Home Politicians Webb on Why Westboro Baptist Church “Speech” Not Protected by 1st Amendment

Webb on Why Westboro Baptist Church “Speech” Not Protected by 1st Amendment


I can’t embed the video of this interview, but check it out at Vivian Paige’s blog. In addition to his response on the viciously homophobic (and generally insane) Westboro Baptist Church’s 1st Amendment rights (or lack thereof), Webb also discusses the Defense Secretary’s decision to shut down JFCOM.  

On the first issue, I have mixed feelings, but the more I think about it, the more I believe that this group’s hate speech, despite being utterly despicable, is probably protected under the 1st Amendment.  In fact, the only legitimate reason I can think of why it should not be protected stems from the Schenk case, if “the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”  If that’s the case with the Westboro Baptist Church, that it makes people so angry that it incites them to violence, then how would the 1st Amendment protect all kinds of speech that we disagree with, find intolerable, feel enraged about, etc?  As much as I despise the Westboro Baptist Church and wish I never had to hear from them again, I can’t think of a justification for denying them their 1st Amendment constitutional rights.

On the second issue, I think it’s totally appropriate for the Virginia delegation to ask tough questions of Secretary Gates about his decision. In the end, though, it’s his decision, and I don’t believe the Virginia delegation can do a great deal about it in the end.

P.S. Excellent job by Vivian on this interview, and also on the one with Glenn Nye. Like Webb, Nye argues that the 1st Amendment doesn’t cover the Westboro Baptist Church’s disruption of military funerals, and that JFCOM shouldn’t have been shut down. Your thoughts?

P.P.S. If the Westboro Baptist Church’s hate speech isn’t protected, then I’m not sure how flag burning, Koran burning, bible burning, etc. would be protected either.  

  • blue bronc

    The most common comparison is the American Nazi Party in Skoke, IL.

    The group survives by people suing them.  It is easy money because no judge has or will decide against their 1st Amendment right to be obnoxious asses. I would also like to point out that the group was without notice as they spent years trying to disrupt the funerals of LGBT people. It was not until they made the money decision to be obnoxious at soldiers funerals that there was any press for them.

    The best way to keep them rounded up is with the barrier crowds. The more the better surrounding the cemetery.

    Legislatively the approach looked at most is to limit the physical access, that keeps them from nose meeting fist yet allows their horrid speech to be heard. The example most used is the distance limits on anti-women haters at womens birth control centers.  The SCoUS has upheld that restriction.

  • alaric1224

    The reason I believe this case can be distinguished from the Schenk case and it’s reasoning for the limitation on free speech is a result of the nature of the 1st amendment.  The 1st amendment was designed to protect individuals from government interference with their right to speak their minds.  As such, the government can only pass laws that limit free speech in situations where it might cause public endangerment.  

    In this case, if I understand it correctly, the father of the dead soldier sued Westboro Baptist Church for intentional infliction of emotional distress and won.  The government passed no law.

    The question then is not one of how can we allow flag, koran, and bible burners and ban this, because the elements of intentional inflection of emotional distress would likely not arise in those cases.  The question is more of the legitimacy of the tort action – the 1st amendment does not protect your right to free speech against suits alleging tortious assault, so why would it protect against suits alleging tortious infliction of emotional distress?

    It’s a tough case – but free speech would be done no terrible damage if Westboro loses the case, as it is merely an instance of saying that yes, you have free speech, but that does not limit your liability for certain common-law torts.