Fred Phelps, best known for “protesting” at military funerals by alleging that God is killing soldiers because He “hates fags”, is involved in a case that will be heard by the supreme court. A few years ago, Albert Snyder sued Phelp’s church for its “protest” at his son’s funeral and won a $5 million settlement. This verdict was recently reversed on the grounds of the First Amendment. While the legal issue will be hashed out by the supreme court, the ethics of the situation are philosophically interesting.
As I have argued in other blogs, it seems reasonable to accept that people have the right to freedom of expression. While I am not a committed utilitarian, I think that Mill makes an excellent case for this freedom in his work on liberty. Allowing free expression certainly does seem to consistently create more good than harm, and this seems to justify accepting it as a general moral guide (with some notable exceptions).
Of course, it also seems reasonable to accept that people have a right to privacy. This includes not just a right to not be infringed upon by the state, but also the right to not be intruded on by other private individuals. As with the right of expression, this right can be argued for on utilitarian grounds. It can also be argued on other grounds, but I will not go into such arguments.
The case involving Phelps is a case in which these two freedoms or rights clash. The general moral problem here involves sorting out which right or freedom trumps the other and the specific problem is whether or not the right of free expression of the “protesters” outweighs the right to privacy of the people involved with the funerals.
My initial thought, prior to deep reflection, is that the “protesters” do have the right to engage in their activity, provided that they remain on public ground and do not actually interfere with the funeral by disrupting the event itself. However, my initial thought is that they should not be doing such a thing, because it is cruel and insulting. As such, I think people should have a right to say mean and hateful things but that they should not exercise that right.
Upon reflection, I found that I came to the same results. As part of the process I considered the various grounds on which a person’s freedom of expression can be justly limited. While this is rather oversimplified, the general principle is based on the principle of harm: unless the expression can be shown to create a significant and unwarranted harm, then the expression should be allowed. This is what justifies denying people the right to shout “fire” in crowded theaters and the right to engage in slander.
Of course, it could be argued that Phelps and his cohorts are actually causing emotional harm and this justifies silencing them. I can imagine what it would be like trying to bury a son, daughter or parent while hate filled people are screeching such horrible things. I would be outraged at their insensitivity and appalled at the wickedness in their souls. I would be deeply hurt that my loved one was laid to rest to the sounds of foul mouthed vultures cursing and carrying on in their mad rage. I would want them to fall silent and leave, preferably after being tased.
However, considering the matter in the light of calm reason, I must argue that we have no right to silence these “protesters.” The fact their words and actions offend, even deeply and profoundly, is not adequate grounds for silencing them. After all, adopting the principle that people have no right to expression that others find offensive would restrict the freedom of expression in a very harmful way. To use but one example, some people find the idea that women are entitled to equal rights to be deeply offensive to their religious values. However, it would not be right to restrict people from saying such things. Roughly put, we have no right to not be offended.
That said, I still hold that although they have the right to express such ideas, they should not do so. Doing such things at a funeral is disrespectful and insulting to the dead and those who care about them. It is, to say the least, a wicked action. But, it is also one that should be tolerated.
Of course, this does not mean that there should not be restrictions placed on such “protests.” After all, those at the funeral have a right to not have their somber moment sullied by such “protests.” As a practical matter, they should be required to be out of sight and sound of the funeral ceremony. This does not interfere with their right to express their ideas-after all, they do not actually need to disrupt the funeral in order to express their views. After all, we have no right to needlessly annoy people.