Westboro Baptist Church and The First Amendment….

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: LawSupreme Court



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Filed under first amendment, free speech, hate speech, westboro baptist church

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