My Nuanced Error

by Jonah Goldberg

In the comment section of my post below,  Commenter Joe K. offers an intelligent and fair-minded criticism of my stance.  He writes in part:

Jonah, your nuanced error in constitutional interpretation is that the “speech” isn’t being regulated by the Maryland law to stay back 1000 ft. It is a content-neutral regulation of the time, place, and manner of the speech. Thus, it applies equally to a guy with a “God Hates Soldiers” sign and a guy with a “God Bless the U.S.A.” sign. It is this content-neutral aspect that makes the regulation constitutionally acceptable.

The real issue in this case (where the majority and Alito differed) was whether the speech at hand was of public concern or merely a somewhat veiled personal attack. Political statements are of public concern and receive the highest protection under the 1st amendment. Speech on private concerns (think slander/defamation) receive less protection because their regulation does not chill the open discussion needed for self-government.

Thus, Alito is correct that the tort of intentional infliction of emotional distress (like slander or defamation) could be fulfilled by speech if that speech is of private concern. However, I tend to agree with the majority that the main thrust of the speech here was of public concern. I would err on the side of free speech protection as it is a close call in these circumstances. I only hope it doesn’t set the precedent for veiling personal attacks of private concern with some feigned attempt at speaking to a public concern as cover (but I think the Breyer concurrence effectively covers this).

I agree that I have erred in not addressing this distinction, but I’m not sure it’s quite the error Joe makes it out to be. The regulation that protesters must stay back 1,000 feet from funerals is indeed content neutral. But no one would have come up with such restrictions were it not for the incandescent asininity of the Westboro posse. In this sense it is regulation of Westboro’s speech insofar as no other group on the right or the left would be so stupid, deranged or evil to heckle a funeral in this manner.

Anatole France once said (sarcastically) “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” A similar principle applies here. These laws forbid the Shriners, the Knights of Columbus and the Teamsters  from harassing private funerals, but such groups don’t care because they would never exercise such a right. These laws have a disparate impact on insane a–holes because only insane a—holes would do what Westboro does. As I suggested in my column, Westboro’s tactics are hard to separate from their speech.

Now there may come a day when some legitimate group is denied a similar opportunity to desecrate a private funeral for a fallen soldier, and I suppose it’s possible to imagine they’d have a “good” reason to do something like that (though I don’t know what it would be). And if that’s the case, I will sleep just fine because life in a decent and free society is full of small compromises, including the loss of the liberty to harass grieving families when they try to bury their dead.