My best friend’s 13-year-old son recently asked me to friend him on the social media app BeReal.

She had decided to let him download BeReal partially because it lets users post just once per day and has very limited chat features, and only under the condition that they had to be friends. But he was free to choose what and when to post, what to comment, and whom to befriend (including, to my amusement, me). My friend was treating it like a learner’s-permit version of Instagram or Facebook. Her son could drive his social media car, but only with an adult present in the front seat.

Like many parents and caregivers, her aim was to develop a way for her son to safely learn about and prepare for our increasingly virtually connected world, while still respecting his right to speech and self-expression in an age-appropriate manner. This vision of adolescence as a driver’s permit to adult-sized rights regularly emerges in my work as a historian of law and childhood. Throughout histories of childhood and youth, my profession is examining the boundaries of young people’s rights in various contexts, from medical consent to due process rights that have contemporary political implications.

But in some states, the law may soon criminalize these very actions.

In the wake of remote learning’s increased screen time and the rise of anti-LGBTQ legislation, predominately conservative lawmakers have been raising a new round of moral panic over young people’s mental health and their exposure to adult content. Their push for a radical new vision of internet access is rooted in political fears about youth and social media, and threatens decades of free speech protections.

There is a long history of moral panics around youth and the popular technology of their eras. The Victorians worried that bicycles enabled teens and unmarried adults to avoid chaperones, and that they contributed to a growing popularity of bloomers over dresses or skirts. For Cold War parents, comic books symbolized the rise of the violent and crazed juvenile delinquent and sparked a U.S. Senate subcommittee investigation. These panics were less a reaction to reality, but rather, they represented cyclical anxieties of generational segregation and control over young people.

Foundational child protection law is already in place in the United States. In 1998, the Federal Children Online Privacy Protection Act (COPPA) prohibited the collection of online data from online users under the age of 12. In 2013, it was amended to expand its reach. But now, state lawmakers want legislation that would criminalize internet access for millions of Americans.

For adults, this legislation has focused on limiting access to pornography. But more changes in process are targeting young people’s social media usage. In Texas, state representative Jared Patterson filed H.B. No. 896 last December, which would have banned any person under the age of 18 from using social media apps, and allowed parents to request the removal of their children’s social media accounts. Though the bill failed to pass, undeterred conservatives in Utah pushed forward a similar bill, quickly passed and signed into law this March, which prohibits minors from having any social media accounts. It also has created a nearly unenforceable “internet curfew.”

While the Utah and Texas cases represent the most extreme measures in the new efforts to control youth internet access, a bipartisan group of federal lawmakers has also introduced the more seemingly palatable Protecting Kids on Social Media Act, a revamped version of the previously rejected Kids Online Safety Act (KOSA), which aims to censor material considered potentially “harmful.” Yet, as law and technology expert Mike Masnick has written, with no clear definition of “harmful content,” state attorney generals can define the term as it suits them, and use it to target websites they want blocked for ideological reasons. Last year, over 90 LGBTQ+ and human rights groups signed a letter in protest of KOSA.

It’s true that there is content on the internet that poses dangers to minors. The media has featured heartbreaking stories of cyberbullying and online predators. But it’s because of those dangers that nuance in lawmaking is so critical. Blanket bans replicate the very dangers they are designed to prevent: Strict parental controls create a ring of invisibility around domestic abuse, while increasing data collection from all Americans, child or adult.

Likewise, while studies have pointed to social media’s impact on mental health, banning it won’t solve the youth mental health crisis, as the legislation suggests. Social media is just one part of American childhood today, alongside rampant gun violence, anti-LGBTQ+ fascism, and endemic economic inequality.

And then there’s the First Amendment. By seeking to purge children from the internet, conservative lawmakers are denying young people the right to expression, speech, and creativity. Stripping them of their right to speak out on platforms, often about issues that impact them directly, runs counter to decades of precedent for young people.

