Fred Phelps has succeeded in attracting the media and judicial attention he’s long craved. Yet the temptations to use law to craft a legal remedy for his targets or to criminalize his offensive spectacles are not just doomed to failure, they only give him what he wants.

Phelps is founder of the Westboro Baptist Church, an unaffiliated Kansas sect consisting mostly of his extended family. The church members have for years appeared near the funerals of military personnel and public figures, claiming that America is reaping the deserved fruits of its moral decay, particularly in its acceptance of homosexuality. (Their website is godhatesfags.com.) The church picketed after the deaths of Coretta Scott King, Matthew Shepherd, and Michael Jackson as well as at funerals of those killed in the attacks on September 11, after Hurricane Katrina, in the Minneapolis bridge collapse, and those who have died of AIDS. They have carried signs and chanted slogans including “America is doomed,” “Priests Rape Boys,” “Pope in Hell,” and “You’re Going to Hell.”

 In recent months, Phelps’s efforts have received more visibility. On Veterans Day his group protested at Arlington Cemetery as Congress considered repealing the “Don’t Ask Don’t Tell” policy regarding gays in the military. In December, his church protested at the funeral of Elizabeth Edwards, who had long supported legal recognition of same-sex marriage. And in January 2011, his group planned to travel to Tucson to protest at the funeral of Christina Taylor Green—the nine-year-old girl killed in the attempt to assassinate Rep. Gabrielle Giffords—with signs such as “God Sent the Shooter.”

Phelps—a disbarred lawyer—also had his day before the US Supreme Court. In October 2010, the Court heard an appeal brought by the father of Lance Cpl. Matthew Snyder, a US Marine killed in Iraq. In 2005, seven church members protested in Maryland near the Catholic church where Snyder’s funeral mass was held. The slogans on their signs included “Semper Fi Fags,” “Thank God for IUDs,” and “Thank God for Dead Soldiers.” Phelps’s group protested on public grounds, one thousand feet from the church, and in places they would likely be seen by the funeral procession and by television cameras. The congregants notified local police in advance and complied with all police directives. There was no evidence Matthew Snyder was gay. Phelps stated that the church protested at his funeral simply to gain media exposure.

Albert Snyder, Matthew’s father, was not aware of the protests at the funeral, but saw them later that evening on the television. Snyder then sued Phelps for intentional infliction of emotional distress and violation of privacy. A Maryland jury found Phelps’s protest “extreme and outrageous” and “highly offensive to a reasonable person.” It awarded Snyder nearly $11 million, including $8 million in punitive damages. “These are malicious people,” Snyder’s attorney Craig T. Trebilcock commented after the jury verdict. “These are stone-hearted people. They were celebrants of Matt Snyder’s death.”

But a federal appeals court overturned the verdict against Phelps. “Notwithstanding the distasteful and repugnant nature of the words being challenged in these proceedings,” it wrote, “we are constrained to conclude that the Defendants’ signs… are constitutionally protected.” Snyder then appealed to the US Supreme Court, which decided to hear the case. Westboro’s oral argument was delivered by Phelps’s daughter Margie.

Existing Supreme Court precedent would leasd the Court to strike down the jury’s original decision as unconstitutional on at least two grounds.  “‘Outrageousness’ in the area of political and social discourse,” wrote Chief Justice William H. Rehnquist in Hustler Magazine v. Jerry Falwell (1988), “has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” In addition, the “highly offensive to a reasonable person” standard is a clear violation of the Court’s decision in the flag desecration case Texas v. Johnson (1989). “If there is a bedrock principle underlying the First Amendment,” Justice William J. Brennan wrote in striking down the law against flag desecration, “it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” The jury verdict for Snyder almost certainly will not stand.

