In the case of the Westboro Baptist Church from Topeka, Kansas I argue that the protests and actions carried out by them are protected under the first amendment. The people of this church who are mainly relatives of the minister have strong feelings of disgust for homosexuals. Recently they have begun to target their campaign in a new way. They are now holding protests at the funerals for soldiers who have died in Iraq and Afghanistan. They are saying that the reason people are dying is because God is upset with America and the way we are living, i.e. homosexuals. To argue my case I will use Emerson’s expression action theory, and the court cases of Cohen vs. California as well as Virginia vs. Black.
The type of speech that is being targeted here is one that should be protected. The members of this group are expressing their disgust and what they believe to be divine reasoning for so many deaths. Since 1991 the Westboro Baptist Church has led more than 41,226 peaceful protests. [1] This type of speech can be rooted back to the works of Emerson when he argued for the absolute protection of expression in his expression action theory. Emerson’s expression action theory states that, “freedom of expression includes the right to hear the opinions of others, the right to inquire, reasonable access to information, and the rights of assembly and association.”[2] According to this theory all expressions that do not turn into actions should have absolute protection. In the case of Westboro Baptist Church they are doing exactly what Emerson has laid out as expression. According to Emerson they are given the right to hold the protests that they do and say the things they say, as they are expressions.
If we continue on with the expression action theory then we can see that the speech being practiced by these people should be protected. This type of speech warrants full protection until it becomes action. Emerson’s theory tells us that action is when speech becomes more than persuasion; it is when it becomes instructions and preparations. At the point of this Church beginning to give instructions and preparations for violence then their speech would not be protected, as it is no longer expression but now is action. By looking at the expression action theory it is clear that this group has not begun to act, they are expressing themselves and therefore should have full protection to continue protesting.
The key precedents that should be looked at when viewing this case are the precedents that where passed down from the Cohen vs. California case and the Virginia vs. Black case. Examining the Cohen vs. California case we can see that expression was protected. The protected speech in this case was a mans jacket that read, “Fuck the Draft.”[3] Although this case is over an article of clothing, it is still considered expression just as the Westboro Church’s protest rallies are. In this case the court ruled 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 from abridgment by the states.”[4] The words and signs that are shouted by the member of the Westboro Baptist Church are protected under this precedent. Their words are not directly aimed at a single person and are not targeted at people in a way to incite violence. Not only are their words not directly aimed at any one person, they are words of emotions that are being expressed. According to Justice Harlan and the majority opinion in the Cohen vs. California case, “We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.”[5] As we can see from the Cohen vs. California case emotional speech cannot be restrained or restricted. Using this precedent the member of the Westboro Baptist Church would be protected.
A more recent case whose precedent would protect these people as well is the case of Virginia vs. Black. This case resulted with the precedent that as long as the speech does not directly intimidate anyone person or is a true threat then it is protected. In this case Justice Sandra Day O’Connor describes true threats as, “Statements where speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group.”[6] Using this precedent would also protect the people of the Westboro Baptist Church. Under the ruling passed down from the Virginia vs. Black case speech such as the kind being used by the Westboro Church should be protected, as it is not posing a true threat to anyone or being used as direct intimidation.
Using the expression action theory to investigate this case with the Westboro Church, it is apparent that they are simply expressing their views and opinions. They are not giving instructions or preparations to harm any person or groups of people. Cohen vs. California offers a solid precedent to apply to this case. After applying this precedent it is obvious that these people should be protected, as the Cohen vs. California case ruled that speech which is expressing emmotions, such as those felt by the people at the Westboro Baptist Church is protected under the first amendment. The final precedent that was applied came from the Virginia vs. Black case. This precedent also leads to the conclusion that the expressive speech used by the Westboro Baptist Church is protected, seeing how it does not present a true threat to anyone and is not directed at any one person/group in a direct act of intimidation. As a conclusion to this case, using the review process that I did, which included both philosophical and doctrinal grounding, I find without a doubt that their speech is granted full protection under the Constitution.
[1] "Welcome, Depraved son of Adam." Westboro Baptist Church Website. 2010. Web. 31 Jan 2010.
[2] Tedford, Thomas. Freedom of Speech in The United States. 5th. State College, PY: Strata Publishing, 2005. 438. Print.
[3] Tedford, Thomas. Freedom of Speech in The United States. 5th. State College, PY: Strata Publishing, 2005. 175. Print.
[4] Tedford, Thomas. Freedom of Speech in The United States. 5th. State College, PY: Strata Publishing, 2005. 175. Print.
