replied acidly that he should simply not go. The woman walked on, mumbled that he had no choice, then turned and shouted over her shoulder at the protesters, “Go to Canada!”

  “You’re never gonna win that war!” Phelps yelled back. “They’re coming home in body bags!” The woman descended into the Metro.

  Albert Snyder of Maryland had no such encounter near the funeral of his son Matthew, a marine who died in an accident in Iraq, but television reports of the protesters so infuriated him, and later visits to Westboro’s Web sites so disgusted him, that he sued successfully for invasion of privacy and infliction of emotional distress. A jury award of $10.9 million, although reduced by a federal judge to $5 million, alarmed some lawyers who saw in the case an opening for civil suits to undermine First Amendment rights. Then a panel of the Fourth Circuit overturned the award, calling the “distasteful and offensive words” constitutionally protected.63 The Supreme Court agreed, ruling 8–1 that the First Amendment sheltered the protesters because they had addressed “matters of public concern,” not private issues, and had stood 1,000 feet away, without interfering in the funeral.

  The decision appeared to leave localities with the power to regulate the time, place, and manner of such demonstrations as long as the message itself was not targeted. In forty-four states, legislators had gone into action to shield the most emotional times and places from intrusion. The majority of the laws they passed protected all funerals, but some statutes specified military services, which First Amendment scholars thought might proscribe only certain messages, undermining their “content neutrality” and thereby their constitutionality.

  Like the buffer zones created around abortion clinics, the funeral laws drew lines around churches, cemeteries, and funeral homes to keep demonstrators fifty to five hundred feet away. Some allowed picketing no later than an hour before and no earlier than an hour or two after the service. Phelps-Roper had no problem with such restrictions, said that her group obeyed them after contacting local authorities in advance, and wouldn’t challenge most of them in court.64

  But a couple of the laws included floating buffer zones, requiring a certain distance from funeral processions. Those were contested, she explained, because demonstrators who stood peacefully on a street could suddenly find themselves in violation as a motorcade passed by. Missouri was such a case, as a prosecutor in McDonald County indicated by telling her in a letter that the law’s prohibition of picketing “in front of or about” a funeral “will be interpreted to apply to processions to and from the cemetery.”65 As an attorney herself, Phelps-Roper understood the case law and knew that the Supreme Court had struck down a fifteen-foot traveling buffer surrounding patients going to and from abortion clinics. A federal judge in Cleveland overturned Ohio’s floating buffer zone for funerals while leaving the other provisions intact.66

  The flurry of suits brought limited results as lawmakers efficiently revised statutes to respond to judges’ objections. The Missouri legislature passed a contingency backup in advance: if the vague prohibition “in front of or about” were found unconstitutional, a three-hundred-foot buffer would automatically go into effect. A federal judge granted summary judgment declaring the original restriction and the contingency section unconstitutional.67 As soon as a federal judge overturned a Kansas law for vagueness in limiting protests to “before” and “after” services, the legislature amended it to impose precise limits of one hour before and two hours after, with a minimum distance of 150 feet. In 2008, the Kansas Supreme Court found that the law violated the separation of powers by containing a built-in injunction preventing it from taking effect until judged constitutional. Four weeks later, an agile legislature put the same statute, minus the injunction, before Democratic governor Kathlee
n Sebelius, who said she was signing it “to shield their families from the despicable and disgraceful displays of those seeking publicity.” She thereby added to the publicity.

  The Westboro cult is a classic case illustrating Oliver Wendell Holmes’s observation that the Constitution guards “the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”68

  Widely accepted ideas don’t come up in court. “The First Amendment is very much the province of ranters, provocateurs, troublemakers, lunatics,” said Ronald K. L. Collins, head of the First Amendment Center. “Your average, play-it-safe kind of person doesn’t tend to provoke,” and so doesn’t need the protection. But how much protection should grieving families receive from hateful ideas in their most vulnerable moments?

