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The burden of Free Speech
Posted at: Oct/05/2010 : Posted by: mel
Related Category: The Law,
I know; Free Speech seems like an obvious and totally understood subject. It is the fall of 2010 and the Supreme Court is getting ready to hear the case of Snyder vs Westboro Baptist Church. The Westboro Baptist Church has made a name for itself going around the country picketing at military funerals with the message that the soldiers’ deaths are divine punishment for America’s tolerance of homosexuality. Under the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.” Over the years a lot of case law has been formed analyzing and defining these words. Current case law gives the following situations where Free Speech might be subject to scrutiny. Some of the major categories include: • Political Speech • Expressive conduct • Adult entertainment • Speech that may endanger others • Advocacy of violent political overthrow Political speech is heavily regulated with respect to campaign finance laws and laws about slander or defamation. For the most part though, it is protected even if the content is not always popular. Any restrictions placed upon political speech must pass the judicial review call “Strict Scrutiny”. If a law tries to ban the content of speech, it has to meet all three aspects of the strict scrutiny analysis: 1.) There must be a compelling government interest in prohibiting the speech. 2.) A law must be very narrowly tailored to achieve that interest 3.) And the law or policy must be the least restrictive possible in order to achieve that interest. The next type of speech is Expressive Content. For the most part, wearing an expressive t-shirts, and carrying banners or signs are all protected forms of speech. There are some notable exceptions such as the classic yelling “Fire” in a crowded theater when there is no fire, because this speech endangers lives. Generally, though, expressive conduct is guided by “Time, Place and Manner” restrictions that require: • Prohibitive legislation or policy be “content neutral”, that is it can’t be used to suppress a particular idea, and must be applied to all speakers (or wearers) equally • Policy or law must be “narrowly tailored” to achieve “significant government interest” • That government interest cannot be to suppress an idea • And that other avenues of expressing the viewpoint must be available Flag burning is considered “symbolic free speech”, however distasteful some may find it. Communities could create general arson laws prohibiting it, but only if it was applied across the board to burning anything. T-shirts worn in public can say just about anything, but t-shirts worn in public schools can be regulated because schools have a compelling interest in maintaining order. Adult entertainment typically refers to pornography, defined by Webster’s Dictionary as “writings, pictures, etc. intended primarily to arouse sexual desire.” With the exception of obscenity and child pornography, the First Amendment generally protects all other forms of pornography for adults. Obscenity, and defining it, however, continues to confound courts at all levels. Child pornography is denied first amendment protection even if it does not meet the various obscenity standards, because the state has a compelling interest in preventing the sexual exploitation of minors. Not all speech is protected under the first amendment. Speech that defames, endangers, or incites to violence is prohibited, but there are fine lines in determining actual threats. It’s illegal, for example, to order someone killed. But expressions of sympathy and support for unlawful actions are constitutionally protected. Hate speech also walks a fine line. The government cannot ban it outright, if it’s simply a personal expression of opinion, however possibly heinous to others. But the expression cannot be a direct threat to others. Defamation is another difficult category of speech. It refers to false statements of fact that may harm the reputation of another. It includes both libel, which is written defamation, and slander, which is spoken defamation. Arguments about defamation vary from intent to harm, to the right to protect one’s good name, and can be as difficult to understand as they are to try in a court. As the Supreme Court has explained, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Speech about “Overthrowing the Government” is another interesting category, because being able to question the government, and in some cases replace it, is an underlying principle of the Declaration of Independence. However, the government also has a compelling interest in some self-preservation. So there is no constitutional protection for indoctrination of a group preparing for future violent action against the government, or the teaching of forceful overthrow accompanied by either directions or by a contemporary course of conduct for such overthrow for sedition or overthrow. Sounds complicated but this wording may help. I one Supreme Court ruling the decision included the statement “The essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something.” So it is about what you actually do, verses what you merely talk about. Government suppression of speech can also be justified if the government can advance a compelling reason such as national security to suppress military or strategic information. Effectively, speech in the United States is free as long as it does not harm others, is not a lie, and is not intended to insight sedition. So where does that leave us with the Westboro Baptist Church? Honest I find the words of this little church offensive, repugnant, and insulting, but not illegal. I feel sorrow for Mr. Snyder who had to listen to them in the distance during his son’s funeral, but that does not make their speech illegal. Obviously, the members of this little church do not really appreciate their situation. Corporal Snyder and others like him voluntarily put on the uniform of our country and have died in defense of our National policies including "Free Speech." Whether you believe in the Afghan war or not, Corporal Snyder could have just as easily died in a direct defense of our borders. It is clear in my mind that the funeral was a private event despite being held outdoors and that Mr. Snyder was deprived of the reasonable expectations one would hope for when grieving the loss of a son. If the members of the Westboro Baptist Church feel so strongly that God is punishing America, they are welcome to leave, and disturbing the funeral of one who has sacrificed their life for our country is not the right answer and while technically legal, is an abuse of the rights and laws afforded all Americans. It would be nice to hear from other more mainstream church leaders denouncing the actions and words of this little church.
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