Freedom of speech versus hate speech: the case of Westboro Baptist Church

Freedom of speech is widely accepted as a prime human right in a democracy, and no American needs reminding that it forms the basis of the First Amendment to their Constitution, having been added in 1791: “Congress shall make no law … abridging the freedom of speech”. It therefore has a power similar to that of holy writ.

However, other countries have certainly made such “abridging” laws, and the United Kingdom is one of them.

Several laws and statutes currently in force in the UK cover what is generally referred to as “hate speech”. For example, the Racial and Religious Hatred Act of 2006 specifically states that: “A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred.” The Act makes it clear that the expression of such views as part of general discourse or criticism is not illegal, but the line is crossed when the intention of any such expression is to “stir up religious hatred”.

Any prosecution under this Act would therefore have to prove that the perpetrator’s intentions were malign, and that might not always be straightforward.

Racial hate speech is prohibited by the Public Order Act of 1986 that covers words or behaviour that are intended to stir up racial hatred, and Part 3A of this Act has been amended by a clause of the Criminal Justice and Immigration Act 2008 in order to cover hate speech based on sexual orientation.

In all such cases, the emphasis is on the threat implied by the words or actions, although the occasioning of alarm or distress is sufficient to be counted as threatening behaviour.

In the United States, the wording of the UK Acts would certainly fall foul of the First Amendment. American case law has established that hate speech is permissible unless it can be shown that it is likely to lead to immediate violence, which is clearly a more stringent requirement for prosecution than merely the threat of violence or the causing of alarm or distress.

An excellent case for illustrating the difference between British and American attitudes is that of Westboro Baptist Church.

Westboro Baptist Church

This is a relatively small religious organisation in Topeka, Kansas. It is believed to have around 40 members, most of whom belong to a single extended family. It was founded in 1955 as a daughter church of Topeka’s East Side Baptist Church, with Fred Phelps as the first pastor. However, Phelps soon broke away from East Side Baptist and made Westboro Church virtually his personal property.

Fred Phelps soon established a reputation for condemnation of anyone who did not fit his strict interpretation of how the Bible directed people to live. His particular hatred was for sexual impropriety, with homosexuality being the number one sin.

This eventually took the form of picketing the funerals of people known to be gay, with his supporters carrying placards with the words “God Hates Fags” and similar slogans. The other main focus of his hatred was Roman Catholicism, leading to the picketing of funerals of people (most notably soldiers) who were Catholic.

Fred Phelps died in March 2014 at the age of 84. Although he alienated several members of his family, others stayed loyal and have continued the Phelps tradition of being thoroughly objectionable to “sinners”.

To the credit of Christians throughout the United States, other churches will have nothing to do with Westboro Baptist Church and refuse to associate with it. There is considerable discomfort over their use of the name “Baptist”, in that other Baptist establishments do not wished to be tarred with the same brush that Westboro uses.

Free speech versus hate speech

It is perfectly clear that the picketing activities of Westboro Baptist Church would not be acceptable if they took place in the United Kingdom. This was shown to be the case in 2009 when church members were barred from entering the United Kingdom with the purpose of picketing a school in Hampshire that was staging a play (“The Laramie Project”) based on the story of Matthew Shepard, a gay student who was murdered because of his sexuality. Presumably the Westboro members took no exception to such a crime, but were prepared to fly the Atlantic to protest against people who did.

Other cases in the UK have shown how the hate speech laws work in practice to curtail free speech in certain circumstances. An example is the successful 2001 prosecution of Harry Hammond, a street evangelist who acted in a similar way to the Westboro picketers by displaying a sign in a public place that read: “Jesus Gives Peace, Jesus is Alive, Stop Immorality, Stop Homosexuality, Stop Lesbianism, Jesus is Lord”. This was judged to be insulting and offensive to any passer-by who was gay.

However, in the United States Harry Hammond (if he had been an American citizen) would have escaped prosecution, as do the Westboro picketers. This is because hate speech is seen very differently from hate crime, with the former being protected by the First Amendment.

However, the question that must be asked is: Is this situation tenable? Hate speech and hate crime are not entirely separate, because the former can be regarded as encouragement for the latter. Surely the time has come for a pious statement written in the 18^th century – a very different age from the present day – to be confined to the dustbin of history, on the grounds that laws that abridge the freedom of speech are sometimes not only desirable but essential.

© John Welford