[5] Tedford, Thomas. Freedom of Speech in The United States. 5th. State College, PY: Strata Publishing, 2005. 175. Print.
[6]"Virginia vs. Black." Find Law.com. 07 Mar 2003. Web. 29 Jan 2010.
Jordan does an excellent job of evaluating the hate speech of the Westboro Baptist Church in relation to Cohen v. California and Virginia v. Black. I agree with Jordan’s observations and analysis of Emerson’s expression-action theory.
ReplyDeleteThe Supreme Court’s ruling in Cohen v. California reversed the decision of the original conclusion made by 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 ey could not inhibit the “create a danger of breach of the peace” (175, Tedford & Herbeck). Jordan makes important notice that the Phelps family makes no direct comments to any one individual, but to the American population. Our soldiers are being killed as a punishment of our nation for accepting and supporting America’s LGBTQ community. There is no evidence that the Westboro Baptist Church is attempting to initiate violence from any individual or group – they are, as witnessed in the BBC documentary, spreading the word of God. The family believes they are committing to a service by warning the American population of god’s wrath – their messages is founded upon “deep personal emotions.” As highlighted by Jordan in his examination of Cohen v. California, the Court determined “emotive function” of speech, as it “may be the more important element of the overall message sought to be communicated” (175, Tedford 7 Herbeck).
I am of the same mind of Jordan in his scrutiny of Virgina v. Black in relation to the Westboro Baptist Church as well. According to the Supreme Court’s verdict in Virginia v. Black, “true threat” must exist. Justice O’Connor identified true threat as “expression directed at a person or group of persons that places the victim in fear of bodily harm or death” (181, Tedford & Herbeck). Jordan used a good amount of evidence to illustrate that at no point in time has the Westboro Baptist Church used any extreme measure of intimidation or violence – in fact each of their protests have been peaceful. As witnessed in the BBC documentary, the general public demonstrates a greater amount of aggression and cruelty within their actions toward the Westboro Baptist Church – throwing garbage and shouting profanities - toward the family, including the young children. The words and pickets the Phelps family promotes are offensive and hurtful, yet in no way have they posed any sense of “true threat.”
Taking a moment to reflect on Jordan’s observations and analysis of the Westboro Baptist Church as well as my own examinations, I maintain the hate speech of the Westboro Baptist Church should be protected.
Jordan states that the court case of Cohen v. California is one that would suggest Westboro’s protection of speech, along with Emerson’s expression-action theory, which I fully agree with. Cohen’s reversed case was significant in defining what language meant in legal terms, and concluded that expressions (such as “Fuck the Draft”) are protected under the Constitution because of three main 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. As a result, this is why Westboro Church would be protected under the Constitution, as Jordan rightly argues.
ReplyDeleteJordan also gives the example of the case of Virginia v. Black in which the result was that if speech was not directly intimidating or harmful to any one person, then it would be protected. Westboro Church, though they have rallies, express their thoughts and emotions to make it a peaceful rally. They are never at fault for directly hurting or harming any one person; they are merely expressing their ideas, thoughts and emotions, which are all protected under the Constitution. As long as the people of Westboro Church do not harm or pose a true threat to any citizen, then their rallies should be protected under these cases and groundings that Jordan has named. The Constitution will give them, along with other peaceful-rallying groups, the right to free speech.
I think Jordan is right. Technically the Westboro Baptist Church is protected under the First Amendment. I think he uses the expression action theory from Emerson very well, in explaining his standpoint. From what we’ve read about the Westboro Baptist Church protests, none have really exploded into “actions” as they are defined in Emerson’s concept of freedom of expression. Emerson states that expression becomes action when speech becomes more of persuasion, which is when the speech begins to resemble instructions and preparations. From my understanding, the church never told anyone to go out and create violence for homosexuals or for soldiers. They have just been voicing their support for the deaths of soldiers and homosexuals. Technically supporting death is different from inciting people to go out and kill people. He makes an interesting case using the Cohen vs California example. I mean I didn’t think to consider Westboro church protestors’ actions as emotional speech. Thinking of the way Jordan framed it, it really makes it seem as if they were just expressing opinions and views. He did use Virginia vs. Black, but I was surprised he didn’t make light of the fact that the boycotts were far away from the funerals, and how the situation of cross burning in far vicinity is similar to that of boycotting from far away. He did however use the case well in expanding his argument. I agree it wasn’t intent to commit an act of violence against a group or individual, technically. So even if I don’t advocate the church, I agree with Jordan, they aren’t doing anything illegal (just something disrespectful).
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