Thursday, March 3, 2011

Fred Phelps, Hate Speech, and the First Amendment

Right-wing loony Fred Phelps and his followers have a revolting habit of picketing the funerals of dead servicemen and claiming that it's all the fault of the gays. Whether or not he can be stopped from this resulted in a case that went to the Supreme Court:
The case decided Wednesday arose from a protest at the funeral of a Marine who had died in Iraq, Lance Cpl. Matthew A. Snyder. As they had at hundreds of other funerals, members of the Westboro Baptist Church of Topeka, Kan., appeared with signs bearing messages like “America is Doomed” and “God Hates Fags.”

The church contends that God is punishing the United States for its tolerance of homosexuality.

The father of the fallen Marine, Albert Snyder, sued the protesters for, among other things, the intentional infliction of emotional distress, and won a substantial jury award that was later overturned by an appeals court.
The Supreme Court found that for all his hatred and vileness, Phelps has a right to do that.
“Speech is powerful,” Chief Justice John G. Roberts Jr. wrote for the majority. “It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.”

But under the First Amendment, he went on, “we cannot react to that pain by punishing the speaker.” Instead, the national commitment to free speech, he said, requires protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.”
I believe this was the right decision. We do not, in this country, block even vile speech. Yes, it means Phelps can use vicious words. But blocking speech the majority finds difficult would also mean that pro-women's rights or pro-gay voices could be silenced. As Adam Serwer writes,
By 8-1, the Supreme Court voted no. It's one of those rulings that reminds you that at least on some very basic understandings of what "free speech," means, both conservative and moderate jurists on the court are on the same page: You don't forfeit your First Amendment rights just by being an asshole.
The real measure of whether you actually do believe in the Constitution, is whether you believe it really does apply to everyone, not just those whose views the majority finds palatable. It's the argument that makes it abhorrent to block marriage for gay Americans, or to deny Muslim Americans the right to build a mosque. If you really believe in free speech, then you have to support even those whose speech is offensive.

What do you think?

18 comments:

Ann said...

I agree -- speech is either free or it begins to close down on one group after another. Fred et al are looney tunes and hateful - but unless they are crying fire in a crowded theater - they can speak. And they actually drive the mushy middle over to our side as no one want to be associated with them. We felt their presence at several General Conventions helped the marriage equality and access to ordination resolutions along.

F. Harry Stowe said...

A correlate of free speech is responsibility, taking the consequences of your acts. The Court gave Phelps a Get Out of Jail card on that. Striking down a ban on funeral demonstrations would make sense; it is prior censorship. But saving a fool from the cost of his folly doesn't seem right. To be sure, fear of the consequences can prevent a reasonable person from expressing an unpopular view, but that is a test of conviction (which, alas, Phelps would pass). Drawing the line is more difficult than an 8-1 decision suggests.

Paul Powers said...

This is really a very narrow decision. Phelps et al followed police instructions and stayed 1000 feet from the church. They did not disrupt the funeral itself. Mr. Snyder could only see the tops of the signs, and he didn't know their content until he watched the TV news that evening. The court found that under these circumstances, allowing him to recover for intentional infliction of emotional distress violated the First Amendment. If Phelps et al had actually disrupted the funeral, the result may have been different.

Also, the decision does not address the constitutionality of state laws that restrict picketing at funerals because Maryland had no such law at the time. It just addresses whether the deceased's family can recover civil damages against the Westboro folk under these circumstances.

JCF said...

I feel passionately ambivalent.

In general, I agree w/ Free Speech.

On the other hand, WHERE *exactly* does one draw the line between "'Fire!' in a crowded theater" and "I'm glad your child is dead and burning in Eternal Fire!" to a grieving parent? What's the exact PRINCIPLE determining "speech beyond the pale"?

[I see the former as INCITING Unthinking Panic. But does not the latter REASONABLY incite Unthinking Rage (raging grief)?]

***

Y'know, I really don't think the WBC is THAT much about "hating f@gs", anymore (and it's OBVIOUSLY not a "church"!).

It's much more of a conspiracy, based on a radical ethno(familial)-centrism, to extract funds via lawsuits (which is why Phelps kids are all lawyers, not ministers). RICO?

IT said...

In France, designer John Galliano will face trial over his anti-semitic remarks. I think that's wrong.

JCF said...

I agree re Galliano, IT.

Some have cited "Nazis marching through Skokie IL" as a parallel to WBC. But even that seems less personal---and more distant---than the WBC at a funeral, for someone who has JUST died (the US Nazis of course marched decades after the Holocaust. And Galliano further decades later!)

