On Westboro and the Right to be Cruel

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.

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11 thoughts on “On Westboro and the Right to be Cruel

  1. I don’t think I can agree with you on this one. Displaying hate messages outside a funeral — a private event — seems closer to harassment and intimidation than pure political protest. What’s next? Protesting across the street from the house of an openly gay couple?

    • The right to protest is well-established in American law,and it protects all of us. You can’t threaten a gay couple, but if you want to picket them while you are on public property (and not in violation of ordinances concerning noise or loitering) that is protected. The law allows picketers at abortion clinics to hold signs of faked fetuses, but not to block the entrance. The law allows protestors to call Gov. Walker of Wisconsin a fascist or a nincompoop.

      I want porn to be legal. And I want people to question its use. Lasting social change happens by changing hearts and minds, not by legislation to silence those whose views and vision we find abhorrent.

      The classical liberal v. radical divide, and why I could never stand with Dworkin and MacKinnon, and why I love the ACLU.

      • I’m not sure that it’s fair to characterise the divide as one of liberalism against radicalism. Authoritarianism is only the product of radicalism if your essential politics lead you there; radical anarchists, for example, are not a bunch known for their love of censorship.

      • Can you expand on this statement: “You can’t threaten a gay couple, but if you want to picket them while you are on public property (and not in violation of ordinances concerning noise or loitering) that is protected.”

        How would “picketing” private individuals be distinguished from harassment or stalking? Can a man stand on a public street outside his ex’s workplace and hold up a sign with her name and obscene hostile messages? I’m wondering what scenarios you are thinking of and what’s the legal support for this position.

  2. A great post! I was going to write about this too but you already said everything I wanted to. It’s moments like these that make me proud of this country’s unwavering commitment to protecting free speech.

  3. I agree with Justice Alito’s dissent that this is tantamount to capitalizing on the private grief of others. The protests are in no way connected to the funerals, so it does come across as if the protesters are simply harassing military families to get attention. Having been on the receiving end of it from feminists when speaking publicly about my experiences, I can attest to how cruel feels to have someone use a private or personal moment to hurt you or address some other issue. It is little more than harassment and intimidation.

    However, I also agree with the majority decision that hurtful speech ought to be protected. Likewise, I do not think the “slippery slope” would be a logical fallacy in this instance. Given the way court decisions are applied, someone would probably apply a majority dissenting decision to lesser cases.

  4. I read recently, that Wikipedia only has 15% of contributors who are women. The real question of free speech is who gets the most outlet for it. And the truth is, the most censored people on planet earth are women, and particularly radical feminists. Men like to pretend first amendment fairness to really nutty groups like Fred Phelps and company, but it is a smokescreen to cover up glaring numbers like Wikipedia authors, the actual subjects most covered, the total numbers of women actually commenting as experts in the media, the total number of op-ed pieces and mainstream columnists for major news media who are women.

    It is women who are silenced. All of this is just nutcase male posturing. Get at the real silence.

  5. There go hate speech codes. The tactic of feigning offense to get somebody else sanctioned by authority is now officially over.

  6. The case law is fairly clear about harassment, which would be ongoing and personal and threatening. This funeral was a one-off; and WBC was 1000 feet away on public property. There was nothing on the signs that attacked the dead soldier personally. “God Hates Fags” is a protected statement in a way that “God Hates Mikey Jones” isn’t, unless Mikey Jones is a recognizable public figure.

    The best response to WBC are the folks who show up with huge angel wings to block them. That’s fighting speech with speech, without empowering the government to silence anyone.

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