Free Speech Absolutism

The Supreme Court has issued Snyder v. Phelps, the case about the Westboro Baptist Church's desecration of a serviceman's funeral by picketing the funeral with outrageous signs at about 1,000 feet in distance from the funeral site.  When the funeral attendees processed out, they came within 200-300 feet of the protesters, and the deceased's father could see the tops of the signs, though not what was written.  The father later saw the whole abomination on the Internet, along with further personally offensive and deeply hurtful material directed against his son.  The Church won.  Though I am not surprised by the judgment, I respectfully disagree with it, and I have to say that I am surprised by the fact that there was only one dissent (Justice Alito).

In the first place, Chief Justice Roberts raises a number of facts that the majority finds salient that I simply don't: the Chief Justice says, for example, that the picketers "did not yell or use profanity."  For me, carrying signs saying “God Hates the USA/Thank God for 9/11,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You" is quite profane enough (vulgar, that is to say popular, profanity is not the only variety).  Second, I disagree that signs displayed at a funeral and directed at the congregants containing the phrase "You're going to Hell" or "God Hates You" are at all matters of public concern, and I agree with Justice Alito that mixing in some statements that ostensibly are "public" ought not categorically to immunize the expression.  Third, this speech occurred right next to a private funeral -- its context was plainly private.  I recognize that technically, formally, the protesters were situated on a public street.  But that fact does not, in my view, do justice to what a "contextual" analysis ought to be all about.

Finally, and most importantly, I disagree with the Chief Justice's statement that "any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself."  That is true, again, only if one takes an exceptionally narrow view of what funerals are all about.  Funerals are not simply occasions bounded in time and space by the beginning and end of the proceedings at the burial.  Funerals are symbolic occasions to honor, mourn, and remember the dead.  Their meaning and value extends well beyond the time between the moment of the cleric's first utterance and the moment that the body falls to earth.  I recognize that this conception of a funeral creates problems of line-drawing.  So be it.  Whatever those problems might be, they are not implicated here, where protesters were only feet from the event itself and where their protest was flamboyantly and spitefully flaunted immediately thereafter.  And far better to trouble ourselves about slippery slopes than to sacrifice one of the most cherished values that we and so many civilized peoples hold dear -- the value of honoring the dead -- on the altar of free speech.

Speech is, indeed, powerful, as the Chief Justice rightfully says.  And it is precisely for that reason that speech rights ought to be strong, but not absolute; protected, but not inviolable.  A regime of free speech absolutism even when we deal exclusively with matters of "public concern" (which was not the case here) is not, in my view, consistent with a state's responsibility to cultivate, to the extent that it can, the social and moral ecology of its people.