Thursday, March 3, 2011

The Right To Be Stupid

Funeral Picketing is Free Speech, Court Rules:

The First Amendment protects hateful protests at military funerals, the Supreme Court ruled on Wednesday in an 8-to-1 decision.

The decision, from which Justice Samuel A. Alito Jr. dissented, was the latest in a series of muscular First Amendment rulings from the Roberts court. Last year, the court struck down laws limiting speech about politics and making it a crime to distribute depictions of cruelty to animals.

Chief Justice Roberts used sweeping language culled from the First Amendment canon in setting out the central place free speech plays in the constitutional structure. “Debate on public issues should be robust, uninhibited and wide-open,” he wrote, because “speech on public issues occupies the highest rung of the hierarchy of First Amendment values.”
Very true, except I'm not sure the "speech" in question here quite rises to the level of "matters of public import" the majority claims.
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 group recently turned up at the funeral of Elizabeth Edwards and declared that 9-year-old Christina Taylor Green, a victim of the Tucson shootings in January, was "better off dead."

These are "matters of public import" to whom?

Fundamentally, I think the ruling is wrong but the sentiment of the eight gets it right: as uncomfortable or harmful as certain kinds of speech can be, we should protect dissent at all costs. And I agree with Chief Justice Roberts' poetics when he writes:
Speech is powerful. It can stir people to action, move them 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 stifle public debate.
But what about, as Justice Louis Brandeis wrote in Olmstead v. U.S. (1928), "the right to be left alone, the most comprehensive of rights and the right most valued by civilized men"? Isn't the Phelps case less about speech and more about privacy, particularly the right to conduct the funeral of a loved one in private, away from the histrionics of a group of kooks?

I actually found Alito's lone dissent to be quite compelling (he was the lone dissent in last year's bizarre ruling regarding animal cruelty and crush videos U.S. v. Stevens 2010, and will probably dissent in the violent video game case Schwarzenegger v. Entertainment Merchants yet to be decided). As he notes, under the First Amendment the Phelps can print, disseminate, video or broadcast their prejudicial and wacky beliefs till the cows come home, but...
It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.
Alito then goes into lengthy detail about what kind of "public debate" the majority is protecting, including the online attack of the parents of Mathew Snyder by the Phelps.
After the funeral, the Westboro picketers reaffirmed the meaning of their protest. They posted an online account entitled “The Burden of Marine Lance Cpl. Matthew A. Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants of Maryland Connect the Dots!” Id., at 3788. 15 Belying any suggestion that they had simply made general comments about homosexuality, the Catholic Church, and the United States military, the “epic” addressed the Snyder family directly:

“God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD! You did JUST THE OPPOSITE—you raised him for the devil.

"Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic monster they condemned their own souls. They also, in supporting satanic Catholicism, taught Matthew to be an idolater.

“Then after all that they sent him to fight for the United States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life, putting him in the cross hairs of a God that is so mad He has smoke coming from his nostrils and fire from his mouth! How dumb was that?”

It is abundantly clear that respondents, going far beyond commentary on matters of public concern, specifically attacked Matthew Snyder because (1) he was a Catholic and (2) he was a member of the United States military. Both Matthew and petitioner were private figures, 16 and this attack was not speech on a matter of public concern. While commentary on the Catholic Church or the United States military constitutes speech on matters of public concern, speech regarding Matthew Snyder’s purely private conduct does not.
Frankly, I'm not sure how the Snyder's didn't win on a defamation claim. The majority claimed the speech directed towards them wasn't "personal" or "private," but I'm not sure how much more personally private the above attack can get.

No one is a bigger proponent of the first amendment than yours truly, but I agree with Alito in failing to see how the kind of "speech" perpetrated by the Phelps has anything to do with public discourse or issues of import.

It's more analogous to the kinds of speech the court has routinely ruled against, from cross burning to Justice Oliver Wendell Holmes' admonition regarding "falsely shouting fire in a crowded theater."

It's speech that is designed to incite, harm, promote fear and intimidate people. It's speech designed to inflict pain and nothing more. Traditionally, that falls outside the protection of the First Amendment.

But what do I know?

The case is Snyder v. Phelps (2011)

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