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Once again, people who believe in “free speech for me but not for thee,” are outraged by a U.S. Supreme Court decision upholding the right of Americans to spew venom that offends anyone with a sense of decency. In this case, by an 8-1 majority–a rare example of agreement between the conservative and liberal blocs on the high court–the justices upheld the right of the Westboro Baptist Church to picket near funerals of soldiers killed in Iraq and Afghanistan. The Westboro hatemongers (most of whom seem to belong to one obsessive extended family) think that the deaths of American soldiers represent God’s punishment on the nation for tolerating homosexuality.
Snyder v. Phelps is not, as some commentators have mistakenly implied and inferred, a First Amendment religious freedom case. It is a pure freedom of speech case. (Whether a church that seems to consist mainly of the relatives of one man, Fred Phelps, ought to be tax exempt is another issue. It is worth noting that this “Baptist church” is not a member of any official Baptist convention.) These godly folks from Topeka, Kan. (yes, the same state where a doctor who performed abortions was murdered) carry signs reading “God Hates Fags” and “Pray for More Dead Soldiers” near military funerals. The demonstrators take care to stand at whatever legal distance is required by city ordinances. There is no doubt that such behavior further wounds grieving relatives but the court majority rightly decided that Americans do not have the right to be protected from hurt feelings or even from the deepest emotional wounds that can be inflicted by repulsive speech.
Unlike Europe, the United States has no laws against “hate speech” unless it directly incites a crime. You cannot prosecute anyone for saying that gays, or Jews, or African-Americans, take your pick, are subhumans. You can only prosecute if the speaker says, “These people across the street are subhuman and you should kill them now.” Many European countries do have laws against speech and publications considered offensive by a wide variety of groups.
In the United Kingdom, where broad libel laws make it ridiculously easy for public figures to charge authors with libel, Holocaust deniers can take the historian Deborah Lipstadt to court for exposing them. In France, the foul-mouthed designer John Galliano faces charges of verbal harassment following an anti-Semitic tirade against a couple in a restaurant. Is France more free of racial or ethnic prejudice than the U.S. because it has laws making racial/ethnic insults a crime? Does the United Kingdom have better scholarship because a serious historian can be taken to court after expressing opinions and drawing conclusions the plaintiff does not like?
The “free speech for me but not for thee” people always have a rationale for banning some form of speech that they find particularly offensive. The American Civil Liberties Union lost 30,000 members in the late 1970s because it defended the right of the American Nazi Party to hold a march in Skokie, Ill., a community with a heavy concentration of Holocaust survivors. The ACLU won the case. The American Nazis never actually marched, but the ACLU was absolutely right in its stance.
Similar issues were raised by feminists about pornography in the late 1970s, and I lost a number of friends in the movement (who called me a free-speech junkie then) because I opposed the desire of some feminists to criminalize pornography. The point I made then in a column in The New York Times, “Notes from a Free Speech Junkie” (one of the most widely anthologized pieces I have written), was that non-feminists (such as spokesmen for conservative religions) who wanted to censor pornography were frequently the same people who also wanted to censor feminist writing about women’s health and women’s bodies. They considered the very word “vagina” an obscenity. There is no way of censoring one kind of speech without opening every other kind of speech to censorship.
Attorney Rob Boston makes an important point about Snyder v. Phelps this week in “The Wall of Separation,” the official blog of Americans United for Separation of Church and State. He notes that the recent decision vitiates the argument of the religious right that liberals want to pass “hate speech” laws to silence right-wing Christians. “To hear them tell it,” Boston writes, “‘hate speech’ laws are just around the corner, and Pastor Bob is only one step away from being tossed in the hoosegow if he dares to read from the Book of Leviticus in the pulpit.”
Another salutary effect of allowing vicious people like the Westboro group to speak is that they reveal exactly who they are and what they stand for. When these people insult mourners at funerals–as Galliano insulted a woman he thought was Jewish in a Parisian bar–they show the naked face of bigotry. That is a face worth seeing without polite disguises that many bigots assume in society. It is also a face worth seeing without the cloak of anonymity that the Internet provides for bloggers spreading hate.
No society has ever been better off because speech, as distinct from criminal conduct, was restricted. And there is no such thing as a First Amendment junkie. You cannot overdose on free speech, because free speech is its own best antidote.