Young people had their earliest First Amendment victory in Tinker v. Des Moines (1969), when siblings Mary Beth and John Tinker, who had been expelled for their silent protest of the Vietnam War, argued that their rights to free speech did not end at the entrance of their public school. The Supreme Court agreed. Subsequent decisions, Hazelwood v. Kuhlmeier (1988) and Morse v. Frederick (2007), upheld Tinker’s basic ruling, while carving out caveats in favor of school administrators. But until 2021, the Supreme Court had yet to deal with a case regarding youth free speech and the internet.

Then came the memorably named “Cursing Cheerleader” case, Mahanoy Area School District v. B.L. After a student recorded and uploaded a Snapchat story featuring a caption cursing and criticizing her high school, school administrators suspended her from the junior varsity cheerleading team. The case asked the Court if Tinker applied to a student’s social media post. With an 8-1 decision, the Court found that it did. (Justice Clarence Thomas, the sole dissent, argued for a chipping away of Tinker in favor of schools and parents.)

When Utah’s latest social media ban is inevitably challenged in court, the state will need to argue against these Supreme Court rulings that uphold youth First Amendment protections. But it takes time for a case to make its way through the courts. Until then, this law and others like it will deny young people their right to be online, while creating a much more dangerous digital landscape for the very children they allege to protect.

Though the internet isn’t perfect, it can be a space of creativity and intellectual engagement for youth. Ranging from budding craftspeople learning to operate a business, to youth activists working on climate change and LGBTQ rights, young people wield their digital literacy for positive efforts, often using social media in the process. Banning their social media use will merely push them to further hide their online activity, and to speak less freely about the issues they face in digital spaces. It criminalizes their attempts to learn to live in a virtual world and ignores the necessity of the internet for modern life.

It’s better to arm the young people in our lives with digital literacy and open dialogue. Take a page from my friend’s parenting book, give them space to learn, post silly pictures, and teach you a thing or two. And, while we’re at it, encourage them to get outside and ride a bike—no matter the legwear they choose.

The post Let the Kids “BeReal” on Social Media appeared first on Zócalo Public Square.

The post Legal Scholar Eugene Volokh appeared first on Zócalo Public Square.

Los Angeles Times editorial writer Carla Hall, who moderated the discussion, kicked it off with the words of University of Michigan legal scholar Catharine A. MacKinnon, who argues in The Free Speech Century that the First Amendment has increasingly moved from “a defense of the powerless” to “a weapon of the powerful.”

“What do you make of that?” Hall asked the panelists.

“The First Amendment protects the freedom of speech,” said UCLA School of Law professor Eugene Volokh. “It doesn’t protect the freedom of speech for the powerless. It doesn’t protect the freedom of speech for this group or that group. It protects the freedom of speech. We shouldn’t be surprised that anybody who speaks would make claims under the freedom of speech, and that the Supreme Court would protect those claims in many situations and reject them in some situations.”

But what, asked Hall, about Citizens United v. FEC, the court’s 2010 ruling that limiting political spending by corporations and individuals was a First Amendment violation?

The First Amendment cannot protect everybody except corporations and unions, Volokh said. Nodding to Hall’s employer, the Los Angeles Times, he added, “If you’re trying to suppress the speech of corporations, you’ll be suppressing the speech of newspapers and religious groups and others as well.”

Attorney Jean-Paul Jassy, who has litigated First Amendment cases in the United States Supreme Court and the California Supreme Court, agreed that the history around free speech can be as unsavory as it is triumphant. But as someone who regularly represents media companies, reporters, and nonprofits, he takes a position that freedom of speech is for everybody, even the company that owns the National Inquirer. In a case claiming the Inquirer used a “catch-and-kill” strategy to bury a story, Jassy defended the company. Citing Miami Herald Publishing Company v. Tornillo, Jassy made the argument companies can decide what they publish or do not publish. “This happens all the time, and if we start getting into that system where we examine what a newspaper or TV station publishes or puts on the air, it’s very dangerous,” said Jassy.

Turning to USC legal scholar Jody David Armour, Hall asked for his thoughts on the role of protest in free speech, citing a recent Los Angeles mayoral debate at Loyola Marymount University that activists disrupted.

They have the right to protest, said Armour, and just like in a private venue, security has the right to remove them. “Civil disobedience comes with a price tag,” he said. It’s a risk he’s taken himself, and one that can lead to change, he noted.

