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Free Speech for All Speech

Thursday, March 3, 2011, 15:22 EDT Leave a comment Go to comments

We’ve all seen the news stories about the Westboro Baptist Church. They’re the small group of hateful people who go around the country protesting at military funerals holding signs that express such un-Christian sentiments as “Thank God for Dead Soldiers” and “God Hates Fags.” Charming, isn’t it? So much for wondering What Would Jesus Do.

After the Kansas “church,” which consists primarily of Fred Phelps and members of his family, held such signs outside the funeral of a U.S. Marine killed in Iraq, the father of the deceased sued Phelps and won. Yesterday, the Supreme Court reversed the ruling in a decision from which only Justice Samuel Alito dissented.

The majority opinion written by Chief Justice John Roberts, along with a concurring opinion by Justice Steven Breyer and Alito’s dissent, can be read here, and I encourage you to do so, as it contains not only the facts of the case and the history of the litigation, but also the reasoning behind the court’s decision. Supreme Court decisions are like maps through the thought processes of the justices and how/why they decided as they did. In this case, I find it impossible to adequately encapsulate the whole thing in a couple paragraphs, so instead I quote Roberts’ closing paragraph:

Speech is powerful. It can stir people to action, movethem to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stiflepublic debate. That choice requires that we shield West-boro from tort liability for its picketing in this case.

Alito responded that, “In order to have a society in which public issues can beopenly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.” But brutalization is exactly what a deeply offended person feels. The Constitution contains no guarantee of freedom from speech; in the absence of threats or slander, offense shouldn’t be (and, according to the court, isn’t) enough to warrant the government’s stepping in to punish the offender.

I detest what the Phelpses do as much as anyone, and I am very glad indeed that folks like the Patriot Guard Riders step up across the country to shield mourners of our military dead from such vitriol. But the Supremes got it right. If we accept limits on freedom of offensive speech, we endanger the freedom to say anything the least bit controversial, since someone somewhere is bound to be offended. The fact that most people are offended by the Phelps family’s rhetoric is the very reason why the court needed to rule as it did.

People tend to think that freedom and liberty include the right not to be offended. Nothing could be farther from the truth. Real liberty means that we must actively protect speech (and sometimes actions) we abhor, because that’s the only way to guarantee that at another time, place, and circumstance, the government won’t try to silence us.

First they came for the Socialists, and I did not speak out —
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out —
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out —
Because I was not a Jew.

Then they came for me — and there was no one left to speak for me.

Martin Niemöller (1892-1984)

Categories: law & justice, military

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