The first time I saw those signs, with their vivid neon colors and crude images of stick figures, was 16 years ago. "Fags Die, God Laughs." "No Tears for Queers." "God Hates Fags." Like most people seeing a Westboro Baptist Church picket for the first time, I was shocked, then outraged. It happened at the funeral of a friend who had died of AIDS. Seeing those signs left me in tears.
I came out in the early 90's in Lawrence, Kansas, just 25 miles from the home of Fred Phelps and his followers. As I became increasingly involved in local lesbian, gay, bisexual, and transgender activism, I started seeing the Westboro picketers on a regular basis. They showed up anytime we put on an event and sometimes at completely incongruous ones — the annual production of The Nutcracker in Topeka, for example. In 1994 they traveled to my Arkansas hometown to protest at the funeral of President Clinton's mother. My mom called me, asking, "Who on earth are these crazy people from Topeka?"
Phelps was mainly known locally in those days but his views eventually started getting more national attention. He grabbed broader notice in 1998 after Matthew Shepard was brutally killed in an anti-gay hate crime in Wyoming. Shepard's murder garnered national attention and Westboro's picketers showed up at the funeral, shocking and upsetting thousands of mourners. So I wasn't at all surprised a few years ago when Phelps and his followers began picketing at the funerals of American soldiers killed in Iraq, nor was I surprised at the hurt and fury his presence at these heartbreaking moments caused to those who had just lost loved ones. I understood firsthand how they felt.
Many years after first seeing those signs, I started working at the American Civil Liberties Union. One of the things that becomes clear as you look at the ACLU's work over the years is that government censorship has long been used to silence unpopular minorities, including LGBT people. The ACLU's first gay rights case was in 1936, when we defended the play The Children's Hour after it was banned in Boston because of its "lesbian content." From our defense of a San Francisco publisher and bookstore owner who was charged with printing and selling indecent books for releasing Alan Ginsberg's Howl, to our case just last year standing up for the right of students at a public high school in Florida to wear rainbow t-shirts or the one this year defending Constance McMillen's right to take her girlfriend to her senior prom, we have successfully fought back when government has sought to silence LGBT people. We would have never been able to make the tremendous progress we have made in the struggle for LGBT equality without being able to talk openly about what it means to be who we are. Who can doubt that had it been up the government in the 1950's — or to many state governments today — we wouldn't be able to come out at all.
It's because you simply can't blindly trust the government with the power to censor that the First Amendment grants all Americans, regardless of their views, the right to express themselves. The ACLU has defended the free speech rights of many types of groups, from the to the KKK. We don't do that because we agree with either. We do it because we believe in the principle, and because we realize that once you chip away at one person's rights, everyone else's are at risk. It's because of this that the ACLU submitted a friend-of-the-court brief in about an appeal being brought by Westboro Baptist Church. The appeal comes after a federal jury awarded $10.9 million (which the judge later reduced to $5 million) to the father of Matthew Snyder, a Marine whose funeral was picketed by Westboro Baptist Church. In the brief, we pointed out that the First Amendment's protection of freedom of speech guarantees that no one can be found liable for merely expressing an opinion about a matter of public concern, regardless of how hurtful those opinions might be.
I can imagine the pain and the anger that Matthew Snyder's family felt upon seeing those signs. Those feelings are real and valid, and I feel nothing but sympathy for that family's suffering. But free speech doesn't belong only to those we agree with, and the First Amendment doesn't only protect speech that is tasteful and inoffensive. In fact, it is in the hard cases that our commitment to the First Amendment is most tested and most important. As one federal judge has put it, tolerating hateful speech is "the best protection we have against any Nazi-type regime in this country."
In this case, we believe that the jury verdict violated First Amendment principles that protect the free speech rights of everyone. We want to protect those principles, which have always been essential to the advancement of civil rights, including the civil rights of LGBT people. Allowing Fred Phelps to speak his mind may be difficult, but chipping away at one of the fundamental principles on which our country was founded is far, far worse for all of us in the long run.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.