Monday, April 28, 2008

Freedom for the speech we hate

A lot of people aren't gonna like this one, Spotty.

Nevertheless, grasshopper.

From the Topeka Capital-Journal:

A federal judge in Maryland on Thursday ordered liens on the Westboro Baptist Church building and the Phelps-Chartered Law office.

If the case presided over by U.S. District Court Judge Richard D. Bennett is upheld by an appeals court, the church, at 3701 S.W. 12th, and the office building, at 1414 S.W. Topeka Blvd., could be obtained by the court and sold, with the proceeds being applied toward $5 million in damages Bennett imposed on church members for picketing a military funeral.

You all remember Fred Phelps and his merry band, don't you? The people who brought gay-bashing to a new low by picketing military funerals on the theory - which quite eludes Spot, frankly - that the tolerant attitude toward gays in the United States is getting our soldiers killed in Iraq. Pat Robertson says that gays attract hurricanes, which makes so much more sense. You can read more about the man in the white hat here.

Phelps and his church came to national attention when they picketed the funeral of Matthew Shepard, a gay student at the University of Wyoming who was killed by a couple of homophobes that he met in a bar.

If you read the comments to the Capital-Journal article linked above, you will see that the commenters almost uniformly expressed satisfaction, perhaps even glee, that Phelps & Co. may take it in the shorts. There is certainly a part of Spot that feels that way.

However. Banning hate speech is a dubious proposition, and a dangerous one for the civil libertarian.

The leading case in this area is still Brandenburg v. Ohio, decided by the Supreme Court in 1969. In that case, a unanimous court reversed the conviction of a Ku Klux Klan member who was tried and convicted for saying:

I believe the nigger should be returned to Africa, and the Jew returned to Israel.

But Spotty, that was a criminal case. Here, the father of a dead soldier got a judgment for the intentional inflection of mental distress, no conviction was involved!

Good observation, grasshopper, but the First Amendment will protect the speech either way. Do you remember discussing N.Y. Times v. Sullivan with Spot before?

Isn't that the case where a city official in Alabama sued the New York Times for libel and won a judgment because some of the things in an ad taken out by civil rights groups had some factual errors in them? And the official claimed that it damaged his reputation?

Yes, and?

The Supreme Court ruled unanimously that Alabama libel law unconstitutionally infringed freedom of speech because the prospect of a large award by a Southern jury against a newspaper would chill the newspaper's discussion of the conduct of public officials?

That's right. The Court held that a libel plaintiff, if he was a public official, would have to show that the newspaper acted maliciously. Parenthetically, boys and girls, Times against Sullivan is one of the very important reasons why Martin Luther King's non-violent civil disobedience could be so effective. Northern media could show Southern blacks being attacked with fire hoses, dogs, and clubs without fear of reprisal. The Civil Rights of 1964 and the Voting Right Act of 1965 are part of the legacy of the courageous reporting of the New York Times and Times against Sullivan.

But Spot digresses. What did the Supreme Court do in the Times case?

It placed limits on the reach of state tort law in order to protect free speech.

You are so smart sometimes, grasshopper, that it just takes Spot's breath away. A similar result might be expected here, saving Fred Phelps' unworthy bacon. It certainly isn't clear to Spot that Phelps & Co. were trespassing or otherwise disturbing the peace in the sense of creating an immediate incitement to violence, other than maybe by the counter-protesters, which doesn't really count.

We have to put up with a lot in the name of free speech in this country. In a lot of places, being a Holocaust denier can land you in prison. But we tolerate that, and, so far, we also protect the burning of Old Glory as symbolic protest speech.

What do you think, boys and girls? Should mangy ol' Fred have to disgorge everything because he says stupid and unpopular things?

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