Why I Hope Westboro Baptist Church, the ACLU, and Dahlia Lithwick Get Their Butts Kicked By the Supreme Court

Dahlia Lithwick, whether you love or hate her thoroughly opinionated reviews of Supreme Court arguments and decisions, is a tremendous judicial reporter. She notices things which so many others miss. But in her coverage of Snyder v. Phelps, she couldn’t see what the overwhelmingly majority of people of her class and profession and outlook also don’t see: that speech–and I mean here, specifically, the individual right to express themselves–is, frankly, only a second-order good, not a primary one. After insightfully detailing the oral arguments, she sums it up pretty simply: people are being caught up in the fact that what WBC does is hateful, and hate is not to be trusted; it gets in the way of the basics. “They are struggling here with the facts,” she concludes, “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 is not an unusual conclusion; it’s a standard liberal, individualist, pluralist one. Adam Cohen repeated it in Time Magazine: “it is important for the court to rule that this kind of expression lies within the First Amendment. We defend it not because these ideas are particularly worthy of being protected, but because all ideas, even the most loathsome, are.” Or forget today’s journalists; just go back to John Stuart Mill: “If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind” (On Liberty, chp 2). Start tossing around that kind of language, take it absolutely seriously, and the result will be…well, among other things, it will be Supreme Court decisions like Federal Elections Commission v. Wisconsin Right to Life, or the notorious Citizens United v. Federal Elections Commission, in which speech–your right to say it, your right to buy it, your right to hear it, your right to sell it–is considered essentially sacrosanct, irregardless of the emotions–or the inequities in power and access–involved. Comfortably liberal commentators like Lithwick may not see the connection between defending a fundamental right to speak offensively and defending a fundamental right to all the advertising anyone with deep pockets can possibly buy, but the connection is there. Which is another reason why this court will be unlikely to side with Snyder against WBC’s hate. Too bad.

I’m not attacking the First Amendment here; I simply disagreeing with one particularly common, frustratingly extreme way to interpret it. Defenders of current law can, of course, come forward to point out the many exceptions and further considerations that might complicate my wish. It is true that we have a variety of precedents, restricting speech when a speech act poses a burden upon the necessary, ordinary business of others, or when it presents a threat to the preservation of public order through inciting violence or intimidation. But this case doesn’t involve any of that; it involves someone claiming emotional harm due to the speech (which, it must be said, he only learned about after the fact through television reports; local laws prohibited the Phelps from carrying their signs into the funeral home or along the funeral procession route). And the fact remains that the law, and very likely the Supreme Court, just won’t take “hate” or “emotional distress” seriously as a good worth defending, or at least worth balancing against the imperative of defending even loathsome opinions. But they should.

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