Friday, March 12, 2010

Snyder vs. Phelps and the Price of Freedom

It was perhaps inevitable that America's third most relentless attention hogs (Hi, Glenn! Hi, Sarah!) should make their way back into the baleful glare of the national limelight.

This last week, the Supreme Court began consideration of a case against Westboro Baptist, that sad dark cult of intensive hatred that blights Topeka, Kansas and is misused to assail the entire reputation of Christian faith. One of the many families who lost a soldier-son in recent conflict filed suit against Phelps after his family engaged in one of their trademarked hate-fests outside of the young man's funeral. After an initial $5 million dollar verdict for inflicting emotional distress, an appellate court overturned the award. Now it has come before the highest court in the land.

The issue is freedom of speech. Phelps and his brood are justifiably despised by essentially everyone. Even the Fourth U.S. Circuit Court of Appeals, which ruled in favor of Phelps, described his activities as "highly offensive" and "repugnant." But the broader ruling asserted that the speech was "intended to spark debate about issues," and was therefore protected speech.

I can appreciate the intent of the Circuit Court argument, and think that ultimately it's necessary to permit even the speech of nasty pieces of work like Phelps if we take free speech seriously.

That said, I do wonder if the idea that this speech serves the cause of debate is know...true. Discussion and debate are not really things that the Phelps clan care a whit about. They are opening an exchange, sure. But they aren't opening a discussion or a debate. Not really.

Let's say I start a conversation with the phrase: "You are a worthless piece of ****, and you and your mother****ing piece of **** dead child can just **** my ****." That's not an invitation to have a discussion or a debate. It's an invitation for you to give me a little closed-fist dental work. What Phelps is doing is simply that, with a slight gloss of "religion." It's just being abusive and nasty-truculent.

That's not to say that plenty of folks aren't under the misconception that being cruel and hostile somehow constitutes debate. Tens of thousands of internet trolls seem to think precisely that. But while disagreement can get intense even within the bounds of normal political discussion, there is a point we reach when it ceases to be part of the dynamic tension of democracy. It's just screaming and tearing and brokenness.

Ah well. Maintaining even the freedom of those who have no respect for others is necessary for freedom itself to be maintained.


  1. I tend to disagree that all speech is free. This is an example of when it should not be free. I say this because one's freedom should not impinge on the freedoms of others. The Phelps display does just that along with other hateful displays.

  2. I would argue that what Phelps does falls under the heading of "hate speech." If someone held up signs that said, "Thank God for dead n*****s," they would be shut up in a heart beat. I don't see Westboro as doing something much different than that.

  3. I also feel that what Phelps is doing is profoundly hateful. The challenge, as I see it, comes when you start defining what does and does not constitute impermissible hate speech.

    Take, for instance, the recent "smut for smut" campaign. As a symbolic action, it is provocative and intended to be offensive/insulting to a particular group. It is motivated by a profound dislike of that group. Is that "hate speech?" Should it be illegal?

    What about pro-life demonstrators who declare that their opponents are murderers, and hold images that many might typify as disturbing and in violation of community norms? Are they engaged in hate speech? Should their demonstrations be prohibited?

    Once those boundaries get higher, it becomes a tricky wicket.

  4. The smut for smut campaign and the pro-life protests wouldn't be hate speech because they do not prevent people from exercising their freedoms. For example, if the pro-life protesters attacked or prevented patients from entering an abortion clinic, that would cross the line. Or speech that incites people to violently attack another group or promotes harassment of a particular group. It might be hard to define at this point but it needs work. In this case it's an invasion of privacy. The family and friends were not able to privately mourn their loss because a bunch of jackasses were disturbing them. I have a feeling hate speech will be defined by subsequent court cases. And depending on the decisions of the juries that could be a crapshoot. XD

  5. How do we determine when and where someone has crossed the line? When someone drives up my street at 3 AM and my house shakes because their car is essentially a large boom box and along with the bass shaking my house the f bomb is dropped every few lines. Is this illegal speech?

    (Showing my age) If I used any words that my parents believed were unacceptable, even if I was a couple blocks away (Mom had a full network of other moms who watched us and reported us) I was in big trouble at home and the taste of soap would soon be in my mouth. So about when younger folk drop the f bomb walking down the street? Or wear shirts that are intentionally offensive? Or when a group teases someone with downs syndrome?

    The biggest problem I see with this case is that the hate speech is shouted outside. Once you walk out the door you are at the mercy of the mouths of those around you. Simply being in a cemetery does not guarantee that those praying at the grave site are not going to hear words that simply do not belong at a graveside service.

    Robert Heinlein says the first sign of a dying society is the loss of politeness. If he is right we are in big trouble.

  6. There's a difference between speech that is disliked, rude, and offensive and speech that incites hate, particularly against a minority. Who knows, this may seem instinctual to me but a foreign language to others.

  7. Pastor Bob alludes to it, but this case has more to do with property rights than with free speech. If the piece of land on which the Phelps group demonstrated was privately owned and its owner had enforced his property rights, then their hateful speech would have been precluded by their criminal trespass.

    Of course, if the owner permitted hateful speech in close proximity to such solemn services, then there is little recourse. Noise over X-number of decibels can cause physical harm and should constitute assault, but suffering emotional harm is a matter of internal response, rather than external stimulus. We must choose whether to take offense at what others say; our emotional mindset notwithstanding.

  8. A lot of commentary on this case has glossed over what it is actually about. It is not a case about whether Phelps and his demented crew can spew their vile messages. Rather, it's about the consequences of them doing so.

    The plaintiff is claiming intentional infliction of emotional distress after they picketed his son's funeral. The Jerry Falwell case carves out an exception for free speech when a public figure claims emotional distress, but there's no reason to think that a random soldier being buried is a public figure. (I suppose the only question is whether you can say that the demonstration was intended as a political statement rather than intended to distress the plaintiff.)

    So, while I'm fairly absolutist when it comes to free speech, I see this as a case where you're free to swing your arm around all you want, but that freedom ends when it hits somebody in the face.

  9. To my knowledge, harassment is not protected by free speech and what Phelps did was harassment, pure and simple. Good luck to the Snyders in this case; Phelps should count himself lucky that he's not facing criminal charges.