Battinto L. Batts Jr., dean of the ASU Cronkite School, agreed: “This thing we call democracy that we pine for is not a pretty process. It’s not a fine dining event; it’s a food fight sometimes.”

“Who are we to judge about whether that was a successful event or not because it wasn’t orderly in the fashion that we thought it would be going in?” Batts continued. “The protestors would say it was a successful event on their behalf because their perspectives were voiced. We can’t say, well, this group gets to speak, and when they get to speak, and how they get to speak, and they get to do it uncontested. That’s not freedom of speech. That’s control.”

To shut down protest speech would mean shutting down movements, said Armour. “I know there wouldn’t be a Black Lives [Matter] movement without robust freedom of speech.” After the killings of Mike Brown and Trayvon Martin, he saw Black Twitter and other Black social media take off. What if they had been shut down? “You had the movement of our generation. The generational upheaval a couple years ago was made possible by robust protection of First Amendment rights,” he said.

Before the night closed, the panelists also spoke about hot-button issues in the news today, from Sarah Palin’s libel lawsuit against The New York Times, which they don’t think the Supreme Court will hear, to Florida’s “Don’t Say Gay” bill that aims to prohibit “classroom discussion about sexual orientation or gender identity” in the state’s primary schools.

“If we’re talking about public schools, those are parts of the government,” said Volokh. Because they are agencies of the state, “it’s not a First Amendment violation because it’s all about state telling state employees what they can say as part of their state jobs.” However, were the state to tell that to private schools, that would be a clear First Amendment violation.

And, if you were wondering about what the famous free speech analogy about “yelling fire in a crowded theater” is all about, the panelists answered that as well before they wrapped. “Somebody told me that First Amendment lawyers and professor who teach it hate that phrase,” said Hall, who brought the question up.

Yes, said Jassy, in part because omitting the word “falsely” changes the meaning of the entire thing. But, there’s another subtlety to the saying, which originated in 1919 as well, he said: “It’s kind of an outdated catch phrase.” The underlying case that justice Oliver Wendell Holmes was writing it for, U.S. v. Schenck, was overturned in favor of a more modern test for immediate harm in the 1969 case Brandenberg v. Ohio. There the Supreme Court determined inflammatory speech is protected under the First Amendment unless that speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

The post In America Talk Isn’t Cheap, It’s Free appeared first on Zócalo Public Square.

With the midterm elections fast approaching, and the American public seething with partisan anger, a Zócalo/Japanese American National Museum event on Friday night raised the question, “Can U.S. Democracy Survive Russian Information Warfare?”

Moderator Warren Olney, host of KCRW’s “To the Point,” put that query to a panel of three experts—Julia Davis, a Ukraine-born film producer and founder of the Russian Media Monitor, which analyzes Russian state media in the broader context of the Kremlin’s propaganda; Asha Rangappa, a former FBI agent and now Senior Lecturer at Yale University’s Jackson Institute for Global Affairs; and Caroline Orr, a Virginia Commonwealth University behavioral scientist who uses open-source information and data analytics to examine how Russia has weaponized social media against the United States.

The short answer, given by all three: “Yes,” America can prevail.

But as the panelists told an overflow crowd at the National Center for the Preservation of Democracy in downtown Los Angeles, the United States is engaged in a new form of combat with Russia that won’t end anytime soon—no matter which political party controls Congress or the White House. Russia’s goal isn’t simply to boost a particular politician, or hand a megaphone to an extremist fringe group, but to undermine America’s core democratic values, institutions, and way of life, the panelists concurred.

“The more chaos there is here, the more it benefits Putin’s agenda,” Davis summarized. For example, she continued, even though evidence is mounting that Russia intervened in 2016 to help elect Donald Trump, the Russians wouldn’t be worried if Trump were to be impeached. Instead, Davis said, they’d be trying to exploit the situation to provoke massive civil discord, even armed unrest.

Orr said that Russian intelligence operatives have a variety of strategies and objectives for making Americans lunge at each other’s throats, even over something as relatively innocuous as whether NFL players should stand during the national anthem. In that situation, Orr said, the Russians are tapping into a preexisting societal problem of racism, and simply amplifying it digitally. “Sometimes [the Russian strategy] is to distract us, sometimes to make us fight, sometimes to make us hopeless,” Orr said.

