The Supreme Court this week heard a case which raises the issue of possible limits to the freedom of speech in the sharpest possible way. I had not been aware of this case until I first read about it last week in the October 1 issue of The Washington Post (a newspaper I don’t normally read, but the hotel I was staying in there had nothing else I could read at breakfast). Since then the story has been all over the media. But I cannot assume that the readers of this blog are as interested as I am in the nuttier corners of the American religious scene, so I will summarize the story before I make some observations of my own.There is a small Baptist church (I regret to say, in Kansas) which has in its enlightened theological repertoire the belief that God is punishing America for its sins, notably for tolerating homosexuality. God caused 9/11, Katrina and the oil spill in the Gulf of Mexico, and every soldier killed in Afghanistan is part of God’s punishment. It is noteworthy that Westboro Baptist Church only has about seventy members, most of them belonging to the extended family of its pastor, the Reverend Fred W. Phelps. Westboro is about the size of the church in Florida which recently caused an international crisis by threatening to burn the Koran in a public ceremony. Our media age enables a handful of people to get enormous attention if they have the imagination to do something truly outrageous. The Phelps clan has indeed been imaginative.As part of a campaign to warn the nation about God’s wrath, Westboro congregants have been demonstrating at funerals of soldiers killed in battle. Within sight of the mourners they held up signs with such messages as “Thank God for 9/11,” “Thank God for dead soldiers,” “God killed your sons.” They did this at the funeral, in 2006 in a little town in Maryland, of Matthew Snyder, a twenty-year old Marine killed in Afghanistan. His father, Albert Snyder, sued the Westboro church for invasion of privacy. A Baltimore jury ruled that the church had to pay Snyder ten million dollars for invasion of privacy and intentionally inflicting emotional distress, an amount which the judge cut in half. Then a three-judge panel of the U.S. Court of Appeals for the 4th Circuit in Richmond overturned the Baltimore judgment. It called the protest at the funeral “distasteful and repugnant” but nevertheless ruled it protected under the First Amendment as “imaginative and hyperbolic rhetoric.”Margie Phelps, a daughter of the pastor and a lawyer who is defending the church before the Supreme Court, called the case “the ultimate litmus test” for the constitutional protection of free speech. It is that indeed. One is reminded of the famous case in which a group of neo-Nazis won the right to hold a march in Skokie, Illinois, many of whose residents were Holocaust survivors. A handful of individuals sporting swastikas were protected by a massive police presence against a very large crowd of protestors—a sort of icon of America’s belief in free speech, even thoroughly repulsive speech. Yet the Skokie case was different: it offended a community, but it did not directly impinge on the grief of a family; privacy was not an issue then. And of course the offence was not the result of religious belief.Margie Phelps evidently shares the beliefs of her father and has made no bones about it in her public statements. But of course she is not defending the church before the Court in theological terms, but rather by solemnly invoking the sanctity of the First Amendment. This rhetoric seems rather odd, coming from someone who believes that America is cursed by God. It reminds one of similar rhetoric used by leftists who believe that the legal system is a tool of capitalist oppression. Ms. Phelps’ father is under no legalistic constraints in stating his theological angle on the case: “If we’re saying that God is mad at the country and he’s killing kids on account of it, then what’s more appropriate as a forum to preach than at the funeral of one of these dead soldiers that God has just killed?” Walter Dellinger, one of the lawyers on Snyder’s side, argued in his brief that the Phelpses have a right to free speech, but not to “hijack [a] private funeral as a vehicle for expression of their own hate.” Snyder is supported by a broad bipartisan group in Congress and by the attorneys general of forty-eight states and the District of Columbia. The Phelpses are supported by a group of constitutional scholars and media organizations (who of course dissociated themselves from the “vile” and “repulsive” views of the defendants). Snyder understandably has been less judicious in his comments: “It [the alleged right of the Phelpses] is an insult to every American who has died for the freedom of speech. No one in the history of the nation has ever protested like this. Don’t tell me that my son died for that.”I am told that incoming students in law schools are told that the law has little to do with justice. I tend to agree. I have little faith in the wisdom of the nine individuals who, draped in sacerdotal garments and sitting in a building resembling a Greek temple, deliver oracles as the high priests of our political religion. Still, over time something like justice has, from time to time, come out of the creaky machinery of the law. I have no idea how the Court will rule on this. I have no doubt what ruling would be just: freedom of speech cannot include the right to spit on people at the most poignant moment of their grief. I suspect that our high priests would agree, if they were only to step out for once from the esoteric logic of their profession. If nothing else, lawyers are ingenious in finding new angles to that logic. I hope that a majority of the justices will exercise such ingenuity.Beyond the particular case in question, I was moved once again to reflect about the law as an institution. We are supposed to speak with awe about “the rule of law” as if there were something peculiarly sacred about this arm of government—as against, say, the Bureau of the Census or the Post Office. This supposition is very strong in the United States, where we are enjoined to be proud of being a “nation of laws, not of men.” We certainly are. Americans sue each other at the drop of a hat and generally acquiesce in the intrusion of law into areas that previously were left to the conventions of civil society. I am not sure where this comes from. It may be the long shadow of the Puritans and their Calvinist legalism. Or it may be the cultural memory of a frontier society where the sheriff was the only guarantor of minimal civility. Be this as it may, I think that imbuing the law and its representatives with the aura of sanctity is misguided, especially in a democracy. The law is at its core a set of abstractions, ritually imposed on the living reality of “a nation of men.” What is more, the “men” in the formula find it very convenient to hide behind the “laws” and thus to avoid personal responsibility for their actions— “this is not me saying this, but me as the voice of the law.”When I was a graduate student at the New School for Social Research in New York, some of us liked to hang out at a bar on 14th Street called the “Oviedo.” It was owned by a Spanish anarchist, a refugee from the civil war. In the men’s room he had put up an inscription “Muerte a Franco.” with which one could implicitly agree as one urinated under it. Once he put his arm around me, approving something that I had said (I cannot remember what it was), and made an assertion that I found immediately plausible: “Deep down, all decent men are anarchists.” I was never on the left, even then, and for many years now I have defined myself as a conservative (on the moderate side). But, “deep down” as he said, I still agree with the owner of the “Oviedo” who asked his customers to piss on Franco. The law is not something to stand in awe of. It is a lesser evil—better than chaos or tyranny. Once in a while its ponderous machinery comes out with something that one can rejoice in—as when the Supreme Court outlawed racial segregation. Such occasions are rather rare.In this particular case, one can sympathize with the reluctance to impose any further limits to the freedom of speech—such as exempting funerals from the exercise of this freedom. In the nature of the legal process, the judges will ponder and decide the case on abstract grounds as befits “a nation of laws.” In the far from abstract reality of the “nation of men,” Mr. Snyder has a right to be protected in his grief from the hateful assault of religious fanatics.
Published on: October 12, 2010Another Limit to Freedom of Speech