While LGBT blogs have been buzzing with several stories about freedom of speech these past few weeks, only one's really gotten the mainstream media's attention: the suit Lance Corporal Matthew Snyder's father brought against the Westboro Baptist Church for protesting at his son's funeral. An appeals court ruled that the church's right to protest on public property couldn't be limited and overturned a lower court's multi-million dollar ruling against the WBC, and ordered the plaintiff to pay the WBC's legal fees.
So there's been plenty of boo-hooing coming from mainstream media folks, discussing just how terrible it is for the WBC to protest soldiers' funerals. Now, someone with a long-term memory and a skeptical mind might wonder why people are so upset just now over the WBC, just over these past few years when they started protesting soldiers' funerals and not before when they were a relatively unknown entity protesting funerals during the AIDS crisis and of gay people killed in hate crimes. The mainstream media (plus Bill O'Reilly, who spars with the WBC regularly) really doesn't care that the WBC is viciously homophobic, or even that they protest funerals, and instead the WBC's biggest sin against the scolds in the punditry and news media is being insufficiently respectful to the troops.
With that in mind, I came across a column today by Leonard Pitts, Jr., advocating an exception be made to free speech just for the WBC. Check out the hand-wringing:
Take it as a reminder that what is legal is not necessarily right. I admit to being conflicted. I am a strong believer in the First Amendment and in the principle that freedom of speech means nothing unless it is protected for the vilest among us: even the flag burner, the anti-Semite, even, as in this case, the intellectually incontinent. On the other hand, the protections are not absolute: There is no First Amendment right to threaten or to libel.
There is no First Amendment right to threaten or libel. Did the WBC threaten or libel anyone here*? Sure, you could say their argument isn't true, but it's not like the argument that God's punishing America for being too pro-gay is really something that could be proven wrong. And if that is libel against gay people (not that Pitts really seems to care about us; his focus is the troops), then there are quite a few churches and orgs that could be sued right now for saying God doesn't like homosexuality.
So surely we could carve out some reasonable exception that would keep a Fred Phelps from intruding on the solemnity of a private funeral. Of course, those are legal questions.
This is the real problem: Pitts doesn't have anything in mind, any legal principle that the WBC violated, and fair reason their free expression should be violated. He just wants the WBC to be forced to stop doing what they're doing, and he thinks that someone should come up with a legal principle to make it happen.
It's easy to chip away at free speech around the edges that way - no one really likes the WBC (other than the Religious Right, who does like being able to point to them and say, "We're not homophobes; they are") and people generally think that protests shouldn't happen around funerals (I say "around" because the WBC protests across the street from funerals, not on private property).
Ultimately, though, Pitts's comment there demonstrates a larger point: usually when people want to limit free speech in some way, and they come up with some reason to do it, some way that it seems justifiable, really what they want is for a specific person to be punished or act to be banned and are searching for a principle after the fact.
Part of what makes a protest effective is its ability to be outrageous and get attention, and one of the ways the WBC is outrageous is they're going after a powerful political prop, a group of people respectable media and politics folks like to shield themselves behind because it's considered beyond reproach to criticize them: the troops. In an age where it seemed like everyone put a yellow ribbon on their SUV, where any criticism of the Iraq War was met with "You're disrespecting the troops," attacking soldiers is really an easy way to get people's attention and an easy way to become public enemy #1.
Consider how Pitts finishes his column with waxing poetic about the troops:
While we await that lovely day, this case is bound for the Supreme Court, where Summers will continue representing Albert Snyder for free. I asked the attorney why, and he told me that he's a veteran and has a brother doing a third tour in Afghanistan. "I would be appalled if someone did something like this at my funeral."
You'd like to think that's unimaginable. But we live in a country where it's anything but. For better -- and some days, for worse -- those are the rights people like Matthew Snyder die to defend.
Yeah, Saddam Hussein was about to take away the WBC's right to protest funerals. Mm-hmm.
Just because one group of people is unpopular and they're criticizing a group of people who is popular, and just because a group of people protests in a way that offends people's sensibilities (or, as Pitts puts it, "sense of right"), doesn't mean that it should be banned. That's why we have a court system - to make sure these basic principles are applied fairly. Just because they chose to insult the troops doesn't mean that they don't have a right to free speech. The First Amendment doesn't make an exemption for attacks on the troops.
Everyone who wants to ban a certain form of speech does so because they think people either can't handle it or because it'll hurt people's feelings. And while that's true, there's plenty of speech that fits into both categories, the alternative is letting a powerful group of people decide what we get to hear and what we get to say. There really isn't much middle ground.
*The plaintiff did include a defamation count in the original complaint:
21. In particular, the website states "God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver. In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD - PERIOD! You did JUST THE OPPOSITE- you raised him for the devil."
22. In addition to the previously described false and outrageous statements, the website states "Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic monster they condemned their own souls. They also, in supporting satanic Catholicism, taught Matthew to be an idolator."[...]
28. Plaintiff Albert Snyder, contrary to the defendants' defamatory statements, did no literally raise Matt "for the devil," nor raise him in an evil or immoral manner - the natural connotation of that statement.
The parts of the suit related to the website were thrown out, and the jury awarded the Snyders damages related to the remaining counts: violation of privacy (because the WBC drew attention to the funeral), emotional damages from the protest itself, and conspiracy to commit the same.
In other words, the defamation charge was tried and tested in court, and it didn't work.