Olney asked: Why hasn’t the United States been able to fight back more effectively against these threats. Rangappa said Americans have sufficient intelligence capacity for this contest, but also “have one big law that stands in the way of the government doing anything, and that is the First Amendment.” Rangappa, an adamant proponent of free speech, acknowledged that America’s constitutional protections are sometimes at odds with the ability to clamp down on foreign propaganda machines. “The FBI and the First Amendment are two great tastes that do not go great together,” she said.

And sophisticated digital technology has abetted perpetrators’ ability not only to carry out cyberattacks but also to hide behind a wall of anonymity. A key difference between our present age and the Cold War era, Rangappa said, is that today’s technology platforms can put out information much faster, with a much wider reach, and in ways that the United States can counter only in limited ways. One way, she said, is to force Russia propaganda outlets masquerading as journalistic enterprises to register as foreign agents, as RT (formerly Russia Today) and Sputnik recently were required to do.

Moving to specifics, Olney asked the panelists who exactly the Russians are targeting. Davis replied that, since around 2009, the Russians have been identifying people who are feeling disenfranchised, who don’t believe their votes or their voices count, and who are cynical about the state of the U.S. Russia wants to discourage such people from voting and to make them believe that democracy itself is a sham, as it is in Russia.

Asked by Olney why people are vulnerable to this type of misleading information, Orr explained that, for one thing, these messages are narrowly targeted to various segments of the population, for maximum impact.

“We’re all susceptible to believing things that sound good, things that play into beliefs that we already have,” Orr said. “They help us make sense out of things that don’t necessarily make sense,” supply satisfying answers to troubling questions, and soothe us by their sheer simplicity.

But how, Olney persisted, is it possible to build a small platform on Facebook or Twitter into a gigantic, continent-spanning echo chamber of like-minded people?

Orr replied that the Russians launch many trial runs to see what kinds of storylines will get shared repeatedly online. One Russian campaign targeting U.S. veterans has been notably successful because it taps into issues that veterans already care about, she said.

Russian trolls and bots also tend to push out controversial material during the wee morning hours in the United States. Few Americans are using social media between, say, 2 and 4 a.m. But when the East Coast starts waking up a couple hours later, it will be greeted by an inflammatory new hashtag generated in Moscow. More Americans will start wading into the conversation, at which point the Russian perpetrators can quietly melt back, undetected, into the angry online mob they’ve aroused. “It looks completely organic, it looks human-driven,” Orr said of these bot-orchestrated online conflicts.

And it’s not easy to persuade people who’ve fallen for such propaganda that they’ve been duped. “Simply telling somebody… that what they think is incorrect is not an effective way of changing people’s minds,” Orr said. “Part of the reason is, we’re susceptible to believing misinformation because we want to. We don’t want to believe that we’ve been fooled.” What’s more, she said, a lot of Russian propaganda isn’t aimed at convincing you of a particular viewpoint; its more insidious purpose is to convince you that no truth exists. The goal is to make people feel mentally overwhelmed and worn out, so they’ll stop trying to figure out which version of, say, the Syrian civil war to believe, and will give in to cynicism and despair, Orr suggested.

As the conversational mood tone grew darker than a chapter of John le Carré, Olney was moved to observe that, “This is a very disturbing situation!” eliciting uneasy laughter from the audience. Indeed, the panelists emphasized, the American public needs to awaken to the size and scope of the threat—fast. The Russians are weaponizing our most fundamental freedoms, and launching them at our own society and institutions.

“This is warfare, even in peacetime,” Rangappa said. “What I think is really difficult for Americans to understand is to get your mind around a threat that is not visible.”

There are ways to fight back. Responding to a question from the audience, the panelists mentioned Twitter accounts and websites such as Hamilton 68 that monitor Russian propaganda. Educational programs are available to teach young people how to distinguish fact-based journalism from conspiratorial fantasies, the panelists said. Congress also must play a role in hitting back at Putin and his oligarchical allies with tough economic sanctions, the women agreed. “We are in serious peril and we shouldn’t be enriching Putin and his cronies in the process,” Davis said.

