Tuesday, April 13, 2010

The Weaponization of Free Speech

The Westboro Baptist Church (“WBC”) has a date with the Supreme Court. The Church – better identified as a hate group – is known for its vitriolic protests at funerals of US servicemen and various institutions across the country. The small group, mostly relatives of its founder and pastor, Fred Phelps, preaches a vicious anti-homosexual message. They claim that America’s supposed depravity is continually punished by an angry god – hence their frequent presence at the funerals of servicemen killed in action. They applaud these deaths as evidence of America’s wayward nature.

In the past, the majority of their targets have chosen to ignore the protestors, who have always been in compliance with the proper regulations for assembling. Even so, a few years ago a group of bikers, The Patriot Guard Riders,  – many of whom were veterans themselves – coalesced and began showing up at protests to drown out the hatred with their motorcycle engines.

But one father, Albert Snyder has fought back. After the WBC picketed outside of his son’s, Marine Lance Cpl. Matthew Snyder, funeral in 2006, Snyder launched a lawsuit against the Church. The case is now on the docket to be heard before the Supreme Court this fall.

The case, which Snyder originally won before it was overturned by a Federal Appeals Court, pits Snyder’s privacy against WBC’s claim to First Amendment freedoms. Some legal scholars argue, that as heinous as WBC’s behavior is it nevertheless should be protected as free speech.

This argument, however, is rife with flaws. The right of free speech is predominantly to prevent oppression by the government. It is necessary not to allow sounds to come from individuals’ mouths, but to allow ideas to flourish and prevent those with power from silencing the minority. As has been argued on ANR before, free speech is not a concept that is synonymous with talking but one of expression of ideas.

In this regard, every spoken word is not deemed allowable. Certain speech, such as the classic “fire in a movie theater,” is deemed harmful and thus prevented. The logic behind such restrictions is that by yelling “fire” in a public place physical harm may be caused. However, harm need not be limited to the physical. WBC’s actions indubitably create harm, albeit often of the emotional kind.

The proper role of the government, when overseeing the interactions between individuals, is to serve as a referee to prevent unjust harm, or encroachment by one party on another. Whenever the desires of individuals come into inevitable conflict, the government should have well defined rules as to whose actions have un-righteously harmed the other. In all other instances, individuals should be left to their own devices. American’s possess the right to free speech to limit the government’s ability to encroach on their private domain – to prevent tyranny of the government. But that does not mean the concept of free speech should be weaponized to inflict harm on others. The WBC should be entitled to preach their dastardly views to those who wish to be party. They should not be prevented from having or expressing their opinions. But there is a time and place for any act. When such expression moves into the public sphere and causes intolerable harm, it has crossed a line. Free speech must be coupled with freedom to avoid speech.

If the Supreme Court allows WBC’s actions to stand, it will greatly miss the mark on how America should be structured. To disavow the direct harm that comes from a misappropriation of this right in no way diminishes the concept of free speech, but rather strengthens it. This is not an issue of establishing a slippery slope, as some claim, but one of clearly defining the concept. Without such definition, the concept of free speech becomes a mockery, where any individual can cloak himself in its guise – not to speak but to cause damage. If preventing such damage is not the responsibility of government, then there is little for it to do.


  1. Josh--

    This is a dicey subject, perhaps best precedented by the infamous Nazi rally held in Skokie, Ill. back in the late 1970s. (The ACLU, which succesfully defended the right to protest by the white supremacists, consequently lost many members.)

    I think the WBC -- which I am vaguely familiar with -- is among some of the most despicable groups in this country. But your argument seems to suggest that you wish for the government to essentially regulate free speech.
    Surely you realize that if you support the right to "protect" individuals against speech you (and I would think all decent people) find despicable, then that very regulation can work against interests that are dear to you, but perhaps offensive to others. (Israel rallies on college campuses, etc. is the first example that comes to mind.)

    I detest moral equivalency espoused by liberal extremists, but keep in mind your "fire" example is a case of potential bodily harm; legally, I doubt you can find a statute that says that people are entitled to a quiet, solemn burial of fallen soldiers (as callous as it may be).

    Nothing would make me happier than to see the likes of the WBC and their ilk to be forever banished from the earth. But the wisdom of our mutual buddy Voltaire, if it is to be embraced and implemented, has perhaps never been more pertinent when spotlighted against this episode.

