Alito Gets it Right about Free Speech

by Russell Arben Fox on March 3, 2011 · 19 comments <span>Print this article</span> Print this article

in Short

As I predicted last October, the Supreme Court has made short work of the argument that the odious, bigoted, hateful, ridiculous Westboro Baptist Church ought to be subject to lawsuits for the emotional distress which their ugly protests cause. No, it seems, the First Amendment triumphs over all. Perhaps that is a good thing–the comments on my post here at FPR ran mostly against my desire to stop seeing free speech treated as such an absolute fetish that communities and states can legitimately empower citizens to demand, at the very least, that speakers of hate be made to accept the costs of advertise ideas so obviously opposed to widely held standards. I take solace, however, in knowing that one justice on the Supreme Court, Samuel Alito, a justice whose decisions I’ve mostly disliked, at least stands firm against treating allowing individuals to pretty much say whatever they want whenever they want, without consequences…and in doing so, I think he’s taking a stand on behalf of the ability of localities to articulate a moral and public order, which of course they ought (within limits; neither I nor Alito want to throw out the First Amendment here!) to be able to do. Anyway, for anyone interested, my thoughts on the 8-1 decision in Snyder v. Phelps is here. Enjoy.

{ 19 comments… read them below or add one }

avatar JonF March 3, 2011 at 8:40 pm

One good thing that Westboro Baptist does: they bring the rest of us together. No sane person on the Left or the Right can stand that gang.
I haven’t studied the exact ins and outs of this Supreme Court ruling, but overall I’d rather have hateful things exposed to the full light of day, where all of us can give them a firm thumbs down, than festering in the noisome dark.

avatar mushrooom March 4, 2011 at 11:52 am

Normally, Alito and I are on the same side. In this case, though, I have to go with the majority. Only offensive speech really needs protection.

Now if the good Lord were to allow me to meet Fred Phelps in a dark alley, I’d make certain he’d not be able to enunciate clearly for a while, but I’d never stop him from saying what he wants. If Westboro’s disgusting protests can be stopped, then any speech is only free to a degree. It might get to the point where I couldn’t call the President “Dumbo” or call his wife a Wookie.

The Founders would have likely met Westboro protesters with hickory switches, but they would not have passed a law to silence them.

avatar Russell Arben Fox March 4, 2011 at 1:28 pm

Mushroom, I respect your John-Stuart-Mill liberal response to Snyder v. Phelps, though I disagree with it; the civil libertarian attitude towards speech, like much individualism, is pretty much dominant everywhere these days, on both sides of the political aisle. I strongly disagree with your suspicion that the Founders “would not have passed a law to silence” Phelps. On the contrary, the Founders (with only a few, possible exceptions) were, by all available evidence, perfectly at peace with numerous state and local laws which punished blasphemy, obscenity, and general rudeness. I think, even assuming they could look past Phelps’s use of “fag,” that they’d definitely agree that carrying signs and issuing mocking chants anywhere even remotely in the vicinity of a graveyard was rude, and therefore actionable.

Please keep in mind, by the way, that the decision wasn’t even about Phelps’s freedom to speak; it was about making sure that Snyder was prevented in using a tort action to make him pay damages, and thus deter him from speaking so rudely in the future. Do we really treasure the individual’s right to offend widely and democratically articulated sensibilities so much as to make it even harder for someone to make a speaker pay for being such a callous jerk?

avatar John Haas March 4, 2011 at 2:21 pm

“On the contrary, the Founders (with only a few, possible exceptions) were, by all available evidence, perfectly at peace with numerous state and local laws which punished blasphemy, obscenity, and general rudeness.”

Indeed, they were, but in that case–as so often–they were wrong.

James Madison, on the other hand, was a nearly-lone, but hardly just “possible” exception, and certainly not an insignificant one.

Madison, it will be recalled, had proposed at Philadelphia that among Congress’s enumerated powers there be that of a veto over state laws.

He did so because experience and logic had made him keenly apprehensive about the “tyranny” of state and local majorities.

In the 1770s and ’80s, Madison belonged to the locality of Virginia, which arrogated to itself the privilege of articulating “a moral and public order,” and he had seen the results–the brutal Anglican repressions of Baptists and other religious dissenters,

This is among the things that happen when the majority is allowed to define what counts as “odious, bigoted, hateful, [and] ridiculous.” The Baptists of Orange County, Virginia struck the Anglican majority much as Fred Phelps does most Americans now. They were loud, disrespectful, crude, unlettered, emotional, and bellowed endlessly about sin, judgment and hell.

Madison was outvoted in 1787 by New Englanders intent on preserving their religious establishments and Southerners worried about a certain establishment of their own.

