Fred Phelps, the deranged pastor of the Westboro Baptist Church — which is more like a family entourage of psychos — has devised a scheme for getting attention: He desecrates military funerals. His group shows up chanting hateful slogans and carrying signs reading “God Hates Fags,” “Thank God for IEDs,” and “Thank God for Dead Soldiers.” They claim that these tragic deaths are divine punishment for social acceptance of homosexuality.
Albert Snyder, the father of a fallen Marine, sued Phelps for protesting his son’s funeral. He won millions. The Supreme Court overturned that verdict Wednesday.
I think the decision is a travesty. But, alas, after reading it, I also find it perfectly defensible, probably even correct. Anyone familiar with the concept of “garbage in, garbage out” can appreciate that this isn’t necessarily a contradiction.
The court had to deal with the narrow facts of this case, the relevant trial history, and precedents, and in doing so, they came out in a terrible place: in effect defending a “right” Phelps should not have. As Chief Justice John Roberts put it, “The reach of our opinion here is limited by the particular facts before us. . . . [We rely] on limited principles that sweep no more broadly than the appropriate context of the instant case.”
But you wouldn’t get the sense that this was a narrow, even shallow, victory for free-speech absolutists based on much of the commentary about it. Nearly all of it boils down to a single insight: Just because speech is offensive doesn’t mean we can ban it.
Making funeral protestors “shut up” is tempting, concedes the Detroit Free Press, but “anyone who values their freedom should understand why that’s just not the American way to deal with hateful, hurtful speech.”
The Supreme Court simply confirmed that “free speech has meaning only if objectionable speech is included,” insists USA Today.
These are fine expressions of general constitutional values shared by most of us. But they’re absolutely useless for figuring out how to treat speech in the real world.
For example, in its decision, the court upheld severe regulations on funeral protestors. Indeed, Snyder himself couldn’t make out Westboro’s signs or hear their chants at the funeral, because Maryland officials required the protests to be at least 1,000 feet away (though I’d be fine with making it 10,000 feet). It was only days later that Snyder saw on TV what the protesters were saying, or read on the Internet their vile personal attacks on his family.
Why don’t these restrictions offend free-speech absolutists?
Perhaps because, even though we like to mouth platitudes, we actually recognize that some speech is so vile, so beyond the pale, that we as a society understand that it might impinge on other things we hold dear — like the reasonable expectation that a parent might have to bury his child respectfully and in peace.
And that’s why Phelps’s tactics are the real issue, as Justice Samuel Alito’s compelling dissent makes clear. Westboro deliberately taunts the grieving family — tipping off the press in the process — because it knows such heartless cruelty counts for “news.” If the press grew bored with the protests, Westboro would likely invent a new tactic. Screaming obscenities at first-graders perhaps?
Nobody questions Phelps’s right to say what he wants to say — about anything. The question is whether funerals should be “no-free-speech zones,” as some absolutists put it.
Forty-three states already say, in effect, that yes, military funerals should be zones of relative decorum. What remains a mystery is why the other seven states haven’t followed suit.
Free expression and debate will continue to thrive in the United States even if we prohibit turning cemeteries into speakers’ corners and coffins into soapboxes.
Oh, but what about the terrifying prospect of a slippery slope that in short order will take us from banning the desecration and exploitation of funerals to an Orwellian society?
Stephen Wermiel, a professor at American University, warns, “If you start defining and banning offensive speech because someone doesn’t like it, it’s hard to draw the line, and one day you wake up and find you don’t have much protected speech.”
We draw lines all the time. It’s what serious, self-confident societies do. I would rather get the placement of the line wrong from time to time than live in a society that says there can be no lines.
Unfortunately, America is ensorcelled by categorical thinking. Some offensive speech is worthwhile, constructive, and necessary. Other offensive speech is reprehensible and indefensible. But, we are told, whether its garbage or gold, it has equal standing before the law. And that’s why so much garbage goes in — and so much comes out.
— Jonah Goldberg is editor-at-large of National Review Online and a visiting fellow at the American Enterprise Institute. © 2011 Tribune Media Services, Inc.