  Regulating the “time, place, or manner” of demonstrations is a well-established right of the state, as long as a compelling government interest and alternative means of communication exist, and provided the restrictions are content neutral—that is, “without reference to the content of the regulated speech.”69 Some funeral laws fall short on that score. Idaho’s, passed in 2007, applies to those who disturb “maliciously and willfully the dignity or reverential nature of any funeral, memorial service, funeral procession, burial ceremony, or viewing of a deceased person.”70 Pro-war demonstrators at a soldier’s service would presumably pass muster. It is remarkable how often lawmakers ignore this principle and others handed down by the Supreme Court.

  “If you have a funeral procession going down the street, imagine that Dr. Smith had just died,” Collins explained. “Dr. Smith performed abortions for a quarter century. Along the route there are demonstrators on both sides of the streets. On one side are people yelling, ‘Murderer! Baby killer!’ These statutes would prohibit that. On the other side are people holding up signs saying, ‘Supporter of Women’s Rights.’ It is curious that people on one side would be subject to these laws, the other wouldn’t.”

  The street is a long way from the legislature and the courtroom. It’s a place where police and prosecutors frequently make up rules as they go along, creating slippage between what is written by the lawmakers and the judges and what is done in the intricate, fast-paced moments of enforcement.

  The Phelps clan, videotaping their demonstrations, once caught a flagrant example of a uniformed officer (they called him “Sheriff”) in Mayville, Wisconsin, trying to prohibit a particular message near a soldier’s funeral. “I don’t want to see that sign,” the officer told the picketers. What sign? one asked, inducing him to read it aloud. “ ‘Thank God for Dead Soldiers.’ I don’t want to see that sign.” He added: “You will not desecrate my flag in my county.”

  When a couple of demonstrators challenged his attempt to suppress particular content, he reached for a security rationale: “I think some people may read those signs and be so offended that they may storm from across the street and cause harm to you. I don’t want any crimes to be committed against anybody in my county.” A male voice replied, “You’re a Nazi, that’s what you are.” And the officer then said, “I’m going across the street, and if I find anybody who’s making a threat toward you, I may come over here, and I may ask you to leave.” The male denounced that as a “heckler’s veto,” an unconstitutional policy that would award, to any threatening person, power to silence speech he disliked.71

  The rule of law seemed wholly absent when Shirley Phelps-Roper was charged with flag desecration in Nebraska. The state statute, along with all others, had effectively been ruled unconstitutional more than two decades earlier by the Supreme Court in its flag-burning case, Texas v. Johnson, but when she mentioned that decision, the cop who made the arrest told her, “We’re not in Texas.” Did he really not know that Supreme Court opinions apply nationwide?

  The county attorney, Lee Polikov, displayed no more respect for the Court’s ruling. “Keep in mind that was a 5–4 decision,” he told me, as if the narrowness of the vote weakened its force as precedent. It was a “different time, different facts,” he said, because it was “a war protest in a public place. I distinguish that from someone who inserts themselves into the private sanctity of an individual family’s private funeral.” Yet Phelps-Roper was also in a public place, and the content of her message was irrelevant under settled law.

  She was obeying Nebraska’s statute requiring a distance of at least 300 feet, Polikov conceded. She was actually about 1,200 feet away, she said, with a phalanx of bikers in between. Wherever she was, Polikov decided, it was still too close, although nothing in the law supported his view. “If Shirley Phelps-Roper were across town, I don’t think it would have been a problem,” he argued. “My job as county attorney is to keep the peace and to balance the interests of members of our society.”

  “His job isn’t to be a grand balancer,” Collins countered when I told him of Polikov’s position. “His job is to enforce the law.”

  But Polikov was inventing his own law (this is called activist when applied to liberal judges), which seemed based on some down-home wisdom trying to pass as legal principle. He told me that his clerk had relayed this gem of insight: “My grandmother says your rights stop where mine begin.” The prosecutor liked that and found it precisely on target in this case—although actually, in our constitutional system, rights overlap and coexist. “I think an action at someone else’s burial service is provocative and is tempting to other people to breach the peace,” he declared.