But that was not the end of him. The 14th Amendment and the post-New Deal Supreme Court have largely reflected his concerns, making it far more difficult for local majorities to establish tyrannies.

God bless them for that!

avatar Russell Arben Fox March 4, 2011 at 2:39 pm

John, you’re right that Madison was a notable exception–he was the most “modern liberal”–out of all the early Founders, and I think you’re also right about the 14th Amendment and its interpretation by the post-New Deal Supreme Court; in fact, I think it’s wonderful to find someone commenting at Front Porch Republic that recognizes the value and importance of those changes in American constitutional law! I wouldn’t want to overturn them, but I would want to qualify them. Would you agree that an aggressive and absolutist defense of individual liberty can become an impediment to communities establishing (democratically establishing, let’s stipulate that) even fairly liberal and tolerant standards of behavior? If so, then we agree, and we’re down to making judgment calls. I think, along with Alito, that individuals ought to have the power to articulate a general sensibility about the integrity of funerals, and thus force away and deter those who would mock them. Do you think that is a power that favors majorities too much, or do you think it fits in with a proper balance between individual liberty and community governance? I think that latter, obviously; would you disagree?

avatar John Haas March 4, 2011 at 3:40 pm

“I think, along with Alito, that individuals ought to have the power to articulate a general sensibility about the integrity of funerals, and thus force away and deter those who would mock them.”

I’m not immune to that consideration. It is attractive and desirable, when stated like that. But there are many things some among us would like to have “the power to articulate a general sensibility about the integrity of.” Fourth of July parades, eg, or the limits of free speech during war-time, or the sartorial choices of women in public places, or the racial aspects of marriage.

But then, there’s this:

“Would you agree that an aggressive and absolutist defense of individual liberty can become an impediment to communities establishing (democratically establishing, let’s stipulate that) even fairly liberal and tolerant standards of behavior?”

Yes, but, first, I’m not convinced we have, in Snyder, “an aggressive and absolutist defense of individual liberty.” The Phelpses were and continue to be bound by local ordinances determining where they can hold their demonstrations. They are not allowed to come into the funeral home itself (nor are they banished entirely from the vicinity). The Supreme Court did not strike down these restraints; had they done so, “aggressive and absolutist” would be justified.

(The question of vicinity is, by the way, more complex than is often realized; as Epstein says in the NYT discussion of the case, “the emotional impact of the church’s conduct could have been horrendous even if it had been done a 1,000 miles away.”)

Second, I believe we do have, in Snyder, an articulation of “fairly liberal and tolerant standards of behavior.”

The Phelpses were not granted carte blanche heckling rights. The nature of the speech in question determined the outcome of the decision. As Roberts wrote, “Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials.”

That “matters of public import” makes is most crucial here.

In this case, the Court did not just find for the Phelpses. it found for anyone who may have an unpopular take on a matter of public import.

More than that, it found for all those communities–local, state, national–who are engaged in or complicit with actions and policies of public import, and ensured that they would continue to be exposed to unpopular judgments regarding those policies.

avatar mushrooom March 4, 2011 at 4:06 pm

Thank you, Dr. Fox, for the correction and mitigation of my initial overstatement.

JH said, In this case, the Court did not just find for the Phelpses. it found for anyone who may have an unpopular take on a matter of public import.

I agree.

avatar sdf March 4, 2011 at 4:26 pm

The simplest solution is to withdraw police protection from these self-aggrandizing a-holes.

avatar John Gorentz March 5, 2011 at 9:54 am

As for the founding fathers, some of them had a personality disorder like Russell Arben Fox’s and passed the Alien and Sedition acts. It boomeranged on them in the 1800 elections and they lost. A few years later the side that won in 1800 tried to put down free speech on the other side, again using rhetoric that is amazingly similar to Fox’s. In the Baltimore riots of 1812, the law enforcement authorities did exactly as sdf recommends. But again, this boomeranged on the anti-free-speechers, and instead of uniting the country on their side they lost ground in the fall elections.

avatar John Haas March 5, 2011 at 12:39 pm

I honestly don’t think it’s fair, correct, or helpful to start talking of “personality disorders.”

The fact is, there are truly difficult issues at play here. And by “difficult,” I don’t just mean intellectually difficult. I mean, whichever way we decide, there will be real losses–observable social consequences of the negative kind, as it were.

Mr. Fox wants to defend the right and ability of communities to establish, democratically, liberal and tolerant standards of behavior. I do too. (The alternative is anarcho-capitalism, a Nietzschean world of hierarchy, power and un-limited exploitation.)

As he says, once we’ve agreed on that, it gets down to cases.