The panelists said that, while the U.S. government can take measures and Silicon Valley needs to be held more accountable for granting wide bandwidth to hostile foreign powers, in the end it’s up to us as individual citizens to pay attention to our information sources, protect ourselves, and defend democracy.

“We are the targets of Russian propaganda,” Davis said, “but we are also the solution.”

The post Only You Can Defeat Vladimir Putin appeared first on Zócalo Public Square.

But absent from discussion is a more fundamental question: Should we be using the notion of “free speech” to understand online speech at all?

As a general matter, it’s important not to confuse the First Amendment with the broader notion of free speech. Free speech policy is about the First Amendment kind of like how Cheez Whiz is about dairy products: They are related, but fundamentally different. The First Amendment protects “free speech” by saying that the government cannot (with certain important exceptions) prevent you from speaking. But private individuals or corporations, like Twitter, are not covered by the First Amendment and can curate or even censor speech without violating the law. In fact, some have argued that a platform’s right to keep up and take down what’s posted there is its own free speech right. Others have pointed out that not policing for abuse has a chilling effect on speech.

Twitter’s rigid adherence to being the so-called “free speech wing of the free speech party” seems reminiscent from a scene from the cult classic movie The Big Lebowski. Vietnam veteran Walter Sobchak (John Goodman) is sitting in a diner having a loud and animated conversation with his friend Jeff “The Dude” Lebowski (Jeff Bridges). A waitress gently asks Walter to lower his voice, because “this is a family restaurant,” a request that sends Walter into an apoplectic fit, screaming to the waitress that “the Supreme Court has roundly rejected prior restraint.”

“Walter, this isn’t a First Amendment issue,” The Dude says before walking out in frustration.

So if the First Amendment doesn’t constrain how speech is regulated by online platforms, what does? And what should?

One of the main forces governing speech online is the same thing that governs Walter’s speech in his local diner: societal norms. Norms are customary standards for behavior that are shared in a community. They can be self-enforced by a person’s desire to fit in with the group and conform, and they can also be externally enforced by the group when an individual violates the norm. Speaking at a lower volume in a public place is one kind of norm and shaming a person who yells loudly is a way that norm is enforced.

But while geographically bound communities have had thousands of years to evolve norms in real life, developing expectations for behavior on a global Internet is still in its nascent stages. This is especially true for online speech, says Nicole Wong, the former vice president and deputy general counsel at Google who helped establish YouTube’s public policies on speech. Over the last 20 years, says Wong, online speech has been undergoing a “norm setting process” that is different and much faster than previous responses to technological advances in publication platforms. “We’re still in the middle of how to think about the norms of behavior when what is considered ‘appropriate’ speech is constantly iterating,” says Wong. “If you layer the changes in technology over a broadening array of cultural, racial, national, global perspectives, it is hard to pin down principled, universal social norms, let alone create policy to reflect them.”

The task of creating policy for governing online speech falls not to governments, but to platforms. Individual platforms that host user’s content—like Twitter, Facebook, Tumblr, or YouTube—are each responsible for creating policies that reflect the online speech norms of the community the platform wants to create. Those policies most often take the form of a platform’s Terms of Service or community guidelines. For example, at YouTube, such policies prohibit the posting of pornography or sexually explicit content; at Facebook, community standards ban the posting of content that promotes self-injury or suicide.

Having those policies in place is important, but equally important is having a system in place that is nimble enough to allow for changes in that policy as norms evolve. And while platforms like Twitter have historically struggled in this capacity, others, like Facebook, have excelled. After the site’s policy on female nudity resulted in takedowns of women posting photos of their mastectomy scars, Facebook created an exception to its policy. When similar outcry erupted over the removal of breast-feeding photos, the policy changed again.

“What we do is informed by external conversations that we have,” explained Monika Bickert, Facebook’s head of global policy, in an April interview with the Verge. “Every day, we are in conversations with groups around the world. … So, while we are responsible for overseeing these policies and managing them, it is really a global conversation.” Facebook’s flexible responsiveness to the expectations of its community might be one reason its user base keeps growing while Twitter’s stagnates.

