When Free Speech Feels Wrong
Should emotions have played a greater role in the Supreme Court’s Westboro Baptist Church decision?
An Easy, Ugly Case
Updated March 3, 2011, 10:22 PM
Patricia J. Williams is the James L. Dohr Professor of Law at Columbia University. She writes the column “Diary of a Mad Law Professor,” which appears monthly in The Nation.
For a cult whose members number fewer than 90, the Westboro Baptist Church produces an endless series of philosophical challenges to the notion of free speech. Best known for its Web site, “GodHatesFags.com,” and attendant sloganeering, it also maintains a litter of sites bearing such charming monikers as “JewsKilledJesus.com,” “BeastObama.com,” “GodHatesTheMedia.com,” “PriestsRapeBoys.com,” “GodHatesAmerica.com,” “GodHatesSweden.com,” “GodHatesIndia.com,” and, of course, the one-shot, all-purpose, all-encompassing, “GodHatesThe World.com.”
The Westboro case allows us to forget that the First Amendment really anticipates a deeper kind of dissent that tests government’s commitment to disagreement.
Reprehensible as it is, Westboro’s rhetoric has an oddly unifying emotional power. Indeed, the family’s harangues are so awful that the vast majority of us can shake our heads in easy dismay. As a baseline for political dissent, therefore, Westboro allows us to forget that the First Amendment really anticipates a kind of dissent that is more deeply challenging, a test not only of individual conscience and resonance of feeling, but also of the government’s commitment to the democratic ideal of suffering — really suffering — disagreement.
In recent years we have come to associate the notion of “free speech” with the ability of Mel Gibson or drunken frat boys to spew diatribes that, at best, are factually unsubstantiated, and at worst, racist, anti-Semitic or homophobic.
But the essence of the First Amendment is not about individual hurt feelings: it is about ensuring public debate. And public debate requires first, a public space that remains orderly, free of violence — hence much jurisprudential grappling with the putative difference between speech and conduct, or between the merely provocative statements and “fighting words.”
Secondly, free speech demands government restraint in suppressing or punishing those whose ideas challenge the political order. While we spend a great deal of time worrying about “speech codes” imposed by private universities, for example, a better test of the First Amendment’s significance is when someone steps on the flag in a public square, or burns the Constitution as part of an arts installation (as performance artist Dread Scott does in one of his shows).
Recently, the Smithsonian removed from an exhibit a short film by the artist David Wojnarowicz, which showed ants crawling over a crucifix, symbolizing a rebuke to many churches’ silence during the early years of the AIDS crisis. That should worry us. The right to demonstrate, protest, make art, dissent are all dimensions of what was at stake in the Supreme Court’s holding in the case against Westboro Baptist Church.
At the same time, the most vexing question we confront as citizens is indeed the dark side of the First Amendment’s license to which Justice Alito alludes in his dissent: what happens when the message of one entity is so loud that it raucously invades all listening space; or so ubiquitous that it crowds out all other messages?
In an era of vastly connective social networking technology, Westboro Baptist Church seems almost quaint as its noisy little band drags itself from one place to another, one funeral at a time. But what happens if Westboro were to become a vast media conglomerate? What if it had the power to be not only heinous but globally ubiquitous and hypnotically persuasive?
We acknowledge the power of words in every field of endeavor except politics, it would seem. We fret about violent lyrics in the music industry; we talk about the representation of family values in movies; and, in advertising, we know that mere passing familiarity with a word or an image is considered pure gold.
What happens when the expenditure of money is understood to be political speech — as has been true since the 1976 Supreme Court case, Buckley v. Valeo? What happens when corporate wealth dominates the political speech realm, as the court’s 2010 ruling in Citizens United v. Federal Elections Commission allows?
We, the people, don’t yet seem to have a gut sense of emotional distress about these cases — though surely we ought to be arguing noisily, debating heatedly, getting really worked up about the fact that access to media of any sort still requires wealth; that public airwaves belong to a handful of private companies; and that reliable political information is being reconfigured in an era of Facebook and Fox News.
Again, the Westboro case is much too easy.
Topics: Law, Supreme Court
License and Liberty
Fred Phelps’s Westboro Baptist Church is an alarming coven of zealots. Somehow they find the energy to picket everything from Comic-Con (“an excuse for whores to wear skimpy get-ups”) to the funeral of Mr. Rogers (for teaching tolerance to children) to the Golden Globe Awards (because “people chase after frivolity and vanity when they ought to turn back to their Lord Jesus Christ and_Repent and Obey”). Prejudiced in the broadest sense, they maintain that Catholics are the “most hateful people on earth”; Muhammad was a “whoremonger”; and “Jews are the real Nazis.”