Sensing this avenue for private relief likely closed, state and federal politicians have sought other ways to limit Westboro’s protests. After the Snyder funeral, Maryland passed a law prohibiting protests within three hundred feet of funeral services from an hour before until an hour after scheduled services. Over the past decade, many states and the federal government have passed laws criminalizing picketing near a funeral. Congress in 2006 passed the “Respect for Fallen Heroes Act,” creating a similar zone and time limit around federal cemeteries or churches holding funerals for military personnel. This January, in emergency session before Green’s funeral in Tucson, Arizona’s legislature unanimously passed legislation making protests in such times and places a Class 1 misdemeanor.

Recent decisions appear to provide more support for these new laws. The US Supreme Court has upheld bans on picketing in residential areas, finding an expanded expectation of privacy in the home. In Hill v. Colorado (2000), the Court went further when it upheld an ordinance criminalizing efforts to display signs or to “engage in oral protest, education or counseling” by approaching within eight feet of anyone in the zone one hundred feet around the entrance of a health care facility. Colorado’s law was passed in response to pickets at facilities performing abortions, and Justice John Paul Stevens’s majority opinion found a state interest in protecting individuals in “particularly vulnerable physical and emotional conditions” from “potential trauma to patients associated with confrontational protests.” In 2007, a federal appeals court—following the Hill precedent—upheld an Ohio funeral protest law similar to that passed recently by Arizona. The Court found that the law created a neutral time, place, and manner restriction on expression, a restriction intended to preserve dignity at a solemn occasion. Other federal appeals courts, however, have struck parts of similar funeral protest laws as violations of free speech.

As natural as it is to sympathize with the grief of the Snyder family and others facing personal tragedy, we should re-examine the efficacy and the motivation behind these laws. In practice, they fail to prevent the Westboro protests. The group generally gathers on public land more than three hundred feet away from services, but in areas likely to catch the attention of television cameras. Members often contact local law enforcement officials in advance to abide by applicable ordinances as well as to gain advance publicity.

These laws also raise larger concerns about free speech for unpopular political and social expression. Aside from their practical effect, these funeral protest laws triggered by Phelps—as well as the law upheld by the Court in Hill—raise constitutional problems when they reach toward political speech on public property. The very terms “protest” and “picketing” are viewpoint-based. Under these laws, speech in favor of the deceased, of the military, or of government policy would not be subject to criminal prosecution, only speech protesting them.

Westboro’s political beliefs and its choice of words and venues for expressing them are unpopular. But as Justice Anthony Kennedy said in his dissent in Hill, “laws punishing speech which protests the lawfulness or morality of the government’s own policy are the essence of the tyrannical power the First Amendment guards against.”  Government can still pass laws prohibiting harassment, trespassing, stalking, intimidation, battery and offensive touching, or blocking a road or entrance. It can also limit the noise level or prevent any disruption of a ceremony in a private house of worship. But there is no “right to avoid unpopular speech in a public forum.” 

The more effective responses to Phelps have come not through the courts, but through the actions of individual citizens. Upon hearing of Phelps’s plans to attend the Edwards funeral, dozens of counter-protesters assembled and sang Christmas carols. They far outnumbered the seven members of Phelps’s church who were on hand. Private groups such as the Patriot Honor Guard, gay rights organizations, and the Hells Angels motorcycle gang have attended these funerals to serve as physical buffers so that signs are blocked from the view of grieving families. In Arizona, local media bought off Westboro: in exchange for not protesting at Christina Green’s funeral, members of Phelps’s family appeared on a Tucson radio station and participated in a debate on a nationally syndicated program. Media coverage of late has de-emphasized the shock value of the protest signs; it has focused instead on the larger number of counter-protesters and on those who came to respect and commemorate the life of the deceased.

Passing additional laws aimed at the antics of Westboro Baptist Church and Fred Phelps serves only to give them more visibility. Their right to protest and to offend is the very same freedom others have to mock, to ignore, to mourn, and to celebrate.

Frank J. Colucci is Associate Professor of Political Science at Purdue University Calumet in Hammond, Indiana. He is the author of Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty (University Press of Kansas, 2009).