The underlying principle that Facebook has managed to grasp and put into motion is that digital speech is about much, much more than Twitter’s black and white notion of “free speech.” Online speech is not about simple speech absolutes. It’s about developing a global system of governance that can empower the most, while harming the least.

Talking about online speech in terms of “free speech” isn’t incorrect, it just misses so much of the picture. Or, more accurately, as The Dude might counsel, “You’re not wrong, Walter, you’re just an asshole.” The sooner we start thinking of online speech not only in terms of “free speech” but in terms of responsible and responsive platform governance, the sooner we create the internet we want.

The post This Isn’t a First Amendment Issue, Twitter appeared first on Zócalo Public Square.

Fred Phelps died on March 19. Few tears were shed. Obituaries labeled him a preacher of hate. Reverend Phelps led the Westboro Baptist Church, a group known for its virulent opposition to homosexuality and for picketing a variety of events, including the funerals of military personnel, whom they believe God kills to punish a nation that tolerates homosexuality. From a library of placards, several with hurtful language are chosen for each picket: “God Hates Fags” (also the name of Westboro’s Web site), “God Hates You,” and “Thank God For Dead Soldiers,” for example. The picketers march, sing popular melodies with their own lyrics, and take on those who oppose them.

I first learned of Fred and Westboro when the U.S. Supreme Court agreed to hear the case of Snyder v. Phelps. Al Snyder is the father of a U.S. Marine killed in Iraq. Fred was one of seven Westboro members who protested the Snyder funeral. As with all of their pickets, Westboro had carefully planned this one, obtaining the necessary permits and obeying local laws. They were 1,000 feet from the church and ended the picket before the service began. Though he never saw them, Al sued for invasion of privacy and intentional infliction of emotional distress. He won at trial but lost an appeal. The Supreme Court would settle this First Amendment issue.

As a professor, researcher, and writer in the First Amendment field, I wanted to know the story behind the case. It was not only a major test of this nation’s tolerance for free speech; it would also be an emotional one. It was good vs. evil, integrity and honor vs. disgrace and vile, the venerated military vs. those who dare to oppose it. I wanted to arrange for a trip to the Phelps family home in Topeka, Kansas. The goal was to observe and interview.

I recall making my first contact with Westboro—a telephone call—in 2010 and doing so with some trepidation. Who are these people? Will they tell me to drop dead? Do they shun any kind of contact with the outside world? No. Shirley Phelps-Roper, one of Fred’s 13 children and a spokesperson for the church, welcomed my call and helped by scheduling interviews across several days. (The interviews—both during the trip and afterward by telephone—ultimately totaled dozens of hours.) In effect, Fred’s family is his church. Almost all of the church’s 70 or so members are his descendants or their spouses.

Shirley was extremely kind throughout the process and beyond. Of course, one reason behind the hospitality was Westboro’s desire for publicity, which its members readily acknowledge. Their mission is to convey the word of God (as they define it). The more eyes, ears, cameras, and microphones the better. I later learned that Westboro members viewed me as an angel sent by God, a facilitator of spreading the word.

My observations began on a Sunday, attending the weekly noon church service. Shirley welcomed me into her home, one of several in a neighborhood where many Westboro members reside, forming a sort of compound. We walked across the backyard—a fenceless area that creates open territory shared with other Phelps families—and into the church. Fred presided, speaking in an accent reflective of his Mississippi roots. The service did not seem out of the ordinary, though I must confess I couldn’t hear all of the words from the 80-year-old preacher from where I sat in the back. Fred read from a prepared script, employing Biblical passages, to illustrate the theme of comfort. There was no fire and brimstone that day and no mention of any of the groups that attract Westboro’s wrath outside the church. But there were visual images. Two of the protest placards stood on easels at the front of the church: “God Hates Fags” and “God Hates Fag Enablers.” Several attendees wore T-shirts with either anti-gay or anti-Jewish messages.

