Saturday, April 16, 2011

What does Free Speech mean?

I started writing this blog post several weeks ago with the intention of explaining the Supreme Court's ruling on Snyder v. Westboro Church (here is the actual case in pdf at the Supreme Court's websiteSnyder v. Phelps).  Five minutes into writing I realized I wasn't really writing for people, I was writing for lawyers.  I was starting to prepare a brief.  For all those non-lawyer types, a brief is a breakdown of the case, not tighty-whities.  The first thing a law student learns (after getting over the sticker shock of the costs) is how to break a case down into Facts, Issue, Reasoning, and Holding.

Anyway, the brief is a great method to understand a case, but it isn't the way to explain it.  I think the humanity and history of the actual case is lost.  Facts fill that area, but only the facts the Court uses to make its decision are important, not the history or humanity—that is how you end up with court decisions like Dred Scott and Plessy v. Furguson.  Sometimes the facts used by the Court are completely irrelevant to what the case was really about.  
History: Matthew Snyder, a Marine, died serving his country.  His father, Mr. Snyder, buried him in Maryland.  Funeral mass was at a Catholic Church.  A notice was published in the local paper about Matthew's funeral.  The Westboro Church, from Kansas, saw that notice and planned to protest.  Westboro believes that the fate of our country is damned because of the flexible morality of society--homosexuality, support of Israel, Catholics, and plenty of other things.  Over the last twenty years, the Church has been spreading their word by making public appearances at well attended events, such as funerals, political speeches, parades, and fun-runs.  (Every time I ran the Bloomsday 12k Run in Spokane, WA, some old guy had a Westboro-type sign condemning the country.) 

Westboro notified the Westminster police about their intention to protest.  On the day of the funeral, Westboro protested 1000 feet from the church on public land.  Mr. Snyder saw only the tops of the signs on that day.  His friends let him know what was going on.  In furtherance of their...proselytizing...Westboro wrote and published online what the Court refers to as an epic.  In this web post, Westboro attacked Matthew's parents for failing to raise him correctly and continue their disturbing assault on Mr. Snyder and the country.  Mr. Snyder read this epic a few weeks after the funeral.  Already grieving for his son, Mr. Snyder suffered further torment by reading that epic.

In my opinion, and basically everybody else not overcome with hate and bigotry, Westboro's message is expressed solely in hateful words.  These hateful words are directed at everyone reading their signs.  Westboro's preaching method seems to be designed to incite action.

Issue: That is the big deal about this case.  Westboro uses hurtful words to draw attention to their cause and they do it in a way that draws attention by going to funerals.  They have made a large name for themselves by picketing the funerals of our fallen troops.  In answer, veterans have created barriers for the grieving families covering up the Westboro picketers.  This whole drama is larger than Mr. Snyder, but his experience is the first to make it to the Supreme Court.

Mr. Snyder went to court based on the tort Intentional Infliction of Emotional Distress.  This tort isn't about hurt feelings.  It is about emotional abuse and the complete destruction of a person's emotional wellbeing.  The plaintiff needs to prove physical side-effects to the emotional distress.  Mr. Snyder had it in spades.  In fact, Westboro abandoned any attempt to fight this battle on the tort theory--they kind of said "Yeah, we did it, we caused his additional pain and suffering, but we're protected by the First Amendment, so you can't come after us."

Reasoning: How can the First Amendment protect Westboro?  These people go out to hurt feelings so everyone else will pay attention to them.  They're like the snot-nosed, bratty kid all the other kids ignore in the back of the classroom using rude noises and bad behavior to get attention.

Here's how the First Amendment protects these kids: Was the nature of the speech Private or was it Public?

Why does that matter?  It matters because Private speech is calling your neighbor a lying cheating bastard who sleeps with donkeys to a group of his friends.  While it might feel good, your neighbor probably isn't the subject of public discourse.  In this case, unless you can prove that your neighbor is exactly what you said and doing what you said he was, you can be sued for defamation and probably a couple of other torts.

On the opposite side is Public Speech, which is calling a highly elected official a prevaricator pilfering the public treasuries to purchase his personal pleasures.  The actions of a public actor are subject to public discourse.  We should have the ability to discuss certain things in public free from the freezing effects of silly things, like lawsuits and criminal law.

See the difference?  Even if it was clear, how does that help here?  The Supreme Court's opinion has almost the same problem.  Where is the line?

"Speech deals with matters of public concern when it can 'be fairly considered as relating to any matter of political, social or other concern to the community,' or when it 'is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public."  Snyder v. Phelps, 562 U.S. ___ (2011) (internal cites omitted).  So, your neighbor and the donkeys aren't for public consumption, but the politician using public funds to pay his prostitutes is of public concern and a legitimate news interest.

So, a group using hurtful—hateful—words to convey their view is protected because content is the real key.  Westboro’s hurt-speech is about a topic pertaining to public concern—the course of our country.  I think if the Supreme Court hadn’t felt that the “content” wasn’t of public concern, then they would have rejected Westboro’s appeal. 

But, as rude and hurtful the words are, those words address a topic of public concern.  The First Amendment requires that we accept that anyone can express their view—regardless of how we feel about.  That is how the KKK and the Aryan Nation are able to hold parades and rallies and have websites.  We have to be able to let those Morons say their peace.

Then we can tell them to shut the F-up and go about our business.  It isn’t easy and we’ll never feel right about it.  We want to return a slap to the face with a fist.  Turning the other cheek is ideal, but hard. 

The best way to handle the slap to the face is respond with something equally protected.  Buy a motorcycle and join the Veterans that counterprotest.
I did not take any of these photos and do not claim copyright to them.