    Besides, if the Supreme Court can willfully ignore reality in favor of a strict interpretation of the Constitution when ruling on Citizens United, I would fully expect them to rule in favor of WBC in this instance.

    (On another note: I'm all for linking content, but keep in mind that in a sense, you are providing publicity for WBC when you link to their Web site. Justice may supposedly be blind, but angry bloggers need not feel indentured to such standards.)


  2. Karl~

    First of all, you are probably correct that the Supreme Court will rule in favor of WBC. But I am not a lawyer and precedent is far less important than determining what is right.

    I disagree, however, that a decision against WBC need be a 'slippery slope'. A slippery slope is a concept that generally allows behavior that most people agree is unjust, but 'needs' to be allowed because individuals are either too lazy or are having too much difficulty in discerning an appropriate rule that separates the undesirable from the desirable (or allowable) behavior.

    Most people, as you say, agree that the WBC's behavior is reprehensible. Why? The reason, I believe, is because it serves no purpose other than to inflict harm. While you point to physical harm with the 'fire' instance; I see no reason to readily distinguish emotional harm which can be as injurious if sometimes not more. I think anyone can make a clear distinction between the WBC's ability to voice their opinions on their website (which I linked to to allow ANR's readers to see the full hatred of their organization) and their ability to use language as a tool of harm. The former is about an idea and about being allowed to communicate that idea, no matter how banal it is. The second is not so much about the idea, but about an intrusion on another's domain in order to injure. It is not the speech that should be limited or maintained, but the intrusion that is problematic. We have certain standards of decorum and behavior that are socially and legally required within the public domain. It is the responsiblity of the government to protect individual citizens from gross intrusion by others.

    In this regard, I think a clear cut standard that prevents assembly and hate speech when the outcome is clearly one of gross injury is appropriate. This separates the freedom of speech that allows people to voice their ideas AND also separates the freedoms to protest the government or advocate a policy. For instance, just as I think the pro-Israeli demonstrations that you allude to should be allowed, I think if the WBC wants to protest pro-homosexual policies on the National Mall or down Sixth Ave in NY, they should be allowed.

    The difference is clear and need not be a 'slippery slope' that leads to government oppression of free speech. This is not an issue of the government interacting with the people, but one of the government mediating between different people (libel and slander laws come to mind). In this regard the government's role is to minimize the injury caused by individuals upon each other. By telling the WBC they cannot protest outside of Snyder's funeral little harm is done to their organization or message, but much harm is prevent to Snyder's family.

    This isn't really an issue of free speech per se - but, as my title indicates, an abuse of a concept in order to inflict pain and suffering upon others. Free speech vis-a-vis the government should not be limited; but all words or sounds that come from one's mouth are not necessarily speech.


  3. Josh--

    First, libel (slander is basically impossible to prove) has been established as "actual malice" by the SCOTUS (i.e. "printed lies"), so the WBC's cultist indulgences don't really apply here.

    But you've mentioned a "slippery slope" several times now in both you original post and response, though I think you've got it backwards: this isn't about setting precedent, but rather, cherry-picking opportunities as to suppress views that are outside the norm of what is informally regarded as polite debate.

    You write, "I see no reason to readily distinguish emotional harm which can be as injurious [as physical harm] if sometimes not more." You have got to be kidding me. Is this the job of our government, to sort out (and prove!) which statements are emotionally injurious to people? Surely that constitutes a slippery (slippier?) slope much more than upholding the WBC's right to protest at a public setting.


  4. Karl~

    It isn't about the ideas or views, but about the means and intent of delivery. I agree that no action should be taken to suppress or oppress ideas. I believe each individual is sovereign in his own domain, but once one steps into public space there are, and have always been, restrictions placed on their actions. It is the job the government not to selectively choose instances to oppress individuals but to set guidelines as to what restrictions apply in given instances - that does not involve cherry picking.

    Limiting hate speech is something that is already done in America - look at the higher penalties given for such crimes. That is no more a slippery slope than if someone yells 'smoke' in a movie theater or 'free movie tickets'? (Are either dangerous enough to cause physical harm?)

    The point is that if you and I can determine it is wrong - there is no reason why there is not an objective criteria that can be defined and rendered law that will determine appropriate action. Leave it to the town boards when dealing with permits to assemble to reject applications that are so heinous in nature to be detrimental to individual or public welfare (this is often done anyway). If such cases go to court, a judge or jury can adquately determine if it meets the criteria of law.



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