Re: Snyder v. Phelps

by Jonah Goldberg

Michael – You say you’re “mystified” by the reaction to your column. I’m mystified about something myself.

As I noted in my column, the Court strongly suggested in its ruling that it has no principled objection to local jurisdictions regulating the dickens out of Phelps’ speech. Forty three states make it very difficult for Westboro to do what they do at funerals. Do you have a problem with that? I don’t.

What I find so weird is how so many people are taking this decision as a straightforward, unambiguous “victory” for free speech when the truth is more far ambiguous (Perhaps a better way to think of this is that they didn’t so much uphold Westboro’s speech rights as they narrowly negated Snyder’s claim to financial damages). For instance you write: “The Snyder v. Phelps and Citizens United decisions both make the same point: The government simply has no business regulating political speech, no matter whose ox is gored.”

First of all, Citizens United is a very different case altogether. It overturned heavy-handed regulation and censorship of mainstream political speech during elections. The Obama administration even argued that the government could ban certain books under McCain-Feingold.

Meanwhile, Westboro’s “speech” is a very different thing aimed at a very different purpose.

But, more to the point, that speech is being regulated (thank goodness) and everyone — including you I suspect– is fine with it! 

If it wasn’t being regulated, the Westboro thugs could have been a lot closer to the funeral. Albert Snyder would have heard their chants and catcalls. He would have seen their signs reading “thank God for dead soldiers.” Again: Are you opposed to those regulations?

I’m not. I think they should be stricter, a lot stricter.

Funerals are, by definition, a one-time event. And funerals for private citizens (as opposed to public ones) seem like a perfectly reasonable thing to put off limits to political mayhem and deranged theater. I heard Tom Brokaw the other morning suggesting that people should counter-protest to drown-out Westboro wherever they go. Good and decent people already do that, as best they can. But ultimately that advice is borderline asinine if intended as actual public policy. Private citizens, never mind the families of servicemen who died for their country, deserve every right to bury their loved ones in peace. Saying, oh we can defeat the scumbags trying to ruin these funerals by making them in even bigger circuses is not an acceptable answer.

Yes, yes, the founding father’s never specified the right to bury your dead in peace, because it never dawned on them they’d have to. But it is obviously a right nonetheless. Indeed, if you desecrated a soldier’s funeral in George Washington’s day in anything like the manner of the Westboro crowd, either a beating or a duel would be in the offing. Some speech does amount to fighting words.

Taken literally, all of you folks unequivocally celebrating this decision should condemn any restrictions at all on Westboro’s odious actions. Again, I doubt that’s your position (or the position of the New York Post, the Wall Street Journal et al).  But instead of saying so, we’re treated to this chest beating about how wonderful it is that we let even groups like Westboro do their thing…when we don’t and we shouldn’t.


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