After the service, I was introduced to Fred. Though friendly, he cut an imposing figure at about 6-foot-3. During some small talk, he told me that Walter Cronkite stood for gay rights. The comment came somewhat out of left field, except for the fact that I’m on the faculty at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University. In a courteous tone, Fred was apparently reminding me that, in his view, I was part of a pro-gay rights workplace—one of those “fag enablers.” A news article about Cronkite’s gay rights views also appeared pinned to a bulletin board behind Fred when I interviewed him in his office upstairs from the church a few days later. Something told me that had appeared just for the occasion.

Even though the years were catching up to him, Fred Phelps was very bright. We tend to conclude that people who regularly commit vile, insensitive, and offensive acts lack common sense and basic intelligence. On the contrary, he and his family are highly educated and very intelligent. Though he no longer practiced, Fred had been a lawyer. He was inspired to become an attorney by the landmark Brown v. Board of Education school desegregation case that originated not far from his home. After schools across the country and especially in Kansas dragged their feet in integrating, Fred represented many whose rights were being denied. He was honored by many organizations, including the NAACP.

So how did he end up on a path that has created so much anguish for the people he and other Westboro members picket? First, there is what I describe as a warped view of Christianity, with religious passion and zealotry, run amok. Westboro was first established in 1955 as a “mainstream” Christian church, but its approach began a downward spiral when Fred reportedly witnessed his then-5-year-old grandson being lured by what he says was a homosexual at a Topeka park. After complaints produced no action, the Phelpses put up signs warning of homosexual activity. Protests followed, locally at first, then nationally.

Second, Fred kept his family/church together by ruling with an iron fist. He became estranged from some of his children, including his son Nate, who has said that physical and psychological abuse were not uncommon. When I asked Fred about this, there was no denial. In a house of 13 children, he said, “you have to have some rules, you have to enforce the rules and sometimes, in an extreme case, you have to spank a child. The Bible says to do that, and the Bible says if you don’t spank him when he needs it, you don’t love him, you hate him. The Bible says that.” The “spankings,” Nate told me, involved beatings with a garden tool. The iron fist rule also meant a “my way or the highway” approach that results in lifetime banishment from the church and family for any non-believers.

As the court date for Snyder v. Phelps approached, I wondered how the Westboro legal arguments would play out. The U.S. Supreme Court is an intense experience that tests even the most veteran of lawyers. Fred’s daughter Marge was going to represent her father and the church at the Supreme Court, and many of her siblings have also chosen this profession. I couldn’t help but wonder if so many of his children became lawyers to deal with anticipated lawsuits. No, I was told, it was simply to help him with his civil rights caseload years ago.

The day before her Supreme Court appearance, Marge and several of her family members had some “business commitments” – picketing at three Washington-area sites. In front of the White House, they were two-dozen strong. Fred did not make this trip, but Marge was there in full picketing regalia – a ball cap, sweats, an upside-down U.S. flag and placards in hand. It was less than 20 hours from her Supreme Court appearance. During a break from the picketing, we talked about her presentation the next day. She was quietly confident.

In court the next day, now in a business suit, Marge argued that Al Snyder, the father of the fallen Marine, should not be awarded damages for the infliction of emotional distress, largely because Westboro’s speech was on matters of public concern—homosexuality, the conduct of the military, gays in the military. Marge was virtually flawless, in contrast to her adversary, who stumbled and bumbled his way through his presentation and fielding questions.

Marge’s only error was the prediction she made afterward: “9-to-0!” When the ruling was issued in March 2011, the Court ruled 8-to-1 in Fred’s favor. The Court basically accepted Marge’s argument. In his opinion for the Court, Chief Justice John Roberts emphasized that the United States does not punish speech that causes pain, though it might be distasteful: “As a Nation, we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Though many observers may have difficulty distinguishing between Phelps’ actions and his right to freedom of speech, even hurtful speech can make a positive contribution to the kind of debate that is essential in a self-governing democracy. As pornographer Larry Flynt—also a winner at the U.S. Supreme Court in a case involving offensive speech—once said: If the First Amendment can protect someone like him, it protects all of us. Phelps was an accidental First Amendment champion who ended up strengthening the safeguards of liberty.

The post Was Fred Phelps Democracy’s Necessary Evil? appeared first on Zócalo Public Square.