It is with both relief and anguish that I note the Supreme Court’s decision today in the free speech case involving Westboro Baptist Church.
“Speech is powerful,” Chief Justice John G. Roberts Jr. wrote for the majority. “It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.”
But under the First Amendment, he went on, “we cannot react to that pain by punishing the speaker.” Instead, the national commitment to free speech, he said, requires protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.”
I agree, as did every major media organization in the country.
There’s no question that the members of Westboro Baptist Church (infamous for their “God Hates Fags” campaign and their penchant for vulgar, cruel protests at military funerals) hold views that are repugnant to virtually everyone outside of their tiny community. But it is also true that the First Amendment exists to protect deeply unpopular speech. In affirming Westboro’s right to protest today, the Supremes affirmed the rights of all of us who at one time or another feel called to express a view that others may find repulsive or appalling.
As a feminist who writes about sexuality and gender justice, I know the damage that hateful words and images can do. But I also believe that invariably and without exception, using the power of the state to ban those words and images compounds rather than heals the damage. It is why I continue to be a card-carrying member of the American Civil Liberties Union, and why I stand in reluctant solidarity with those who defend the right of the Klan and the Nazis to march. Though I know that “slippery slope” is a logical fallacy, it is not unreasonable to be vigilant about protecting the free speech rights of those whom we find repugnant. It is not unreasonable to suggest that a law that could be used against Westboro could quickly be used against those of us who advocate exuberantly and often explicitly for an inclusive sexual ethic.
In the end, the right to offend must trump the right not to be offended. With the exception of Justice Alito, the overwhelming majority of the court understood that principle today. I am heartened that from Sotomayor, Kagan and Ginsburg on the left to Roberts, Thomas and Scalia on the right, the Supremes stood for the right to be offensive, to be unpopular. Even, perhaps, for that most unhappy and yet vital of rights: the right to be cruel.