It’s not surprising, then, that the Supreme Court created a stir with its recent holding inSnyder v. Phelps that freedom of expression precludes the government from punishing Westboro for picketing the funerals of private citizens with hateful epithets. The opinion, however, is quite narrow — the Court held only that the political content of Westboro’s rhetoric was protected by the First Amendment against torts of intentional infliction of emotional distress — and the popular impression that Westboro is now free to shout its fire and brimstone at funerals willy-nilly is misleading. Indeed, in the incident in question, Westboro complied with police requests to stay 1,000 feet from the funeral, and all but the tops of its members’ signs were hidden from mourners’ view.
What is most interesting, therefore, about Westboro’s social challenge was not really in the suit. Indeed, the general revulsion at the Snyder decision is probably underwritten less by the particulars of the case than by concerns about the Phelps family’s sanity: about their ghoulish haunting of funerals, their open calls for hatred, the sad plight of the smallest of their children holding God Hates Fags signs, as well as the enormous publicity that always attends such a sorry little band. The issues at stake go beyond free speech and touch on communications technology, profit, celebrity and mental health. Consider, for example, what happened in the wake of Jared Lee Loughner’s rampage in Tucson, when it was reported that the Westboro church “agreed” not to protest at the funerals of the shooting victims. But agreement implies agency, rationality, capacity to contract. How did Westboro — which claims to have picketed more than 44,000 events in more than 813 cities — suddenly become so “agreeable,” anyway?
As it turned out, there was indeed an explicit bargain not to protest in exchange for airtime on two radio stations. Arrangements like this have worked for Westboro before; most notoriously, it received lots of airtime in exchange for not picketing the funerals of five Amish schoolgirls killed by a gunman in 2006. Margie Phelps, a lawyer for the church, said that such contracts were made based on how much publicity they would get: “It’s how many ears we can reach. That is our job; that is our goal.”
That Westboro was not at the Arizona funerals was good news, but the transaction behind it is worrisome. Conservative host Mike Gallagher, one of the radio personalities who “donated” an hour on his show, said, “I don’t like the idea of giving them the satisfaction of this, but I believe my radio airwaves are less important than them hurting families.” But Gallagher’s nationally syndicated show reaches millions of listeners. Was Westboro’s absence really “worth” such broad access to so “many ears”? Gallagher positioned “his” airwaves as some kind of chit to be traded according to no bounds but his own. The deal had more than a whiff of extortion about it, like children who declare that they will stop screaming only if their parents let them have that candy bar NOW! What’s at work is less free speech than plain old bullying, shot through with entertainment value — a show that will get everyone’s juices jumping, better than a fistfight on Jerry Springer.
A week before the show aired, Gallagher gave lip service to balancing the program with moderating voices. In getting his network to agree, he said that it was important to have “a skilled, intellectual theologian type” in the studio at the same time. “So we invited the great Dinesh D’Souza to also be a part of this very important broadcast.”
One hardly knows whether to laugh or cry. Dinesh D’Souza? The one who blamed the “cultural left” for 9/11 because “what disgusts [Muslims] are not free elections but the sight of hundreds of homosexuals kissing each other and taking marriage vows.” The same D’Souza who believed that torture at Abu Ghraib “didn’t represent the values of conservative America” but rather “the sexual immodesty of liberal America.” D’Souza! Who as editor of The Dartmouth Review, published a vulgar satire of Jewish students’ celebration of Succoth.
Gallagher continued: “We’ve managed to do what the courts have been unable to do, and that is stop the Westboro Baptist Church from going to hurt these particular families…. We’re very proud of that, especially in the light of…this horrendous accusation that talk-radio somehow led to the events of last Saturday…with our so-called inflammatory rhetoric.”
And so the broadcast went forth to the multitudes, on January 17, Martin Luther King Day. Phelps’s daughter Shirley Phelps-Roper spoke in a soothing rush of soft urgency, declaring that final destruction is imminent. “God hates,” she said in her agreeably dulcet way; it’s just “His perfect righteous determination.” She called the Tucson shooting a “God-smack,” and complained “the media has shut the door to the word of God.” “The federal judge in Arizona [one of the murdered victims]…is paying the down payment for putting us on trial.”
My belief in free speech extends, with some distaste, to the Mike Gallagher Show. I believe that words ought to be countered with more words. I am not sure, however, if simple ideological commitment to free speech is sufficient when the ability to have one’s words heard is so linked to wealth and to access to complex propagandistic magnifications of the human voice. And I remain very unsure if the gospel of violent vengeance, which so titillates mass media, is not providing the basis for prophecy of its own.
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