In this case, you can focus on either side of the coin. You can say,”These are crude, selfish, possibly insincere, self-promoters who have chosen a cheap and easy and horrifically insensitive way to get attention–protesting at funerals of young men and women who died too early, resulting in immeasurable added grief to the families of the fallen. A civilized society should have the power to protect grieving families from that kind of unwarranted emotional abuse at such a sensitive time.”

If that’s part of Mr. Fox’s position, I agree with him–that is an admirable and rational goal for a society to hold.

But I still agree with the court, and that’s because in this case, I’m more concerned with the other side of the coin, with the rights of dissenters to speak their uncomfortable words, and the rights (even if unwanted) of communities to hear those words.

I’m sure Mr. Fox cares about those things too. These are not mutually exclusive “goods” we are desiring. They are goods that on occasion are in tension, sometimes, as here, profound and painful tension.

Mr. Fox has no desire to squelch free speech. I’m sure he is fine with the Phelps clan saying whatever it wants to say–just not right at the funeral.

I absolutely sympathize. But I’m going to come down on the side that says, when speech is about something as important as war, public policy, morals,divine judgment, etc., we all should want to be very careful about protecting it.

As for the Sedition Act of 1798 and the mob-actions against Federalist opponents of the War of 1812, these were not shining examples of virtue, by any means. But as Gordon Wood has shown, our notion of free speech developed in tandem with the rise of political parties and the concomitant assumption that there could be such a thing as a loyal opposition. In the early republic, all those things were in flux (and that flux, to be sure, was capable of being turned to political advantage).

But that’s not what we’re dealing with here. This isn’t even Ari Fleischer’s “people need to watch what they say,” much less John Ashcroft’s “Operation TIPS.”

At least, not right now. Would such attitudes be strengthened with judicial support the next time we decide to go all hysterical, had the decision gone the other way?

Absolutely. Hence the importance of this case, and hence my gratitude for the decision.

But, as I said, their is a real loss here–a price, as it were. Civility, decorum, even sanity, if you wish, have taken a hit. But it’s a small one–it’s not like Phelps has established any new paradigms.

It is unequally born by the families of the fallen, and that’s part of the tragedy. I only can hope that they, too, will come to take pride in their service and sacrifice in this area also.

avatar John Gorentz March 5, 2011 at 1:28 pm

I disagree about the subject of personality disorders. I think there is a personality type that tends to be more controlling, that where the wheel hits the road is instinctively going to come down on the side of control, and that if we understood it better we might be able to understand our history and to deal with these conflicts a little better. But I don’t really understand it as well as I wish I did. My hunch is that these issues are not so much a matter of philosophy, or even of socio-economic class, but of personality attributes. Note how on this issue some of both left and right are coming down on the sames of the issue. I wish there was funding for psychologists to do research on the phenomenon as it applies to public life. So I would argue that by raising the topic, I am making a helpful contribution to our public discourse. I am doing my tiny part to raise consciousness about the phenomenon and support further study of it.

avatar John Gorentz March 5, 2011 at 1:31 pm

BTW, Mr. Haas, thank you for the reference to Gordon Wood. I’m going to go looking for something of his to read.

avatar John Gorentz March 5, 2011 at 1:45 pm

Ha. I see that Gordon Wood’s latest book (Empire of Liberty) is one that I had been listening to on my smartphone last fall. The author’s name hadn’t meant anything to me, but I recognized the title. I have some other books on the early American Republic that are also good, but which I’ve disciplined myself to put aside until bicycle commuting season begins again. (I listen to audio books while riding.)

I realize my obsession with personality types does not seem to match well with my failure to keep track of the authors of what I’m reading.

avatar John Haas March 5, 2011 at 2:11 pm

John, I don’t disagree at all with this: “I think there is a personality type that tends to be more controlling, that where the wheel hits the road is instinctively going to come down on the side of control, and that if we understood it better we might be able to understand our history and to deal with these conflicts a little better.”

You’re absolutely right–it’s there, it tends to be attracted to politics (of course), and it also expresses itself on the other side–the personality-type that wants to be controlled, that only feels safe when there are firm, unambiguous rules that mandate unity and hierarchy. These folks often find themselves attracted to the military, but they are also attracted to domineering politicians who will affirm their sense of being, say, “real Americans,” and who will persecute in some way those who are “false Americans.”

But, and it’s a big but, that doesn’t mean every expression of concern for community, order, public safety, civility, what have you is an expression of that personality type. I really don’t think that’s what Mr. Fox is doing here, at least. I even doubt that’s where Justice Alito is coming from, in this instance.

I think I’ve made my case for why we don’t need to “go there”above, but, in general, I think we need very good reasons to impute such motives to someone.

I agree with you on this, though: If a public figure is, in fact, operating from such motives, it is not unhelpful to know that.