  So he decided that Phelps-Roper, by having her son stand on the flag and by wrapping an army flag and an American flag around her waist, had in effect uttered “fighting words” that might have sparked violence and therefore could be punished. The trouble was, nothing of the sort was mentioned in Nebraska’s law, which made the crime simply “mutilating, defacing, defiling, burning, or trampling” a flag, period—unrelated to its purpose or consequence.72 The dissenters in Texas v. Johnson, led by Rehnquist, had argued that burning a flag constituted “fighting words,” but they had been overruled by a majority noting that in Texas (as in Nebraska) another law on disturbing the peace was available. In fact, Polikov charged her under that as well.

  His reasoning had Collins, the First Amendment expert, practically sputtering in distress at the prosecutor’s fanciful notion that he could take an unconstitutional law and, all by himself, make it constitutional by attaching a Supreme Court doctrine, especially one that had become nearly extinct. “Flag desecration statutes are unconstitutional. You cannot take an unconstitutional statute and graft onto that ‘fighting words,’ ” Collins declared. Besides, he said, “if any time somebody does something provocative you can come in and charge ‘fighting words,’ you’re not going to have much First Amendment worth saving.”

  County Attorney Polikov did not seem to know that the “fighting words” doctrine announced in Chaplinsky in 1942 had been narrowed severely by the Court in 1992, made inapplicable unless there was a complete lack of discrimination against a particular viewpoint. Fighting words were a means of communication like a noisy sound truck, Justice Antonin Scalia had written, and “the government may not regulate use based on hostility—or favoritism—towards the underlying message expressed.”73 This had rendered prosecutions under the concept very rare.

  Polikov also charged Phelps-Roper with negligent child abuse because she had put her small boy into “a potentially dangerous situation.” There could have been “a bad reaction from bikers, soldiers, firemen.” The prosecutor had been impressed by the absence of children in films he’d seen of protests from the 1960s. Evidently, he didn’t know about the 1963 Children’s Crusade during the civil rights movement, when youngsters flooded the streets of Birmingham, Alabama.

  The prosecutor imagined danger where it hadn’t occurred. He conceded that there had been no violence. He did not know of any threats, if family members had seen the posters, how “fighting words” were defined, of any other cases brought under the Nebraska flag law, or whether a child ne
gligence charge had ever been lodged for taking a youngster to a demonstration. He admitted that he’d have a tough time making the case but wanted to see what the court would say. On the eve of the trial, however, he and Phelps-Roper reached an agreement: he dropped the charges, and she dropped a federal lawsuit against him for malicious prosecution. A month later, a federal judge ruled the Nebraska flag desecration law unconstitutional.74

  Polikov portrayed himself as devoted to free speech while noting that the freedom was not unlimited. “You can’t yell fire in a theater,” he said, getting it wrong by leaving out the “falsely” in Holmes’s famous dictum. Yet he opposed a constitutional amendment banning flag desecration. “Personally, I don’t like the argument that the flag, as an entity in and of itself, is sacred,” he said. “That just becomes too difficult to prosecute. If my tie of choice has a flag on it, is that all right? If I have underwear with a flag, am I violating it? The issue should be how your words are used, how your acts are used. Are they violent? Are they dangerous?”

  More dangerous is the imposition of silence, as some in law enforcement understand. The point was made outside Arlington National Cemetery, by a plainclothes supervisor of the Park Police who was watching over the pair of Westboro demonstrators. He was an older man, seasoned by a lot of protesters, and if their speech were suppressed, he observed, the bludgeon of censorship could then be brought against your speech or ours.

  The Phelps clan argues another way, that God gave the United States the First Amendment as the most beautiful garment, “the crowning jewel,” as they put it, “the brightest star in the constellation.” And America was now shedding God’s precious gift.

  But not quite. A middle-aged woman passed the picketers, then turned over her shoulder as she waited to cross the street, and said, “You wouldn’t be able to do that in another country.”