Friday, March 11, 2011

More Speech To Combat Hate Speech

My friend, Steve Rohde, wrote the following piece in the Los Angeles Daily Journal on the recent U.S. Supreme Court decision which upheld on First Amendment grounds the incredibly offensive actions by a true lunatic fringe -- the Westboro Baptist Church -- which protests at military funerals that God is punishing the United States for its tolerance of  homosexuality. 

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.”

[Read more after the break]

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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