WARNING NOTED — AND PROTECTED*
At the margins of Utah PRIDE 2018
Congress shall make no law . . . abridging the freedom of speech . . . .
Protecting the margins at Utah PRIDE 2018
Hate speech is nothing new. It has seen a resurgence. This week we heard what some classify hate speech. The Muslim Brotherhood coupling with inhabitants of the Planet of the Apes. Offensive to some. Feckless cunts. Offensive to others. Protected speech? Maybe not in corporate America. The issue is not so much whether particular speech offends but whether government can (or can be used to) suppress or censor speech on the margins.
The Speech Clause encompasses wondrously simple ideas to assure and preserve self-governance in an ordered society: severe restrictions on government’s ability to interfere with or impair transparency, a free market and open exchange of ideas, assemblage, religious belief and practice. As with most constitutional provisions those rights and the government’s restrictions on impairing those rights are not absolute and the United States Supreme Court often serves as the final arbiter on where the lines are drawn.
The few words that comprise the First Amendment have generated some of the most rigorous, divisive and consequential debates in American jurisprudence.
Even our newly sainted former Supreme Court Justice Scalia defended the First Amendment’s role in protecting unpopular speech (popular speech does not face government oppression):
“The first axiom of the First Amendment is this: As a general rule, the state has no power to ban speech on the basis of its content.”
“The point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.”
The United States Supreme Court decided Snyder v. Phelps in 2010 in favor of Phelps who, along with his Westboro Baptist Church, protested at military funerals about the sinful tolerance of homosexuality in the United States, particularly in the military. Near the funeral for Matthew Snyder, slain in the Iraq war, Phelps and his ilk held signs declaring “God Hates Fags,” “Thank God for Dead Soldiers,” “God Hates the USA/Thank God for 9/11,” “Don’t Pray for the USA.” Albert Snyder, the slain soldier’s father, sued Phelps and was awarded more than $10 million by a jury for Phelps’ outrageous, offensive speech near and during Matthew’s memorial service. The judge later reduced the award to $5 million. The Fourth Circuit Court of Appeals reversed the decision holding that this clearly offensive speech was protected by the First Amendment.
The ACLU submitted an amicus (friend of the court) brief to the United States Supreme Court in favor of protecting speech, especially speech on the margins. The ACLU Executive Director Steve Shapiro told NPR:
“The First Amendment really was designed to protect a debate at the fringes. You don’t need the courts to protect speech that everybody agrees with, because that speech will be tolerated. You need a First Amendment to protect speech that people regard as intolerable or outrageous or offensive — because that is when the majority will wield its power to censor or suppress, and we have a First Amendment to prevent the government from doing that.”
The Supreme Court held that a jury’s finding of outrageousness could not overcome the special protection afforded the speech under the First Amendment. Seven justices concurred in the majority decision, authored by Chief Justice John Roberts. Chief Justice Roberts concluded that other facts that could have taken the picketing outside First Amendment protection were not present.
Justice Alito, the lone dissenter, said what many people believe:
“Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case. . . . In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.”
A feckless analysis, in my view. Trump would likely agree unless, of course, someone calls his daughter a feckless cunt. But truth is a defense in a defamation case and parody enjoys First Amendment protection. Take your pick.
Political speech enjoys the highest level of protection under the First Amendment. The Court imposes a high constitutional standard to give “breathing space” to the political process. In order to ensure debate is “uninhibited, robust, and wide open,” the Court established a very difficult standard for public officials and public figures to meet in order to recover for libel or slander. In a unanimous 1964 decision the United States Supreme Court ruled in favor of the “failing” New York Times, holding that a “public official” must show that the newspaper acted “with ‘actual malice’ — that is, with actual knowledge that it was false or with reckless disregard” for truth. “[A] little falsehood must be tolerated so that citizens will not engage in self-censorship for fear of criminal prosecution or a ruinous civil suit.”
As it should the First Amendment protects various forms and types of speech, particularly in the political realm, such as opinion, fair comment and criticism and parody and satire which blur the lines between truth and outrageousness. See Hustler v. Falwell, for which we all owe that smut peddler who spewed verbal sewage Larry Flynt (not to be confused with Jerry Falwell) an extreme debt of gratitude for championing First Amendment rights after he parodied Jerry Falwell’s first sexual experience. As offensive as that was to many, including Mr. Falwell whose feelings were hurt — along with his mother’s I suspect, and possibly a goat’s — mocking leaders and political figures is an important form of dialogue that enjoys First Amendment protection.
The current White House is the most target-rich location in the world. Deservedly.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com