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Opening Arguments

Shut up, Fred

The Supreme Court today will hear arguments in the case of the demented or evil (take your pick) Fred Phelps and his merry band of pranksters, who have graced Indiana among their visits to picket military funerals with their "God hates fags" and "Thank God for dead soldiers" signs. It is almost universally agreed among followers of all religious doctrines and across the political spectrum that the Westboro Baptist Church's actions are vile and despicable. It is also accepted, though not quite as universally, that the First Amendment requires us to tolerate such nonsense. If it doesn't protect speech we disagree with, it's useless, and . . . well, you know all the arguments.

Here, though, is a long and thoughtful piece from the Cardozo Law Review attempting to make the case that actions such as Westboro's can be forbidden or last least severely curtailed without doing damage to the overall right to free espression:

Of particular significance, we analogize to and borrow from various lines of [Page 369] authority—residential picketing of abortion provider cases, abortion clinic access cases, hospital patient protection cases, tort cases dealing with the mishandling of human bodies, telephone and other harassment cases, and so-called “compelled speech” cases in which the First Amendment has been held not to permit individuals to be “used” as mere instruments for the speech of others—to suggest that categorical and doctrinal lines are and can be drawn to permit government to reach odious conduct of the kind at issue in Phelps.  We point to two specific features of the Phelps scenario—the well-recognized vulnerability of the victims, and the distinctive way in which the speakers disregarded the victims' essence as autonomous beings and misused the mourners' torment as means to an end—that would justify some meaningful regulation under existing doctrine.

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     We begin by readily acknowledging that offensive or disturbing speech in a generically open and public venue may not ordinarily be punished or prohibited, notwithstanding the sincere and predictable discomfort some members of the audience will likely experience when they are confronted with such expressive activity.  That is the doctrinal starting point our analysis must accept and from which it must proceed.

[. . .]

If we are correct that there is a long standing cultural tradition in our society, often enforced by law, requiring sensitivity to the impact of death on family members and friends, then the idea of restricting protests at funerals becomes more justifiable.  United States constitutional law reflects the normative consensus of our society over time, not some set of universal imperatives that are entirely unanchored from the country.  Just as our cultural abhorrence of polygamy has been understood to limit both free exercise rights and rights of privacy and personal autonomy, there may be some expressive activity in certain locations and times which is recognized by our culture to be so hurtful and of so little social utility as to justify the imposition of civil liability. 

There is a risk, which the authors note, in letting courts decide which speech is "too harmful and of too little value to be protected," and I'm not sure if the article makes the case that the risk is acceptable. But it is at least adding to our discussion points the idea that we sometimes let ourselves be held hostage to our absolutes by people who have no real love for the rights they abuse or the Constitution that protects them.