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The Limitless First Amendment?

Originally posted on March 5 (reposted after discussion with students at law school preview day)

Since my first posting on the Westboro Baptist Church case, I’ve discussed it in a bunch of different settings — on Facebook, at swim practice, at work. The case, recall, involved Albert Snyder, the father of a dead soldier who just wanted to bury his son in peace, against Fred Phelps and his sub-human followers (and their exploited children). I’ve also been reading around on the decision, coming up mostly with misty-eyed defenses of the holding. Andrew Sullivan is typical in this regard: In a brief post, he criticized French laws that criminalize certain kinds of hate speech while celebrating the decision in the Westboro case. His conclusion: “I’m glad I live here.”

But let’s look at the kind of behavior Sullivan is defending. According to the linked story from the Guardian, the defendant, John Galliano, has done such things as the following:

Galliano was arrested on Thursday in the chic Marais district of Paris after allegedly shouting anti-Jewish and racist insults at a couple. He denied the allegations and his lawyer said he was counter-suing the couple for defamation. Police said he had drunk the equivalent of two bottles of wine.

Two days later a second woman claimed Galliano had similarly insulted her in the same bar in October. Then a video was put online appearing to show Galliano on another occasion telling two women: “I love Hitler. People like you would be dead. Your mothers, your forefathers would all be fucking gassed.”

The last one is particularly upsetting, and it’s right here:

So this boor got right “into the grill” of these two women (to quote Marjorie Phelps during oral argument in the Snyder v. Phelps case), in a way that is beyond insulting and possibly even threatening. (Phelps herself implied that the speech shouldn’t be protected in such cases.) Is this really the kind of speech — especially the last spew — that the Founders would have wanted protected? And even if it was, so what? Back when the Nation was founded, we didn’t have tort law that protected against invasions of privacy or the intentional infliction of emotional distress, either. Now we do, and I’m in favor of drawing the line where others won’t, in favor of the plaintiff in this case. Here’s dissenting Justice Alito from Snyder v. Phelps:

“Our profound national commitment to free an open debate is not a license for the vicious verbal assault that occurred in this case.”

But almost everyone’s drunk on First Amendment Kool-Aid, and the trickle-down of this poisoned liquid has been to render criticism of the majority’s decision somehow almost un-American. Here’s Philadelphia Inquirer columnist Solomon Jones, trying to reconcile his anger with what he thinks the law requires, and coming up with a call for responsibility:

From a legal standpoint, perhaps the court made the right decision. But when I view it through the prism of fatherhood – a prism that bends and refracts the colors of love and hope that are embodied in our children – I can’t see a circumstance in which the protesters could ever be right.

Had I been that father, confronted by protesters while in the throes of unspeakable grief, I doubt that I could have maintained my composure. If you hate my child because you believe that he is tangentially connected to someone else’s lifestyle, that’s fine. Don’t disrespect or scandalize my child because of it. Don’t wait until he dies to twist the knife. Don’t hurt my child in order to prove a point to someone else. Confront the real target of your rage, and face whatever circumstances result.

That’s not what happened in this case. In this case, a group of people decided that it would be easier to confront the dead than to confront the living. That, in my estimation, is not only wrong. It is cruel. And yet their protests, as distasteful as they may be, are still protected under our laws.

I don’t pretend to understand the twisted logic that would allow professed Christians to compound a father’s grief by protesting at his son’s funeral. But I do understand that freedom brings with it profound responsibility. And in the case of these protesters, they abdicated that responsibility. They went beyond the pale.

Yes, speech in America is free. Yes, we can espouse whatever opinions we wish. Yes, we can gather and protest. But in a land where free speech is at the very root of our democracy, each one of us is responsible for what we say. We are responsible for where we say it, and especially in the case of those who claim to speak for God, we are responsible to an authority that the Supreme Court cannot touch.

But the misguided dopes that are part of the WBC aren’t reading this, much less taking it in. Almost everyone would agree that — laws prohibiting this kind of behavior aside — basic decency and a sense of responsibility militate against what the Phelpses did here. So the question is whether something more is needed. Tort law can supply that missing piece, compensating the injured party and deterring future such acts, and the jury’s verdict should have been allowed to stand. Would such tort liability “chill” speech, the catechismal concern of constitutional law scholars and jurists everywhere? I hope so.

I might be almost alone, but there are others who at least see a big problem here. A particularly astute Facebook friend writes:

I too am befuddled the lack of nuance in the widespread positive response and the increasing conflation of “free speech” with “universally consequence-free speech.” The actual facts–both those considered by the majority in construing the signs and those set aside in (arguably: swept under) the first footnote [she means the “epic”, which the Court declined to consider] –would seem to make for a much closer call than most of the blogosphere recognizes, whichever side one comes down on.

Yes. A little more debate, please.

  1. Charley
    March 5th, 2011 at 14:11 | #1


    There can be consequences to Phelps’ speech, just not legal ones. Shunning comes to mind. Or an agreement by the press not to cover such rudeness. Or we can all just agree that they’re idiots and children and stop paying attention. But having seen way too many places where speech is not free, I’d rather deal with the rude, since so much of my speech, particularly about pacifism and cock sucking, is seen as cruel, etc. For instance, on Reagan’s death, many of us were free to say loudly that he was NOT a good man, that he fiddled while our community got sick and died, and we could have, and should have been able to, throw a good old-fashioned ACT-UP demo on his ass. Like it or not, the WBC speech is political, but I’m seeing way too many problems with blasphemy and other such laws in SE Asia to be OK with limits on political speech. It just means we have to keep being educated about such stuff.

  2. March 5th, 2011 at 14:32 | #2

    Charley, thanks for the thoughtful comment. But…shunning? This group is almost universally reviled. (I agree about the press coverage by the way.)
    And I don’t think that the Reagan criticisms — which with I more than agree — relate, because there you had the most political of all creatures: a U.S. President. This was a private citizen, and to me much of the speech here was deliberately made to injure this person and NOT to make a political point. I know that, for most, this is too hard a line to draw. But for me, it’s no different, really, than had these clowns physically assaulted the grieving family. With or without press coverage, there’s a wrong here and the plaintiff should have a remedy.
    I recognize the danger of what I’m saying, but I think we can draw a line in this kind of rare case involving attacks on private citizens, whether or not the camouflage of a political point is being made.

  3. Jay
    March 7th, 2011 at 11:05 | #3

    Thanks for a good discussion of this case.

    I agree with you. The first amendment should not be a vehicle to authorize hate speech.

    I certainly think it is a canard to argue that we need consequence-free speech to protect our democracy. Countries like Canada that have reasonable limits on speech have far more vital democracies than we do, at least in part because their politics have not been so tainted by toxic speech. (It also helps that they have a better educated electorate and serious protection for minority rights.)

    I find it weird to think that I agree with Alito on something.

    Another thing about the coverage of this case. All the sympathy seems to have been focused on Mr. Snyder and other military families. It made me wonder why more people didn’t remember (or care) about the picketing at the funerals of gay people.

  4. Ann Hubbard
    March 7th, 2011 at 12:23 | #4

    Maybe one way to draw the line is more privacy for private citizens. When I went to Justice Blackmun’s memorial service, it was a given that anti-abortion protesters would be outside the church. We even joked that the Justice would have thought this was fine. But he was a public figure, and the protesters had a policy disagreement with him. And they were not screaming to his family that they were glad he died. I’m not a First Amendment scholar, but I’m glad to see you searching for some way to preserve political speech AND carve out some safe space for grieving parents.

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