The safeguards of liberty have often been forged in controversies involving not very nice people.
Phelps was an accidental First Amendment champion who ended up strengthening the safeguards of liberty.And so few tears were shed for Fred Phelps, who died on March 19. Labeled a preacher of hate, Rev. Phelps led the Westboro Baptist Church, a group known for its virulent opposition to homosexuality and for picketing the funerals of military personnel, whom they believe God kills to punish a nation that tolerates homosexuality. From a library of placards, several with hurtful language are chosen for each picket: “God Hates Fags,” “God Hates You,” and “Thank God For Dead Soldiers.”
I first learned of Fred and Westboro when the U.S. Supreme Court agreed to hear the case of Snyder v. Phelps. Al Snyder is the father of a U.S. Marine killed in Iraq. Fred was one of seven Westboro members who protested the Snyder funeral. Al sued for invasion of privacy and intentional infliction of emotional distress.
I recall making my first contact with Westboro – a telephone call – in 2010 and doing so with some trepidation. Shirley Phelps-Roper, one of Fred’s 13 children and church spokesperson, welcomed my call and scheduled interviews that ultimately totaled dozens of hours.
At the first Sunday service I observed, Fred read from a prepared script in an accent reflective of his Mississippi roots, employing Biblical passages to illustrate the theme of comfort. There was no fire and brimstone that day and no mention of any of the groups that attract Westboro’s wrath outside the church. But there were visual images: placards that read, “God Hates Fags” and “God Hates Fag Enablers,” and t-shirts with anti-gay or anti-Jewish messages in the crowd.
Afterwards, Fred was friendly, and cut an imposing figure at about 6-foot-3. During some small talk, he told me that Walter Cronkite stood for gay rights. The comment came somewhat out of left field, except for the fact that I’m on the faculty at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University. Fred was apparently reminding me that, in his view, I was part of a pro-gay rights workplace.
Even though the years were catching up to him, Fred Phelps, then 80, was very bright. Fred had been a lawyer, inspired by the landmark Brown v. Board of Education school desegregation case that originated not far from his home. After schools across the country and especially in Kansas dragged their feet in integrating, Fred represented many whose rights were being denied. He was honored by many organizations, including the NAACP.
So how did he end up on a path that has created so much anguish? First, there is what I describe as a warped view of Christianity run amok. Westboro was first established in 1955 as a “mainstream” Christian church, but its approach began a downward spiral when Fred reportedly witnessed his then-five-year-old grandson being lured by what he says was a homosexual at a Topeka park. After complaints produced no action, the Phelps’ put up signs warning of homosexual activity. Protests followed.
Second, Fred kept his family/church together by ruling with an iron fist. He became estranged from some of his children, including his son Nate, who has said that physical and psychological abuse were not uncommon. When I asked Fred about this, there was no denial. In a house of 13 children, he said, “you have to have some rules, you have to enforce the rules and sometimes, in an extreme case, you have to spank a child. The Bible says to do that.” The “spankings,” Nate told me, involved beatings with a garden tool.
Fred’s daughter Marge represented her father and the church in the U.S. Supreme Court arguments. She argued that Westboro’s speech was on matters of public concern — homosexuality, the conduct of the military, gays in the military. Marge was virtually flawless in her arguments before the court, in contrast to her adversary, who stumbled and bumbled his way through his presentation and fielding questions.
Marge’s only error was the prediction she made afterwards: “Nine-to-zero!” When the ruling was issued in March 2011, the Court ruled 8-to-1 in Fred’s favor. In his opinion for the Court, Chief Justice John Roberts emphasized that the United States does not punish speech that causes pain: “As a Nation, we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
Many observers may have difficulty distinguishing between Phelps’ actions and his right to freedom of speech. But it’s clear that even hurtful speech can make a positive contribution in a self-governing democracy. As pornographer Larry Flynt — also a winner at the U.S. Supreme Court in a case involving offensive speech — once said: if the First Amendment can protect someone like him, it protects all of us. Phelps was an accidental First Amendment champion who ended up strengthening the safeguards of liberty.
Joseph Russomanno is an associate professor at Arizona State University’s Walter Cronkite School of Journalism and Mass Communication and a faculty affiliate at the university’s Sandra Day O’Connor College of Law. He wrote this for Zocalo Public Square.