As I sit here on this rainy Oregon afternoon, the funeral for Elizabeth Edwards has just ended. She lost a battle to cancer that was diagnosed the day after her husband was nominated for Vice President on the Kerry ticket in 2004. She chose to support her husband for a Presidential run despite the eventual discovery of his philandering in 2006. Elizabeth Edwards never lost her moral compass. She was never a politician but she was a template for humanity. We should all be so lucky.
But that’s not what this article is about. There is a ‘church’ in Topeka, Kansas that holds some pretty militant views on homosexuality and other topics. They have shown up at funerals of US servicemen to protest. They brought signs that said “God hates Fags” and “Thank God for Dead Soldiers.” They planned to do the same at Elizabeth Edwards’ funeral. Several ordinary citizens arrived in North Carolina to block the Westboro congregation from interrupting the funeral. Gratefully, the protest never materialized.
This article is about the first amendment. Does this small group of people from Topeka have a first amendment right to do such despicable things? Did the whacked-out guy in Florida have a right to burn Qu’rans as a form of protected speech? And what about Julian Assange?
What if Woodward and Bernstein had not leaked information on the decidedly corrupt Nixon administration? What if the Pentagon papers hadn’t exposed the fallacy of the Vietnam War? In regards to WikiLeaks, is Julian Assange guilty of treason or should he be regarded as nothing more than a whistleblower (not that it matters, Sweden appears perfectly content to throw him under the bus for other issues)?
Where does the law draw a line in the sand over the freedom of speech?
Well, this has been tested in court on a few occasions but not as much as you might think. The courts seem more willing to leave the topic open to interpretation than they are on making a decision defining the boundaries of what is free speech and what is not.
The most often cited example is the yelling fire in a theatre scenario. This is a misinterpretation of Justice Holmes rendering of Schneck v. United States from 1919. The key word missing is ‘falsely’. Holmes’ finding was actually based on the ‘clear and present danger’ idiom revolving around recruiting during WWI.
This judgment was actually later overturned in Brandenburg v. Ohio which dealt with the intentional misuse of speech to achieve an outcome, ie: inciting a stampede or riot. The law similarly regards bomb threats and falsely pulling the fire alarm to empty a building . For example, it’s perfectly legitimate to yell ‘fire’ in a crowded theatre if it actually is on fire.
Freedom of expression in the United States was based on several philosophers, many of whom influenced our founders at the birth of the nation; most notably, Thomas Jefferson. They were Locke, Milton , and John Stuart Mill. In ‘On Liberty’ Mill argued that:
“…there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.” Mill further states that the fullest liberty of expression is required to push arguments to their logical limits, rather than the limits of social embarrassment. However, Mill also introduced what is known as the harm principle, in placing the following limitation on free expression: “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
Mill in particular stated that freedom of speech includes,
- the right to seek information and ideas;
- the right to receive information and ideas; and
- the right to impart information and ideas,
whether spoken, in print, or in art (this would influence the foundation of copyright law as well).
So, are there instances that speech can be limited? Yes. I’ve already mentioned one but here they are as follows:
Clear and Present Danger.
Will this act of speech create a dangerous situation? The First Amendment does not protect statements that are uttered to provoke violence or incite illegal action.
Was something said face-to-face that would incite immediate violence?
This one has been the most contentious and challenging. For how do you define obscene? I used to be a staunch advocate of non-censorship of any speech until I had a daughter that liked listening to hip-hop and became concerned with her being influenced by these artists before I had a chance to address with her some of the issues they sing about.
Conflict with Other Legitimate Social or Governmental Interests.
Does the speech conflict with other compelling interests? For example, in times of war, there may be reasons to restrict First Amendment rights because of conflicts with national security.
Time, Place, and Manner.
These regulations of expression are content-neutral. A question to ask: Did the expression occur at a time or place, or did the speaker use a method of communicating, that interferes with a legitimate government interest? For example, distribution of information should not impede the flow of traffic or create excessive noise levels at certain times and in certain places.
Based on the legal criteria, the Westboro Church has the right to voice their opinion, whether I like it or not. You might make the argument that physically protesting at a funeral is an assault. And frankly, this brings up a point I have often thought valid under the time, place, and manner maxim that Mill left out: when is speech welcome? What if I don’t want your opinion? Can you stand in front of my house with a bullhorn and shout your anti-abortion opinions at me all day? At what point does your freedom of speech become an assault?
Did the Qu’ran-burning guy have the right to burn the holy Muslim book? One could argue that inciting violence to our soldiers by Muslims in Afghanistan constituted a clear and present danger, but broadly, yes, he had the right to do that.
And what gives FOX News [sic] the right to report distortions of fact and outright lies? Shouldn’t they be held accountable?
And has Julian Assange committed treason or has he exposed things that we citizens should know about wrongdoing in our government? When is speech a boon to society and when is it a threat to national security? These are often difficult questions to answer. Personally, I think Assange is nothing more than a drama queen looking for attention. He didn’t release anything damaging like details about our military capabilities and weaknesses. He mostly let stuff out that says we think Kim Jong-Il is a nincompoop. Like we didn’t know that already.
He did release the rather disturbing footage of Americans killing civilians in Iraq as though they were characters in a video game. As an American citizen (and a human being), I am outraged by that video. If we’re going to invade a sovereign nation, we need to see stuff like that. We should feel the costs of our actions.
I am no closer to answering the underlying question regarding restriction of speech than the law has been. We must live with people like the Westboro Baptist Church and the Ku Klux Klan and I echo the words of Evelyn Beatrice Hall: “I disapprove of what you say, but I will defend to the death your right to say it.”
- “Why Westboro Baptists Plans to Picket Elizabeth Edwards Funeral Might Fail” and related posts (nymag.com)
- Westboro picketers outnumbered at Elizabeth Edwards funeral – Christian Science Monitor (news.google.com)
- Steven Petrow: Unforgiveable: Westboro Baptist Church to Disrupt Elizabeth Edwards’ Funeral (huffingtonpost.com)
- Loons Plan Protest of Elizabeth Edwards’ Funeral (thehollywoodgossip.com)
- Elizabeth Edwards’ funeral to take place amid possible protests (cnn.com)
- Controversial church to picket Edwards funeral (msnbc.msn.com)