Skip to main content

Even vile funeral protests are free speech

By Gabe Rottman, Special to CNN
August 8, 2012 -- Updated 1529 GMT (2329 HKT)
Gabe Rottman says Westboro Baptist Church's hateful protests, such as this one, are protected speech.
Gabe Rottman says Westboro Baptist Church's hateful protests, such as this one, are protected speech.
STORY HIGHLIGHTS
  • A new law expands limits on political protest on public land near military funerals
  • Gabe Rottman: Bill targets Westboro Baptist Church, which rallies at military funerals
  • WBC's claim that troops die as divine retribution is protected by First Amendment, he says
  • Rottman: All political speech, even if it's unpopular or hateful, must be protected under law

Editor's note: Gabe Rottman is a legislative counsel and policy adviser with the Washington Legislative Office of the American Civil Liberties Union.

(CNN) -- When men and women enlist in the military, they take an oath to support and defend the Constitution, including the First Amendment, against all enemies, foreign and domestic, and affirm that they will "bear true faith and allegiance to the same."

That oath is betrayed by legislation that sneaked through the House of Representatives last week and was signed into law by the president Monday.

Known as the "Sanctity of Eternal Rest for Veterans Act," it passed as a small piece of an otherwise unexceptional omnibus veterans' bill. It would broadly expand existing restrictions on political protest on public land near military funerals. Notably, the ACLU of Eastern Missouri is actively litigating against similar state legislation that is far narrower in some respects.

Protests cannot be held within 300 feet of the cemetery, and the law bans conduct that blocks someone from entering or leaving the cemetery within a 500-foot radius. Protests are prohibited two hours before the funeral through two hours afterward. It similarly expands restrictions on protests at government cemeteries and gives people injured by the protest a right to sue.

Gabe Rottman
Gabe Rottman

Although it covers all protests near military funerals, the law is targeted, at the Westboro Baptist Church, and that's a First Amendment problem in and of itself. Its members believe that the wars in Iraq and Afghanistan, and the attendant casualties, are divine punishment for America's acceptance of lesbian and gay rights. They protest outside military funerals to publicize their beliefs -- holding signs that say "Pray for More Dead Soldiers" and "God Killed Your Sons" -- but do not cause any disruption of the funeral proper.

Now, as repellent as these protests are, they are a permissible exercise of the freedom of speech. If the First Amendment means anything, it's that the government cannot target a group for censorship because it disagrees with the group's message. This legislation does exactly that.

Foo Fighters vs. Westboro Baptist Church

Sen. Olympia Snowe, R-Maine, introduced the bill a month after the Supreme Court ruled in Snyder v. Phelps that, as lawful speech on a public issue, Westboro Baptist Church protests warranted the highest protection of the First Amendment against state tort claims.

But the imprudence of this legislation goes further. Part of the public reaction to Westboro Baptist protests, as happens with much unpopular political speech, are counterprotests. Those would likely be barred as well by the expanded law, under its "tendency to disrupt" language. If the counterprotests are immune from the law's reach because the government agrees with their message, the law will be doubly unconstitutional.

The issues raised by this new law are a lot like those in the dust-up after Chick-fil-A CEO Dan Cathy spoke out against same-sex marriage. I agree that Chick-fil-A shouldn't be celebrated as some sort of free speech hero, and if you choose not to indulge in a Chick-fil-A chicken sandwich in protest of intolerance, more power to you.

But I'm more concerned by the suggestion of a Chicago alderman that he would go so far as to block a local Chick-fil-A franchise's building permit simply because of Cathy's views, rather than any discriminatory policy of the chain. In some ways, a willingness to ignore the law to shut down someone with whom you simply disagree is worse than Cathy spouting off against marriage equality.

Part of living in America means putting up with words with which you not only disagree but that offend deeply. This is especially true when, as in the Westboro Baptist Church case, the words actually carry a political message.

The expansiveness of the new law violates this core principle. It isn't about protecting the solemnity of a soldier's funeral; that's already fully protected under existing trespass, private property and disorderly conduct laws. It's about censoring unpopular speech. That is inconsistent with the law, the Constitution and the military's oath to the Constitution.

Follow @CNNOpinion on Twitter.

Join us at Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Gabe Rottman.

