As you know by now, Fred Phelps has died.
When the news hit that he was in hospice there was immediate speculation as to what the reaction to his funeral would be. Would people show up to protest? That was certainly the first thought a lot of people had. But there was also a large response from those communities that had more of an investment in it, because they had been hurt more so by Westboro, that perhaps the best response would be to show up and act as respectful, loving supporters of those who grieve. Should we mourn the loss of Fred Phelps the same way that we publicly mourn any other public figure? The automatic answer seems obvious – regardless of political affiliation, most people saw him as the bad guy. Even those sympathetic to his message hated his methods. And while it might seem like those who hated his message might appreciate how MUCH of a bad guy he made himself, that he made those who supported his message look so bad, his approach to spreading his ideas was so repellent that even those he inadvertently helped just wanted him to stop talking.
What do we do with a figure that is so universally despised? What do we do with speech that is so repugnant that even those who may like the philosophy can’t abide the actual message?
The answer we came to, or at least the one that the Court came to, was a tough pill to swallow. The final conclusion was that even the most offensive speech is deserving of our protection. The reasoning was that Westboro Baptist spoke publicly on public issues, and was not aiming to pick a private fight, and public speech is exactly what the First Amendment is designed to protect, regardless of how the public responds to it. In this way, we protect our right to discuss the issues of the world that pertain to us, our lives, and our governance. Put in these terms, it seems a straightforward answer, but the reality of freedom is that it is not always a pretty thing.
I teach a class on freedom of expression, and we always spend at least one day on the Westboro decision. It is a tricky day because the topic is an emotional one, and depending on the make-up of the class, can be even more so because of family connections, or personal and professional history. It is often the case, however, that the majority of students end up understanding, perhaps even agreeing, with the majority decision of the SCOTUS in the Westboro decision: that the worst speech must be protected. By that point in the semester many of them are learning to separate their personal response to an issue from the judicial or legal response to an issue, and the transition can be a difficult one. There was one year that a particular student, who I will call Jane, was one of the fiercest defenders of freedom of expression from the beginning of the semester to the end. She became quite a force to reckon with as she learned the vocabulary and some of the case histories. But she adamantly defended Phelps’ right to voice his opinion, regardless of how abhorrent it was. She was not a free speech absolutist, but almost always erred on the side of personal liberty, and the Westboro case was no exception.
A year later, tragedy struck Jane’s hometown, and Westboro Baptist church showed up. They were there with their usual tripe and Jane witnessed firsthand the effect that Westboro had on a community. She wrote me an email that I read over and over again, each time with a different reaction. Jane wrote to tell me she had changed her mind about the lengths to which freedom of expression should go. She wasn’t mad at me, and she wasn’t trying to tell me that I had taught anything inappropriate, but she wanted to reach out. Seeing the Westboro group in her hometown and feeling those emotions in person effected her so profoundly, that she decided there should be limits on what we can do and say in the public. Someone’s personal freedom should never be allowed to rip a community tear at a community like that – especially one that was already grieving. She closed the email with what amounted to a “thank you.” Jane told me that of all the classes she had taken, this Freedom of Expression class had ended up being one of the most meaningful of her college career. She, like most people who signed up for the class, took it to fill out some credits, nothing more. But she had found that this class ended up being one of the ones that stuck with her the most – she found herself thinking about it often, seeing its importance in the world around her, and now, contending with it most directly in her life after college. It was one of the most profound notes I have ever received from a student. It was not an easy one to respond to.
So what do we do with the life of Fred Phelps?
For me, I still believe in his right to free speech. I still believe what he did was, and should be, protected speech. But it is a painful thing to own up to. He is the perfect example of the dangers of a nation that voraciously protects its liberties. Because people who we find repugnant will have their liberties, too. He is a reminder that liberty and community may not always be the best of bedfellows. That freedom is complex and confusing. And that we can regret our choices, but still not change our minds.
I hope Fred Phelps has found the peace that he was so clearly lacking in life. I hope that his anger is quelled. Mostly, I hope that we remember that our right to public speech can also be used for a great good. I hope we can all choose to speak like this group who, at Westboro’s first protest after Phelps’s passing showed up for the usual counter-protest, but this time with a large sign that simply read, “Sorry for your loss.”
Those of us who think about this issue a lot often paraphrase Justice Louis Brandeis – the remedy to bad speech is more speech. What could we possibly say to somebody like Fred Phelps to counter, let alone drown out, that noise? All I can think is to say with as much sincerity as one can muster the exact opposite of what he screamed from the street corner.
To those of you who work and sacrifice for the nation to keep it safe and running, thank you. To those of you who live in this nation without the full rights and privileges that are guaranteed you, I’m sorry. To those of you who are in pain because of loss or tragedy, I’ll pray for you. And to those who can’t find solace in this world because you live in a universe of us-and-them and there are too many “thems,” or because you don’t believe some people deserve full rights and privileges because they live a different life than you do – I hope you find the love and peace that your heart is missing.
I guess that’s the only speech there is that is left to us.