Do anti-Semitic faxes from Kansas church have First Amendment protection?

Do anti-Semitic faxes from Kansas church have First Amendment protection?

Almost every day, for the last 10 months, Rabbi Beth Jacowitz Chottiner has begun her morning glancing at the repugnant faxes Wheeling’s Temple Shalom received during the previous night:
“Jews killed Jesus!”
“Jews are disproportionately fags.”
“God hates modern Israel.”
The faxes come from the Westboro Baptist Church in Topeka, Kansas.
The 100-member WBC, which is not affiliated with any mainstream Baptist organization, is recognized as a hate group by both the Anti-Defamation League and the Southern Poverty Law Center. The group is comprised mostly of the family members of its founder, Fred Phelps.
The homophobic, anti-Semitic WBC, incorporated in 1967 as a not-for profit organization, regularly stages protests around the country, often at the funerals for fallen soldiers.
“The group pickets institutions and individuals they think support homosexuality or otherwise subvert what they believe is God’s law,” according to a report published by the ADL.
The WBC is not only anti-Semitic and anti-gay, but also anti-black, anti-Catholic, anti-Lutheran, anti-military, and anti-Canadian. Members of the group believe that most Americans are “sinful,” and that “God’s hatred is one of His holy attributes.”
The group was in Pittsburgh last April to picket the funerals of the three Pittsburgh police officers who were gunned downed in Stanton Heights.
Since last spring, the WBC has engaged in a campaign of harassment of Jewish organizations across the country, picketing some, and swamping others with reams of virulent faxes.
After receiving scores of the WBC’s faxes, Chottiner contacted the ADL for guidance.
“The ADL said they were very aware of the group,” Chottiner said. “But the ADL said that they stay within the letter of the law. They have lawyers in their group, and they get permits to picket. And they are not known as a violent group.”
“They are doing this because they want to be provocative, and offensive and get a reaction,” said Nina Sundell, regional director of the ADL. “They are not a violent group. The best thing to do is ignore it.”
Temple Emanuel of South Hills has received the WBC faxes since last spring. As the faxes often announce the group’s upcoming demonstrations at Jewish sites all over the country, Rabbi Mark Mahler has not ruled out the possibility of a future demonstration at Temple Emanuel. If such a demonstration does occur, he plans to “allow them to do what they can in the context of the law, and ignore them.”
“It’s not their habit to be violent,” Mahler said. “I think the message ultimately is that it (the WBC) is there. We need to be aware of it. We need to be mindful of it. But we don’t need to be fearful of it.”
While the faxes do not pose any specific or direct threat, they are nonetheless offensive and annoying, and Chottiner wants them to stop. She has sought direction from both the West Virginia Deputy Attorney General for Civil Rights in Charleston, as well as the Southern Poverty Law Center. Both offices told her that the WBC is within its First Amendment rights in sending the faxes.
She also contacted the FBI, which told her that unless the WBC threatened her or physically attacked her, the group could not be prosecuted for a hate crime, and that the group had not violated any federal laws, or any laws of the state of West Virginia.
Likewise, the Kansas Attorney General in Topeka told Chottiner that despite having received over 500 complaints against the WBC, there was nothing it could do to stop the group from sending its hateful faxes.
Chottiner finally got in touch with her phone service provider, Verizon, and requested that it block all incoming faxes from the group. As the faxes were coming with no originating fax number, Chottiner had to enlist the assistance of the Wheeling police to put a trace on the line. When the police obtained an originating number from Topeka, Kansas, Chottiner got back in touch with the phone company.
“Verizon told me you can’t block an out-of-state call,” she said. “You can only block a local call.
“Now that I know their fax number, I can’t do anything about it. And I don’t see a way out of this,” she continued. “To come to work every morning to these hate-filled messages — this is not the way you want to start your day every day.
“They are not breaking any laws, so technically this is legal,” she added. “It makes you question the system if this is considered acceptable. And what’s more baffling is that in this day of technology, there’s no way to block a long distance call.”
At least one local Constitutional scholar vehemently disagrees that the WBC’s faxes are protected speech under the First Amendment.
“I would not think I’m within my First Amendment right to keep sending people unwanted faxes,” said Bruce Ledewitz, professor of law at Duquesne University School of Law. “This sounds like a text book example of harassment.”
“There is a right to be left alone,” Ledewitz said, citing the 2000 United States Supreme Court decision in Hill v. Colorado, affirming the right of the “unwilling listener” to avoid unwanted communication.
Once an unwilling listener tells the one who continues to communicate that she does not want the communication, “it is not protected by the First Amendment. Period,” Ledewitz said.
The issue of what the WBC can and cannot do extends beyond the First Amendment, according to Sundell, speaking on behalf of the ADL.
“This is an unknown area of law right now,” she said. “Institutions have been receiving these faxes country-wide. The ADL has lawyers looking into the issue to see what can be done under the law, what kind of action can be taken.”

(Toby Tabachnick can be reached at

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