Monday, March 7, 2011

Supreme Court: Right on the Funeral Protests

[The first few lines here are from the previously posted Intro.]

Yes, these people are despicable.

What they are saying is moronic, ignorant, bigoted, hateful, vicious. If there is a God, and if He is just, he may have a special place for these people. At least some hereafter reform school as a stopover enroute to eternity.

But governments and rulers are not God. And though they must regularly make judgments, it is an essential ingredient of our American credo that they can't make judgments about our speech.

At the very least, governments in America--federal, state, and local--cannot prohibit or punish the content of our speech. We are free to have our opinions and to say what they are. Whether brilliant or idiotic. Enlightened and learned or bigoted and baseless. Favorable or unfavorable, popular or unpopular, beloved or despised.

Freely speaking our views and opinions. The very essence of liberty. Indeed, an absolute necessity if "liberty" is not to be a cruel joke and a fraud. The matrix of all other freedoms and rights.

This is hardly me speaking. This is the wisdom of philosophers and statesmen and jurists whose shoes I could not tie. The John Locke's, the Thomas Jefferson's, the Benjamin Cardozo's.

But on a much less lofty note, let me offer a few observations about Snyder v. Phelps and American constitutional free speech.

Let's start where judges should always start--and citizens too. With the Constitution itself. The very language of the Constitution. Here, the 1st Amendment. 

[As we've discussed previously on this blog, the 1st Amendment actually applies only to the federal government, as does the rest of the Bill of Rights. But it has been made applicable to--i.e., enforceable against--state and local governments through the post-Civil War 14th Amendment which protects "liberty" specifically from state violation.]

The 1st Amendment expressly allows "no law abridging the freedom of speech." Yep, no law. There are no conditions or limitations or exceptions stated.

Of course, it would be insane to apply the 1st Amendment literally. With all due respect to those who nauseatingly call for "strict construction" of the Constitution. And with all due respect to those who even more nauseatingly insist that judges must only apply the law not make it.

Yes, with respect to those folks, we can all be grateful that judges have avoided a literal or strict application of the 1st Amendment. Grateful that they have certainly made law by effectively adding exceptions to the 1st Amendment.

We've explored this before at some length on New York Court Watcher. So, for example, the classic: falsely shouting fire in a crowded theater can be outlawed and can be punished. Same for a soldier saying "F_ you" to a General giving an order. Same for announcing publicly that the President should be killed. Same for falsely claiming that a woman is a prostitute. Etc. (See the discussions in Kagan Nomination--Questions for Her & Her Questioners, Part 2 ("Judicial Activism" & the Constitution [Free Speech]), June 18, 2010; Free Speech Addendum; Re: General McChrystal, June 23, 2010.)

So, there are exceptions to constitutional free speech protection. But the critical point is that the exceptions are very limited and very compelling. It may be that "no law" cannot actually mean "no law." But it can at least mean "no law as much as sanely possible."

So what about the moronic, despicable, bigoted, emotionally hurtful speech engaged in by the Westboro Church? Is it dangerous? A clear threat to safety? Health? National security? Military discipline? The reputation of a targeted individual? The answer's clear.

Now, would most of us prefer the public discourse to be more civil? More helpful to the resolution of public issues? Less ignorant? Less mean-spirited? Of course--at least one would hope so.

But would we really want the freedom of speech to depend upon those factors? Uncivil speech outlawed and punished? Unhelpful speech outlawed and punished? Ignorant speech? Mean-spirited speech? And who would judge? And how much speech would remain protected? 

"Obama's a socialist who's ruining America." Free speech protected? "Oh, and he's not an American, but he is a Muslim." Protected?

And "George Bush was dumb and Dick Cheney a war criminal." Free speech protected?

"Justice Scalia is a homophobe." "Justice Thomas is a self-loathing Black." "They're both fascists." "Justice Kennedy is an unprincipled jerk." "Justice Ginsburg is a clueless flaming liberal." "Liberals hate America." "Conservatives are racists." Free speech protected? 

Yes. To all. And we all know that. Indeed, most of us engage in such speech from time to time without fear of being arrested and punished, or sued and penalized. We mostly say what we want.

We have made a choice in this country to tolerate as much speech as possible without endangering health and safety and the very security of the Republic. We have made the judgment that the freest of speech is an absolute essential to a free society.

Even stupid speech. Idiotic speech. Ignorant speech. Mean-spirited speech. Unpleasant speech. Offensive speech. Frustrating, infuriating, confused, clumsy, indelicate, etc., etc., etc., speech. 

Better that than the government deciding which speech contributes enough to the debate on public issues to be worthy of protection. Better than the government (i.e., politicians) deciding what speech is tolerable (i.e., not too unpopular). Better than Americans having to worry about what they can and can't say about public matters.

That's the choice that's been made in this country. By the Framers in the 1st Amendment. By the Supreme Court in its free speech jurisprudence. By most Americans in the way we freely speak as we do.

Of course, we didn't have to make such a choice. But we did. And except every now and then regarding some extremely unpleasant and unpopular speech, we have remained dedicated to the principle of virtually unabridged speech.

Now applying the foregoing to the Westboro Church. Danger to health? Safety? National security? Or anything else so compelling? Anything else sufficiently crucial to override our commitment to the freest possible speech? 

Remember, the Westboro Church members were expressing their views on public issues. Tolerance of homosexuality. The acceptance of gays and lesbians in military service. Pedophilia by Catholic clergy. And on religious issues. God's position on homosexuality. God's treatment of gays and lesbians in the afterlife. God's views and plans for America.

Do many of us think that the views expressed by the Westboro Church are despicable? Moronic? Ignorant? Vicious? Fill in the blank? And contribute not a whit to an understanding of public issues--whether civic or religious or anything else? Certainly, and overwhelmingly. At least I hope so.

But that is not the question. Not for a country constitutionally committed to free speech as the essence of a free society.

Rather, did Westboro Church present a danger--and a real, present one; not a remote possibility--to critical, compelling concerns such as health, safety, and national security? To ask the question is to answer it. No! There was no such danger. And that's the end of the question as far as constitutional free speech is concerned.

Free speech, that is. BUT, that's not the end of this case. There are other questions that must be considered in understanding the Court's decision. Actually, in understanding free speech cases and decisions generally.

In this case, as well as in many other free speech cases, what's involved is not exactly speech. Not pure speech. There's activity, conduct. Expressive to be sure. But something other than speech itself.

Also, there are consequences to speech, let alone to expression in the form of activity. Not just offending people or stirring emotions. But sometimes tangible consequences. While the speech may be free, the consequences might not be.

In any event, these and other matters will be explored in the next post which will continue our discussion of this absolutely fascinating and extremely important case.