The problem is,of course, that even controlling individuals are capable of making rational and persuasive arguments, and if those arguments do hold water, then the fact that they’re being advanced by individuals with certain attractions and motives might actually be immaterial.

It would be analogous to a rabid dog being shot by an inveterate dog-hater. Sure the fellow may hate dogs, but if the dog was rabid, was a threat to public safety, and he shot it for those reasons (and isn’t prone to shoot dogs that aren’t rabid and threats), then his dog-hating isn’t the most important thing to reckon with in analyzing his action.

If you can get a hold of Wood’s REVOLUTIONARY CHARACTERS (wonderful book, btw) he has a concluding essay, “The Founders and the Creation of modern public Opinion,” where he deals, very clearly and succinctly, with the topic of sedition and public order and how it was perceived in the 1790s and immediately beyond (esp. pp. 267-71).

Just to tantalize anyone who hasn’t read the essay, here’s a snippet: “The debate over the Sedition Act marked the crucial turning point in the democratization of American intellectual life. It fundamentally altered America’s understanding not only of its intellectual leadership but of its conception of public truth.”

I’ll leave it at that, as this fantastic essay really should be read in its entirety by anyone interested in these questions.

avatar Russell Arben Fox March 5, 2011 at 8:33 pm

I didn’t care for Mr. Gorentz’s allegation that my arguments prove I suffer from a personality disorder, and I appreciated Mr. Haas’s sympathetic elaboration of my position. But more than both of those, I want to tip my hat to both these gentlemen for taking a disagreement and turning it into an intelligent, thought-provoking exchange. Kudos to you both; would that all exchanges in blog comments developed in a similar direction!

avatar Matthew Nelson March 6, 2011 at 9:41 am

The debate over the result of the Westboro case begs the larger question of why should Supreme Court, and not the several States, should get to decide the peculiar contours of the Right to Free Speech? Indeed, the ratifiers of the Bill of Rights were very much aware that no absolute right to say anything, anywhere, at anytime is possible in a free and well-ordered society. And they were right. Moreover, in the plain language of the First Amendment, they wisely dedicated the task of regulating speech to the political processes of the several States–”Congress shall make no law….”

So, what I want to know is, when did we repeal the First Amendment? I see nothing in the Fourteen Amendment that transfers authority to the Supreme Court to define freedom of speech.

avatar Russell Arben Fox March 6, 2011 at 10:29 am

The issue isn’t the Fourteenth Amendment, Matthew; the issue is the power of judicial review, which has expanded and contracted at different times over the years, but which really hasn’t been fundamentally challenged (at least not with any success) since John Marshall first articulated it in Marbury v. Madison long ago. Under constitutional law as it has evolved in this country, the Supreme Court gets to decide what the Constitution means–not local communities, not states, not even the national government. The Fourteenth Amendment didn’t automatically result in the SC striking down various state speech laws; the striking down, and close defining, of state speech laws began when the SC decided to start doing so, because judicial review meant they could. The 14th was just one of the tools which they used to claim authority; the act of claiming itself is much older and much more deeply embedded in our constitutional order.

Which is why I’d really like to see judicial review reigned in, as I say in the piece I link to above. I’m not holding my breath, however.

avatar John Haas March 6, 2011 at 3:42 pm

“why should Supreme Court, and not the several States, should get to decide the peculiar contours of the Right to Free Speech? … the ratifiers … wisely dedicated the task of regulating speech to the political processes of the several States.”

This would only count as “wisdom” if you hold that, in fact, the right to speak is not a natural right at all, but purely the consequence of positive law; or, if you hold that “human nature” or the character of persons somehow varies from state to state and, indeed, is determined or influenced by residence in a given state.

If, on the other hand, you believe that human beings have a “nature” or character that precedes the claims of any state, and that states need to respect that nature, then you will likely agree with Jefferson that the liberty to think, to form opinions, and to speak are among the “unalienable Rights” which “men” qua “men” retain, the pretensions of any state to regulate and restrain them notwithstanding.

If you do happen to believe that speaking is a natural right, but that, for prudential reasons, the limitations that need to be placed on it are best left up to the fifty states–or, perhaps, to the innumerable localities within them–you could choose no better way of undermining the conviction that it is a natural right than to institute a cacophony of conflicting regulations thereof.

avatar Siarlys Jenkins June 16, 2011 at 10:36 pm

Judicial review was first set forth in The Federalist Papers starting at No. 48 and appearing in various references for the next ten or so numbers. A legislative act that is in violation of the constitution is null and void, or there is no constitution at all in any practical sense. Some body has to be able to declare the act null and void.

The limitation is that the court must have a sound and specific constitutional basis for the finding of a violation.

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