Lionel Deimel said...

No, Mr. Stowe. Free speech means you can be irresponsible. Phelps is loathsome, but he still gets to express his opinion.

I agree with the court, as I said in my own post.

dr.primrose said...

If you want to read the entire opinion, or even just the court's summary of its opinion, you can read it here.

A couple of points in addition to those mentioned above.

First, the signs were generic and basically the same signs they use at all their picketing. They did not mention the soldier by name. Only one of several signs mentioned "dead soldiers." The rest concerned other subjects.

Second, one of the issues about this case that had been discussed before the decision came down was a Westboro Baptist Church internet posting that viciously attacked the soldier and his family by name. It's quoted in full on pages 8 and 9 of Alioto's dissent. The majority said this posting was not part of soldier's parents' petition to the court and was therefore not properly before the court (page 3, footnote 1). The internet posting is quite a different thing from the picketing. It would have been most interesting to have the court's views on the internet posting under the Free Speech clause.

dr.primrose said...

If you want to read the entire opinion, or even just the court's summary of its opinion, you can read it here.

A couple of points in addition to those mentioned above.

First, the signs were generic and basically the same signs they use at all their picketing. They did not mention the soldier by name. Only one of several signs mentioned "dead soldiers." The rest concerned other subjects.

Second, one of the issues about this case that had been discussed before the decision came down was a Westboro Baptist Church internet posting that viciously attacked the soldier and his family by name. It's quoted in full on pages 8 and 9 of Alioto's dissent. The majority said this posting was not part of soldier's parents' petition to the court and was not properly before the court (page 3, footnote 1). The internet posting is quite a different thing from the picketing. It would have been most interesting to have the court's views on the internet posting under the Free Speech clause.

Paul Powers said...

JCF, Phelps himself is a disbarred civil-rights lawyer. Hard to believe ain't it ?

Erika Baker said...

The European view of Free Speech is that it has to be curtailed when it is used to incite actual violence.
It is not immediately obvious that this should be wrong.

And I think the Galliano case has to be understood in the context of World War II, which really traumatised Europe. Making sure that this can never happen again is what made a number of countries prohibit anti-semitic speech. In Germany denying the Holocaust is a criminal offence.
And Europe looks at anti-Semitism rising again in its borders and believes that these laws still have their place.

JCF said...

when it is used to incite actual violence

Well, that's the question, isn't it?

Beside the famous Fire/Theater case, to shout "I'm going to kill you!" at someone is also illegal. It's assault---and it certainly incites!

But where, exactly, does "incitement" begin?

Europe has a much broader definition than the US does (rightly or wrongly).

But I still don't understand WHERE it begins, in the US.

IT said...

JCF, I fully agree with the court's decision here. It would be problematic in the extreme is Phelps' crew (whose vile signs do not actually call for any violence) were blocked from legitimate protest.

but even in the case of the guy who used the image of two ropes and lynching gay couples--I think that speech should be allowed too. Better to have it in the open and shine light on it!

And I believe that art and speech that Bill Donohue dislikes should also be allowed (too bad the Smithsonian doesn't agree).

I find it interesting that so many progressives would make the government into our nanny here.

But the question is always--who decideds?

Grandmère Mimi said...

As hateful as as I believe the speech and signs of the Phelps crew are, I agree with the court's decision.

And Europe looks at anti-Semitism rising again in its borders and believes that these laws still have their place.

Erika, I wonder if allowing the hate groups to let off steam, so long as no one gets hurt (with the exception of feelings), and there is no incitement to violence, is not taking the better part.

dr.primrose said...

If you want to read the entire opinion, or even just the court's summary of its opinion, you can read it here.

A couple of points in addition to those mentioned above.

First, the signs were generic and basically the same signs they use at all their picketing. They did not mention the soldier by name. Only one of several signs mentioned "dead soldiers." The rest concerned other subjects.

Second, one of the issues about this case that had been discussed before the decision came down was a Westboro Baptist Church internet posting that viciously attacked the soldier and his family by name. It's quoted in full on pages 8 and 9 of Alioto's dissent. The majority said this posting was not part of soldier's parents' petition to the court and was not properly before the court (page 3, footnote 1). The internet posting is quite a different thing from the picketing. It would have been most interesting to have the court's views on the internet posting under the Free Speech clause.

IT said...

Dr Primrose, Blogger decided you were spam. I have corrected the error....

JCF said...

I think Blogger has been deciding that if you include an HTML link in your post, you're spam. {roll eyes}

dr.primrose said...

I've been called worse!