The headline writers are going to say that the justices "struggled" with this case. That may be so, but what they struggled with has very little to do with the law, which rather clearly protects even the most offensive speech about public matters such as war and morality. They are struggling here with the facts, which they hate. Which we all hate. But looking at the parties through hate-colored glasses has never been the best way to think about the First Amendment. In fact, as I understand it, that's why we needed a First Amendment in the first place.This case has me pondering the ways America has changed since the1950s. Anybody who staged offensive protests at the funerals of Marines back then would have been beaten up and tossed in a ditch by masked men, and when the police investigated they would mysteriously not have found any evidence, even if the beating took place on Main Street in broad daylight. We have, it seems, moved beyond that sort of response to political provocation. In America now you can stage an offensive protest at the funeral of a soldier, and what happens is a bunch of lawsuits and a lot of hand-wringing in the press. Progress, I suppose.
Thursday, October 7, 2010
Westboro Baptist at the Supreme Court
The Westboro Baptist Church case was heard in the Supreme Court yesterday. This concerns a lawsuit filed by the parents of Matthew Snyder, a Marine killed in Afghanistan, against the church for picketing Snyder's funeral and posting attacks on him and his parents to their web site. Dahlia Lithwick has a great write-up of the oral argument:
I presume the argument against Westboro has to do with harrassment. Surely there is room for the idea that people can say whatever they want, but if you aggressively and intentionally position yourself in someone's face in order to say something offensive to them, surely there are grounds for restricting that. Should the Klan be able to burn a cross, say, right across the street from a black church? Should they be able to do that over and over again? Obviously then you could say that Rosa Parks sitting in the black section of the bus was harrassment, and should be quashed. But one doesn't want an action like that to have been quashed. So there's a problem. My question for you is, what should happen if the KKK burns a cross right across the street from a black church? What if they do it over and over?
ReplyDeleteThe courts have held that cross burning can be construed as a threat and punished accordingly, especially if done as you suggest, in a menacing location.
ReplyDeleteThe Westboro crowd has had to change their tactics, and they only protest now on public sidewalks outside the cemeteries or churches where the funerals are taking place. At protests they mostly hold up signs and sing hymns. If they shouted in people's faces they could be prosecuted for that, but lately they have not been doing that and they didn't do it to the Snyders. I think it would be hard to make a harassment charge stick. It does seem like the justices were looking for some way to get at the protesters, but I don't see how they can. They are protesting against laws and government policies they find immoral, and that is highly protected speech.