The Best Antidote to Hate Speech Is More Speech
by Stephen F. Rohde, March 9, 2011
Many of the U.S. Supreme Court’s most important decisions upholding free speech involve the most hateful speech imaginable, testing our national commitment to the First Amendment.
Five years ago, in their hometown of Westminster, Md., Albert Snyder attended the funeral of his son Lance Cpl. Matthew A. Snyder, who was killed in Iraq.
About 1,000 feet away on public property, members of the Westboro Baptist Church of Topeka, Kan., founded by Fred Phelps in 1955, conducted a non-violent protest carrying signs bearing messages like “America is Doomed,” “God Hates the USA/Thank God for 9/11,” “Don’t Pray for the USA,” “Thank Godfor IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You’re Going to Hell,” “God Hates You” and “God Hates Fags.” The protesters sang hymns and recited Bible verses.
Snyder could see the tops of the signs as he drove to the funeral but did not see what was written on them until later that night, while watching a news broadcast covering the event.
Westboro and Phelps preach that God is punishing the United States for its tolerance of homosexuality, and in the last 20 years have picketed nearly 600 funerals.
Snyder sued the protesters for, among other things, the intentional infliction of emotional distress, and won an $11 million jury award that was later overturned by an appellate court.
On March 2, speaking for an eight-member majority, Chief Justice John G. Roberts Jr. wrote that “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.” Snyder v. Phelps, 2011 DJDAR 3307. But under the First Amendment, he went on, “we cannot react to that pain by punishing the speaker.” Instead, the national commitment to free speech requires protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.”
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Invoking classic language from previous free speech cases, Roberts wrote that “Debate on public issues should be robust, uninhibited and wide-open,” because “speech on public issues occupies the highest rung of the hierarchy of First Amendment values.” He pointed to the decision that freed protesters who burned the American flag and another that protected a Hustler magazine satirist who portrayed the Rev. Jerry Falwell in an outhouse. Last year, Roberts spoke for the court in striking down on free-speech grounds a law that made it crime to sell videos of illegal dog-fighting.
The “bedrock principle underlying the First Amendment,” Roberts said in quoting the flag-burning ruling by the late Justice William J. Brennan Jr., is that the government cannot punish words or ideas “simply because society finds the idea itself offensive or disagreeable.”
The Supreme Court ruled that although the messages on Westboro’s signs “may fall short of refined social or political commentary,” nevertheless “the issues they highlight — the political and moral conduct of the United States and its citizens, the fate of our nation, homosexuality in the military and scandals involving the Catholic clergy — are matters of public import.”
“Any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed,” Roberts wrote, “rather than any interference with the funeral itself.” Consequently, the protesters’ speech “cannot be restricted simply because it is upsetting or arouses contempt.”
The Court acknowledged that “Westboro’s choice added to Mr. Snyder’s already incalculable grief.” And while “Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible,” Roberts concluded that “Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials.”
The Reporters Committee for Freedom of the Press and 21 news organizations filed a brief supporting the church. “To silence a fringe messenger because of the distastefulness of the message,” the brief said, “is antithetical to the First Amendment’s most basic precepts.”
The lone dissenter, Justice Samuel A. Alito Jr., filed a fiery opinion comparing the protest to fighting words, which are not protected by the First Amendment. “Our profound national commitment to free and open debate,” Alito wrote, “is not a license for the vicious verbal assault that occurred in this case.” He noted that Snyder was “not a public figure” who could be expected to tolerate such an onslaught, but a private person who sought to “bury his son in peace.”
Alito wrote that Westboro may speak out in many ways in many places, and should not be allowed to capitalize on the private grief of others. “In order to have a society in which public issues can be openly and vigorously debated,” he wrote, “it is not necessary to allow the brutalization of innocent victims.”
The Westboro decision will remind many of the famous case upholding the rights of Nazis to march in Skokie Ill., the home to a large Jewish community, including many Holocaust survivors. In 1978, after noting that the beliefs and goals of the American Nazi Party were “repugnant to the core values held generally by residents of this country, and, indeed, to much of what we cherish in civilization,” a federal court of appeals held that it is “in part the fact that our constitutional system protects minorities unpopular at a particular time or place from governmental harassment and intimidation, that distinguishes life in this country from life under the Third Reich.” Collin v Smith, 578 F.2d 1197 (7th Cir. 1978).
The court in Collin observed that the Nazis “know full well that, in light of their views and the historical associations they would bring with them to Skokie, many people would find their demonstration extremely mentally and emotionally disturbing.” But the court held that above all else, “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship.”
While the city of Skokie pointed to the risk of inflicting “psychic trauma on resident holocaust survivors and other Jewish residents,” the court responded that historically the First Amendment has protected precisely speech that “invite(s) dispute...induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”
“The result we have reached is dictated by the fundamental proposition that if these civil rights are to remain vital for all, they must protect not only those society deems acceptable, but also those whose ideas it quite justifiably rejects and despises.”
Our Nation’s deep commitment to the First Amendment does not come without its costs. Free speech is hardly free. As Jews in Skokie and Albert Snyder at his son’s funeral, as those appalled to see protesters burn the American flag and those deeply offended by videos of illegal dog-fighting or Internet pornography, have all experienced — for the sake of ensuring the most open, robust debate possible on the widest range of ideas, the Constitution asks the people to occasionally accept the pain, the anger and the offense caused by such speech.
Yet we are not powerless in the face of hateful and offensive speech. We remain free to exercise our own freedom of speech to openly and forcefully condemn the racism of the Nazis, the homophobia of Westboro Baptist Church and the ideas of all those with whom we disagree.
The enduring lesson of important cases like Snyder is best expressed by Aryeh Neier, who escaped Nazi Germany as a child and served as executive director of the Americans Civil Liberties Union during the Skokie controversy: “Freedom of speech itself serves as the best antidote to the poisonous doctrines of those who try to promote hate.”
Stephen Rohde, a partner with the firm of Rohde & Victoroff, is Chair of the ACLU Foundation of Southern California and author of American Words of Freedom and Freedom of Assembly.
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