We all know that as an individual, we possess the right to freedom of speech. But once those speeches have turned into a “hate speech”, affect a group of people and disturb the peace, it is when measures should be taken.
Cohen v. California / Chaplinsky v. New Hampshire as precedents:
In 1968, Paul Robert Cohen was arrested for wearing a jacket that said “Fuck the Draft”. In his defense, Cohen said that he did not mean any harm by it, that it was just his personal expression to oppose the war in Vietnam. However, he went against a California law. A law that did not allow any form of bad conduct that would propel a violent act by the speaker or by the people around him. “This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called "fighting words," those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.” (Cohen v. California) It was the use of words on his jacket, the way it was projected and communicated to the public that got him in trouble. One of the Constitution's reasoning for not protecting Cohen was “(2)much provocative language does serve the function of communicating both ideas and emotions” (Tedford and Beck 175)
In Westboro's case, their hate protests would certainly not be protected. Members might have been just voicing out what they believed in, just like Cohen. However, a funeral is a sacred moment for the fallen soldiers and their families and the protests serves as a disturbance of peace. These families who have lost their loved ones are dealing with so much emotions as is and hearing chants and seeing hurtful picket signs would just intensify or add on to their emotional state of being even more.
Moreover, the Westboro case highly touches upon the offense and respect theory. In Chaplinsky v. New Hampshire case, Walter Chaplisnky, a Jehovah's Witness preached in the streets of Rochester, New Hampshire that organized religion was a racket. When he was taken to the precinct, he then cursed at a city marshal (someone of authority) calling him a Fascist and saying “You are a God damned racketeer”. Though Chaplinsky did not have any weapon on him to cause physical threat, his speech was not protected because they “incite(d) an immediate breach of the peace” (Tedford and Beck, 170). More importantly, he used offensive language to another person in a public place which was a violation to the public laws of New Hampshire.
Westboro's message might not be solely directed to the deceased but to America as a whole. Nevertheless, they used the deaths of the soldiers as an excuse to rally their hate for homosexuality. Not only were the messages controversial but they are also hurtful, offensive and disrespectful which have already angered many people, especially those families who were mourning for their loss. Surely, this in itself provoke the violation of peace. Although the members' intentions were mostly emotional harm and not physically harm, the receivers of their message could break out and engage in physical harm due to anger thus jump starting the breach of peace.
Furthermore, though the church members used standing far away from where the funeral was being held as a strategy to not “invade privacy”, they were still around the funeral's vicinity and bystanders and people in their vehicles passing by were still able to see them. It wasn't like they were doing these protests quietly, they really wanted to get their message across and be heard.
In conclusion, the protests of the Westboro Baptist Church should not be protected. They are clearly engaging in hate speech that serves as offensive and disrespectful expressions towards a group of people. It is a mere expression on their beliefs and faith but a prejudice towards a certain group. Clear and present danger might not apply however bad tendency does. Using foul and offensive language and messages-- repeatedly outside funerals definitely shows immediate incitement.
I was perplexed by Venus’s initial statements concerning Cohen v. California, in her opening paragraphs. Using Cohen v. California as a case to support the punishment of the Westboro Bapitish Church seems counterintuitive, as the Supreme Court reversed the decision of the trial court, judging that “shocking language that is not legally obscene and not directed at an individual hearer in such a way as to provoke a person to violence is protected by the Constitution” (175, Tedford & Herbeck). The Court’s decision in Cohen narrowed the definition of “fighting words” as previously defined in Chaplinsky “to words that actually are directed to another in such a way as to create a danger of breach of the peace” (175, Tedford & Herbeck).
ReplyDeleteThis is not to say I do not empathize with the families of fallen soldiers whose funerals are being protested by the Westboro Batist Church. However, I do not believe that Cohen v. California is an adequate case to base the punishment of the Phelps family on. Justice Harlan pointed out in Cohen’s case that there were no captives to his message, “for they could either leave or simply look away” (175, Tedford & Herbeck). The Phelps family similarly has no captive audience members. Standing in public places, a certain distance from the funerals of those lost at war, there is no member of society that must listen and adhere to the picket signs. It is based within these arguments that I disagree with Venus that the Westboro Baptist Church would be punished for their acts of speech.
I agree with Venus in terms of her observation that under Chaplinsky v. New Hampshire as well as the Offense Theory the speech of the Phelps family would be punishable. However, to punish the Westboro Baptist Church, one would also have to overturn Virgina v. Black and Chaplinsky v. California, which have aided significantly in the progress of our nations rights of free speech. Examining the present cases dealing with similar instances of hate speech, I do not believe that the Westboro Baptist Church should be punished.
Though my personal thoughts, after reading upon the facts and figures of Westboro’s history, sway toward not protecting their speech as Venus argues, I would have to say that under the First Amendment, their free speech rights must be granted. I don’t believe that any members of the Westboro church have actually harmed the public. They make sure to stay a distance away from any funerals and do not force physical harm upon citizens – though I am not saying that either of these are an “excuse” to protect Westboro, they are simply the facts. I would argue that the public’s reactions and even physical actions toward members of the Westboro church could be even more disrespectful. According to the BBC documentary on Westboro church, Westboro children were physically harmed and offended by the public – and the public was not punished. Should we punish these children with picket signs?
ReplyDeleteIt is true that these signs are offensive to many and disrespectful to a certain extent, however, the legal significance of Cohen v. California was that it got reversed because the language used in this case was neither obscene or of fighting words, though the phrase was, “Fuck the Draft,” which one might be offended by. This type of expression, however, is protected by the Constitution because of three concrete reasons: 1) it is not possible to tell citizens a list of acceptable and non-acceptable words or phrases, 2) provocative language communicates valuable ideas and emotions, and 3) when the state attempts to prohibit certain words, they are also suppressing or limiting ideas. That is why Westboro Church would still be protected under the Constitution, despite the hurt and offense some people might take.
The Westboro Baptist Church case had me on the fence for a long while. I wasn’t sure if I would choose to punish them out of more disgust for their actions, or to protect because they really haven’t done anything technically classified as unlawful. As it was outlined in Brandenburg vs Ohio, boycotting peacefully doesn’t constitute violence. I mean Venus says, “The protests serve as a disturbance of peace.” But I mean the boycotts are far away from where the funeral is being held. So it brings up the Virginia vs Black case, in that case (from my understanding) your allowed to burn a cross on your own property as long as they aren’t targeted specifically at a certain group, you have a permit and it’s on your own property. The Westboro protesters, although within sight of the funeral, technically aren’t invading privacy of the funeral by actually protesting at the funeral. They also from my understanding aren’t saying to incite violence or naming anyone specifically. I mean applying an intermediate scrutiny. If you were to remove time, place, and context from the situation they are just expressing themselves against homosexuality. I think an interesting point Venus brings to light, the fact that though the church intends to create emotional harm and not physical harm, there is still the possibility that the receivers of the message could break out and engage in physical harm due to anger. I mean this would make the person who engaged in physical harm, the one who acted illegally and not the Westboro church. So technically this sounds more like a risk factor, than something against he church’s actions. So even if I don’t advocate the church, they aren’t doing anything illegal (just something disrespectful).
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