The Price of Free Speech
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The Price of Free Speech

March 6, 2011, 7:18 pm
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Phelps and his motley band of followers are now free to launch hateful , hurtful and obnoxious verbal volleys at people in the throes of grief.
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By Reynold N. Mason JD

Atlanta, Mar. 05, 2011.      Last week the U.S Supreme Court ruled in the case of Snyder v Phelps, that Phelps and his legions of mindless disciples are free henceforth to go forth and wreak havoc at the funeral of fallen soldiers. What got the Westbrook Baptist Church in hot water was its outrageous, obnoxious picketing at the funeral of Matthew Snyder, in Maryland a while back. Matthew Snyder was killed in Iraq and Phelps and his legions showed up at the funeral brandishing banners and placards bearing verbiage that ripped apart the heart of the fallen soldier’s father, his family and friends.

Some of the obnoxious signs and placards bore the hateful words that have brought Westbrook notoriety over the last few years. Church members have staged protests at 600 plus funerals with signs that read: “GOD HATS FAGS” “THANK GOD FOR DEAD SOLDIERS.” 

Westbrook Baptist Church owns domain names that will assault the sensibilities of the most wooden advocates of free speech among us; “” “”, “” “” “”, “”   “”, “”, and of course, the one-shot, all purpose, all encompassing, “”.

The Church is a snake pit of venom. And Phelps and his followers hiss and spew their hateful, hurtful slogans, like vipers, at the heart of those in the throes of grief. Mr. Snyder simply wanted to bury his son in peace. Now his name will forever be linked with one of the most contentious free speech issues America has had to confront since Civil rights. Whatever else Phelps might hope to gain by his callous, backwards and obscene displays, he does succeed in gaining publicity. The media are drawn to Phelps’ freak shows, like moths to a candle. They must sell papers and they know that anyone who dares to compound the grief of family and friends at a final farewell with epithets as vile as Phelps’ are sure to incur the ire of decent people. The quest for notoriety drives Phelps and his motley band of followers.

When a crazed shooter shot up Congresswoman Gabrielle Gifford’s meeting in Tucson, Phelps announced that he would picket the funeral of a 9 year old killed by the crazed shooter because she was “better off dead”. The story made national news. To spare the little girl’s family the slings and arrows from Phelps ample quiver, he was given free air time on a radio in exchange for calling off the protest.

Hate speech is protected speech. Why, one might ask, do we permit someone like Phelps and his followers to launch a verbal volley of hurtful, hateful, and obnoxious slogans at people in grief?  In the United .States the regulation of free expression of ideas is different from the regulation of any other industry. What makes it different is the First Amendment to the Constitution;   “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” I once heard or read something the great Alexander Solzhenitsyn said in the media. It was in essence, that man is a rational being with the gift of speech. If he cannot say what he thinks then he is no different from a dumb animal. For me, that is where the rubber meets the road. To paraphrase Justice Brandeis, people could trade their false notions for true ones, but only if they could hear the true ones.

The optimum response to Phelps is not to shut him up but rather to shout truth into his wax-filled ears, loud enough to be heard over the noise inside his own head. Were we to suppress his thoughts, they might drive him mad and his wild antics might be viewed as grounded in delusions.  Any first year law student could then plead him out on grounds of insanity. The idea of free speech that the First Amendment protects is designed to work as a safety value for the release of noxious ideas such as Phelps’. It lessens frustration and channels hate into means consistent with law. Phelps and his followers have not engaged in some of the illegal acts that marked some of the protests of the 1960’s.

But what about Mr. Snyder?  The sort of conduct exhibited by Westboro would move some to a violent response. Having just this in mind, some states passed laws making it a crime to engage in behavior likely to arouse “anger and alarm” on the basis of race, color, gender, creed, or religion. The problem with such an enactment is it is not content neutral. It bans only certain kinds of speech, so that a youth prosecuted for burning a cross on the front lawn of a black family under the ban was acquitted. The content of the speech in what determines whether it is protected  speech.  In ruling in Phelps' favor, Justice Roberts said the distress occasioned by the protests here, turned on the content of Phelps’ message.  Americans, grateful for the ultimate sacrifice of fallen soldiers are wrenched by the slogan “Thank God for dead soldiers.” But Phelps can say it because it is a political message; it conveys the idea that Westboro is opposed to war. That makes it protected political speech.  Were the protesters instead waiving signs that read, “God Bless America” there would obviously be no issue,  because that is free speech we like and admire at the requiem for a fallen soldier. That means we would be censoring speech on the basis of its content.

The court found no problem with the place or manner of Westboro’s protest because they were kept a little distance from the mourners and they had obtained all of the required permits prior to their protests. If the nasty words are dressed up in political clothing, there is no recourse from their stinging blows. In the end, the $11 million verdict won by Mr. Snyder on grounds of intentional inflection of emotional distress was thrown out.  The ruling, for many, is a bitter pill to swallow. Much like a good analgesic, it may eventually make the body better; but it is bitter going down. The hope is that tolerance of vile protests and hate speech like Phelps’ will strengthen the body politic and America will be better off for it.

Justice Alito, the lone dissenter, gave voice to the frustrations of hosts of Americans. He said that the First Amendment assures that Westboro has limitless opportunity to express their views. But it does not give them license to launch a vicious attack that makes no contribution to the public debate, by methods that are callous, atrocious, outrageous in character and utterly intolerable in a civilized society. Whatever little benefit there is from the slight value of the Phelps’ protests, Justice Alito feels, is outweighed by the social interest in order and morality. Justice Alito echoed the feeling among a host of sympathetic citizens who feel that personal abuse at funerals is not the means to communicate one’s political opinion. A public park, the State capitol or a public street may be the proper place, but not the funeral of a fallen soldier.

Author: Reynold Mason
Reynold N. Mason teaches law courses at Zenover Educational Institute In Atlanta, Georgia. He has been a judge on New York City Civil Court and, a Justice on New York State Supreme Court. Mason has been an adjunct professor of law at Medgar Evers College and Monroe College in New York. He has authored several legal opinions published in New York Miscellaneous Reports and New York Official Reports as well as the New York Law Journal. He lives in Atlanta.
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