The Price of Free Speech
Free speech — is there a more hallowed staple of the American Creed. Yet nothing is ever free; we pay a price for everything. As Memorial Day approaches my thoughts wander back to the Supreme Court’s 8-1 decision back in March that said a traveling band of Baptists from Westboro, KS, has a constitutional right to stand on the outside perimeter of a military funeral and insult a young soldier who died for his country, his family and the nation to whom he made the ultimate sacrifice.
The case began when the father of the soldier killed in Iraq sued the Westboro protesters for obscenely upstaging his son’s funeral and causing extreme mental distress to him and his family. He was awarded a substantial settlement at the district court level. The Baptist group appealed and Chief Justice John Roberts writing for the majority sided with the Baptist group stating: To silence a fringe messenger because of the distastefulness of the message is antithetical to the First Amendment’s most basic precepts.
The first thing that jumps out at me in this exploding grenade is who writes Justice Robert’s euphemisms — himself or his law clerks. If it’s the latter they should look for other employment and if it’s the former then Justice Roberts desperately needs to broaden his vocabulary. To use such a sorry and inadequate noun as “distastefulness” to describe such egregious and disgraceful behavior should in itself be unconstitutional. I jest, but I am truly saddened that seven other justices concurred with Justice Roberts. Justice Samuel Alito, in denying that the First Amendment was meant as “a license for the vicious verbal assault in this case” was the only one that dissented from the majority opinion of the nation’s highest court.
The Westboro Baptists are known for picket signs spewed with malefic sentiments: “Thank God for Dead Soldiers” and “God Hates Fags” are some heartwarming examples of making some visceral point that is utterly pointless. The respective slogans, if you haven’t guessed, are ideologically linked in that they exemplify the Westboro Baptists’ belief that as long as America travels down the path of Sodom and Gomorrah it is immoral to fight for your country.
The Supreme Court’s decision upholding the right of the Westboro Baptists to disrupt the funeral of a national hero is perplexing because it had previously held that words which “by their very utterance inflict injury or tend to incite an immediate breach of the peace are not protected by the First Amendment.” This decision is an entirely reasonable exegesis of the constitutional understanding of free speech in that it judges that invective, especially when offensively provocative, is not speech insofar as it doesn’t seek to persuade or dissuade, to convince or disabuse any idea or doctrine, but is purposely designed to incite or inflame to the point where its ultimate effect is to shut down speech rather than liberate it. It’s a tactic that reduces speech to an ugly parody, tantamount to harassment. While the very nature of pluralism must allow prejudices and idiocies, our society must also be governed by Oliver Wendell Holmes Junior’s dictum that “The character of every act depends upon the circumstances in which it is done.” From this ukase arose Holmes’ famous example of “shouting fire in a crowded theatre” when you knew there is no fire.
The courts have sought to walk a fine line in terms of freedom of expression. It has allowed offensive speech to occur on the street where the listener has recourse to walk away beyond the earshot of the vitriol. But to permit it at a military funeral where the bereaved have nowhere else to go is beyond the pale of reason and humanity. I may be old fashioned but I believe a free society needs taboos as much as it needs affirmations if it is going to cohere as a nation. When we come to believe that in the holy name of the First Amendment, that white-hooded men burning a Christian cross in front of a black family’s home or skinheads waving a swastika in front of a synagogue is just another form of political speech, then reason has become an unwilling captive of madness. Such symbols insinuate not thoughts but violence and cannot in any way be construed as what the architects of the Constitution envisioned as freedom of expression.
Such prohibitions should, I grant you, be more the exception than the rule. History is fraught with the narrative of extremes by which individuals are led by their passions and prejudices. As long as these biases do not present a “clear and present danger,” they should stand unmolested in their malice and stupidity. To treat every conceivable expression as a monument to free speech is ludicrous and ultimately self-defeating for an enlightened and humane society. The way a society defends itself against those who advocate beliefs that are irresponsible and deeply offensive to its mores and values is censure not censorship, whose function is to insulate or disassociate civil discourse from uncivilized behavior by exercising both social and commercial sanctions against the offending parties.
But even social sanctions must have their limits if tolerance is not to devolve into timidity. Common sense and a little perspective are more than sufficient to delineate between protected and unprotected speech. That all the nuances of freedom of expression are not resolved among responsible and thinking people is understandable and even welcomed. There can and should be no pretense to infallibility when debating the application of Constitutional law in difficult cases where conflicting rights often clash. But neither should there be an abdication in the acknowledgment that all species of argument do not fall under the protection of the First Amendment and that in saying as much does not mean that the next step is building a bonfire for banned books.
I see the Westboro decision as a disturbing example of how the crassness of our culture has not only affected our politics but our judicial system. What a pitiful departure from John Milton’s Areopagitica that saw free speech as a royal road to the truth and not a circus of malignant pronouncements. The Westboro decision is a damning indictment of cultural relativism and leaves a chill in the air this Memorial Day when America will honor all those who made the supreme sacrifice including that soldier whose memory was desecrated not only by the Westboro protesters, but by the Supreme Court’s reckless and unconscionable decision.