ADVERTISEMENT
Part of complete coverage on
September 22, 2014 -- Updated 1259 GMT (2059 HKT)
You could be forgiven for thinking no one cares -- or even should care, right now -- about climate change, writes CNN's John Sutter. But you'd be mistaken.
September 21, 2014 -- Updated 2132 GMT (0532 HKT)
David Gergen says the White House's war against ISIS is getting off to a rough start and needs to be set right
September 22, 2014 -- Updated 1300 GMT (2100 HKT)
John Sutter boarded a leaky oyster boat in Connecticut with a captain who can't swim as he set off to get world leaders to act on climate change
September 22, 2014 -- Updated 1917 GMT (0317 HKT)
Ruben Navarrette says making rude use of the Mexican flag on Mexican independence day in a concert in Mexico was extremely tasteless, but not an international incident.
September 22, 2014 -- Updated 1359 GMT (2159 HKT)
Michael Dunn is going to stand trial again after a jury was unable to reach a verdict; Mark O'Mara hopes for a fair trial.
September 22, 2014 -- Updated 2315 GMT (0715 HKT)
Is ballet dying? CNN spoke with Isabella Boylston, a principal dancer at the American Ballet Theatre, about the future of the art form.
September 19, 2014 -- Updated 2147 GMT (0547 HKT)
Sally Kohn says it's time we take climate change as seriously as we do warfare in the Middle East
September 24, 2014 -- Updated 0017 GMT (0817 HKT)
Laurence Steinberg says the high obesity rate among young children is worrisome for a host of reasons
September 19, 2014 -- Updated 1302 GMT (2102 HKT)
Dean Obeidallah says an Oklahoma state representative's hateful remarks were rightfully condemned by religious leaders..
September 19, 2014 -- Updated 1922 GMT (0322 HKT)
No matter how much planning has gone into U.S. military plans to counter the Islamic State in Iraq and Syria, the Arab public isn't convinced that anything will change, says Geneive Abdo
September 19, 2014 -- Updated 1544 GMT (2344 HKT)
President Obama's strategy for destroying ISIS seems to depend on a volley of air strikes. That won't be enough, says Haider Mullick.
September 19, 2014 -- Updated 1303 GMT (2103 HKT)
Paul Begala says Hillary Clinton has plenty of good reasons not to jump into the 2016 race now
September 19, 2014 -- Updated 1501 GMT (2301 HKT)
Scotland decided to trust its 16-year-olds to vote in the biggest question in its history. Americans, in contrast, don't even trust theirs to help pick the county sheriff. Who's right?
September 19, 2014 -- Updated 0157 GMT (0957 HKT)
Ruben Navarrette says spanking is an acceptable form of disciplining a child, as long as you follow the rules.
September 19, 2014 -- Updated 1547 GMT (2347 HKT)
Frida Ghitis says the foiled Australian plot shows ISIS is working diligently to taunt the U.S. and its allies.
September 19, 2014 -- Updated 1958 GMT (0358 HKT)
Young U.S. voters by and large just do not see the midterm elections offering legitimate choices because, in their eyes, Congress has proven to be largely ineffectual, and worse uncaring, argues John Della Volpe
September 19, 2014 -- Updated 0158 GMT (0958 HKT)
Steven Holmes says spanking, a practice that is ingrained in our culture, accomplishes nothing positive and causes harm.
September 18, 2014 -- Updated 1831 GMT (0231 HKT)
Sally Kohn says America tried "Cowboy Adventurism" as a foreign policy strategy; it failed. So why try it again?
September 18, 2014 -- Updated 1427 GMT (2227 HKT)
Van Jones says the video of John Crawford III, who was shot by a police officer in Walmart, should be released.
September 18, 2014 -- Updated 1448 GMT (2248 HKT)
NASA will need to embrace new entrants and promote a lot more competition in future, argues Newt Gingrich.
September 16, 2014 -- Updated 2315 GMT (0715 HKT)
If U.S. wants to see real change in Iraq and Syria, it will have to empower moderate forces, says Fouad Siniora.
September 18, 2014 -- Updated 0034 GMT (0834 HKT)
Mark O'Mara says there are basic rules to follow when interacting with law enforcement: respect their authority.
September 16, 2014 -- Updated 1305 GMT (2105 HKT)
LZ Granderson says Congress has rebuked the NFL on domestic violence issue, but why not a federal judge?
September 16, 2014 -- Updated 1149 GMT (1949 HKT)
Mel Robbins says the only person you can legally hit in the United States is a child. That's wrong.
September 15, 2014 -- Updated 1723 GMT (0123 HKT)
Eric Liu says seeing many friends fight so hard for same-sex marriage rights made him appreciate marriage.
ADVERTISEMENT