Miriel M. Thomas
Earlier this month, the Supreme Court decided Snyder v. Phelps, a case involving the Westboro Baptist Church’s demonstrations in conjunction with the funeral of a Marine killed in the line of duty in Iraq. Eight to one, the Court ruled that the First Amendment immunizes Westboro from tort liability for the emotional distress it inflicted on the fallen serviceman’s father. The decision is probably technically correct, but its implications for the future of American freedom are grim.
Chief Justice Roberts’ majority opinion states the facts of the case and the legal principles at hand very simply. Phelps and the other members of his “church” conducted their demonstration on public property and in compliance with all law enforcement instructions. The “overall thrust” of Westboro’s message related to matters of public concern. Such speech, in spite of—or perhaps because of—its crude and offensive character, is protected at the heart of the First Amendment. Case closed.
From the perspective of First Amendment jurisprudence, the decision appears to be correct. If the opinion has a weak link from a legal standpoint, it’s the “overall thrust” argument; some of the signs held by WBC members could reasonably be interpreted to refer directly to Snyder rather than to questions of public concern. As Justice Alito points out in his dissent, “I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected.”
That’s a fair point, and one that the Court may need to clarify in the future. But if the Court has delineated the facts of the case correctly, the core holding of Snyder v. Phelps is pretty solidly grounded in precedent and will likely stand in perpetuity. The decision has elicited accolades from scholars and lawyers across the full breadth of the political spectrum; apparently combining homophobia with anti-Americanism and hatred of the Catholic Church is the key to getting everyone from the ACLU to the Tea Party to stand behind your right to free speech. Christians—real ones, the ones who don’t think “God hates gays”—generally endorse the decision because they see all too clearly how quickly a Court that could silence Westboro would silence them as well. It’s a slippery slope, that.
And yet…and yet… The idea that a grizzled old man and a few of his descendants can stage a public demonstration with the express intention of celebrating the death of a young man who gave his life in the service of this country, that they can hold signs bearing phrases like “Thank God for Dead Soldiers” and “You’re Going to Hell” (these are some of the least offensive of Westboro’s delightful thoughts), and that a media broadcast covering their demonstration can bring that message into the home of the fallen Marine’s father on the day of his son’s funeral and traumatize him—I can’t make it sit right with me. It just seems wrong.
Now, I have been sufficiently schooled in the principle of noncontradiction to know that there are only a few options here. Let’s review, shall we?
Option one: The majority erred in classifying Westboro’s speech as strictly relating to matters of public concern, Justice Alito is right, and the holding actually is wrong.
Option two: The holding, however unsettling, is exactly correct, and I just need to deal with it. (In the words of the immortal Andrew Shepherd, “America isn’t easy. America is advanced citizenship—you’ve got to want it bad.”)
Only one of those two options can be correct. But then we have the concurrent options:
Option three: whatever the legal situation of WBC, the real problem here is the media. If every news outlet in the country ignored Westboro’s antics, nobody would pay attention to their demonstrations and they would fade into oblivion. (I find this option somewhat compelling. Obviously. That’s why I’m writing about it.)
Option four: there are bigger questions in play here than the Supreme Court’s holding about the constitutional protection accorded to one particular instance of outrageous speech. Correct or incorrect from a legal perspective, the holding in Snyder v. Phelps is a bellwether for the decline of cohesive culture and the onward march of the dictatorship of relativism in America.
The majority opinion in this case, and the broad public support for it, rests on a basic principle that goes something like this: “Here in America, we value the freedom of speech and robust public debate about important issues. In order to safeguard that freedom and foster that debate, we must guarantee the right of every person to express his views on any issue of public concern. And the right to speak freely must extend even to those whose ideas are unpopular or controversial.” So far so good, right?
Enter Hadley Arkes: the problematic precedent here is Cohen v. California, the notorious 1971 case concerning a young man who wore a jacket clearly bearing the words “F___ the Draft” into a municipal courthouse and was arrested for violation of state indecency law. In the majority opinion determining that Cohen’s jacket constituted protected speech, Justice John Harlan wrote the lines that enshrined logical positivism into First Amendment jurisprudence, thereby making it forever unworkable:
Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to even the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm [Cohen’s conviction]. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. (403 U.S. at 25)
This makes no sense at all. Without relying on the common-use interpretation of Cohen’s words, Arkes astutely observes, Harlan could not have definitively identified “F___ the Draft” as expressing scorn for conscription; it could just as easily have meant “make love to the wind.” In order to determine that Cohen’s speech was political and therefore protected, Harlan had to acknowledge, albeit sub silentio, that common use imbues words with particular significations denoting value—a conclusion that his trash-and-treasure argument explicitly contradicts.
From a logical perspective, you cannot hold both halves of Harlan’s argument at the same time. And the truth is that the second half of it is simply incorrect. We may not agree, in the weeds, on the value of any specific word—and, much more to the point, we may prefer that nine unelected men not be granted the ultimate power to decide that question—but the idea that there is no way to determine which words are inherently offensive and which ones are not is just nutty. Here’s Arkes, with apologies to my grandmother: “Kike, bastard, nigger, faggot, meter maid, urologist, hero. People in Washington may stop for a while at “meter maid,” but they have no trouble in recognizing the terms clearly established as terms of insult.” His common-sense solution for the unclear cases? “If the words are less clear or at the borderline of derision, just hold back from convicting.” So, you know. That could work.
This is half of it: that we’re perpetuating a logically incoherent free speech jurisprudence. The other half speaks to culture and civilization more broadly. The spectre of linguistic relativism and its corresponding protection of the freedom-to-offend as the liberty-lover’s summum bonum leads us inevitably and without hesitation to (I feel like there should be trumpets here) Wendell Berry. This is from “Sex, Economy, Freedom, and Community”:
The often-cited “freedom to be wrong” is thus a valid freedom, but it is a poor thing by itself; its validity comes from the recognition that error is real, identifiable as such, dangerous to freedom as to much else, and controvertible. The freedom to be wrong is valid, in other words, because it is the unexcisable other half of the freedom to be right. If freedom is understood as merely the privilege of the unconcerned and uncommitted to muddle about in error, then freedom will certainly destroy itself.
Bingo. Truth exists. So, as Berry points out, do other people:
Freedom defined strictly as individual freedom tends to see itself as an escape from the constraints of community life—constraints necessarily implied by consideration for the nature of a place; by consideration for the needs and feelings of neighbors; by kindness to strangers; by respect for the privacy, dignity, and propriety of individual lives; by affection for a place, its people, and its nonhuman creatures; and by a duty to teach the young.
So the problem here is not simply a linguistic/semiotic/logical one; it is a moral and ontological one. Liberty does not exist in a vacuum; real freedom only exists within the context of real life, in the real world, where there is truth and falsity and where we have families and neighbors and friends. The living out of our freedom requires us to recognize the demands of those people and those ultimate realities. Moreover, and more importantly, the existence of truth and the responsibility of human persons toward one another are not simply the boundaries circumscribing the exercise of personal freedom; they are the foundation and context and precondition of that freedom.
And this, at the end of the day, is the problem with Snyder v. Phelps. Fred Phelps and his clan set out, intentionally, to fly in the face of the demands that our dignity make on the way civilized people interact with one another—and then they seek the shelter of the rules of a civilized society to stand between them and the damage their words and actions have done, and get it. They are, in Berry’s sublime phrase, “writing a check on moral capital to which they do not contribute.” To the degree that we protect and even celebrate this kind of behavior, we are encouraging and perpetuating it. And—all indications contained within the federal budget to the contrary notwithstanding—we can only run deficits for so long.