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Fruits and Nuts

Free speech has to apply to nauseating bad taste, or it isn't free.

By Hobbes  |  November 2, 2007

(CNN) -- A federal jury in Baltimore, Maryland, Wednesday awarded $10.9 million to a father of a Marine whose funeral was picketed by members of a fundamentalist church carrying signs blaming soldiers' deaths on America's tolerance of homosexuals.

There are enough explosive issues in this one news item to send a probe to Uranus.  To briefly sum up, the Rev. Fred Phelps and his Westboro Baptist Church believes that God finds homosexuality to be an abomination - as, indeed, the Bible does actually say.  Our nation, in contrast, no longer feels it to be such - indeed, it is becoming more and more illegal to discriminate against homosexuals in any way.

Therefore, according to the Rev. Phelps, God's judgment is upon the United States, as illustrated by Hurricane Katrina, 9-11, and all manner of other misfortunes up to and including the deaths of our soldiers in Iraq.

Of course, as bad as things may be, they can certainly get a lot worse; all these events are warning signs to us of the wrath to come.  With that in mind, the good reverend and his flock regularly appear at military funerals, applauding the deaths of the soldiers - as a (so far ineffective) warning to us to repent from our evil ways.

It's hard to know exactly where to begin in condemning this.  Even if we were to accept this view of homosexuality, God's view on the subject, and His likely response to it, surely it is hardly the fault of the soldiers, much less their grieving families.  A more nauseating, reprehensible, and counterproductive demonstration of stupidity would be hard to find.

And that's precisely why this court ruling is so appalling. Rev. Phelps' protests are disgusting and vile in every way - but in no way are they an incitement to violence.  He is not personally threatening any attack on families, soldiers, or even homosexuals, nor is he inciting others to do so (aside from God, Who in this context doesn't count.)  The statements and actions of the Westboro Baptist Church are precisely the sort of offensive, unpopular, marginal viewpoint that the First Amendment was designed from Day One to protect.

For a long time now, the KKK has freely performed marches in favor of their racist views.  Fifty years ago, these marches were large.  Violence ensued - and, increasingly, the perpetrators of violence were arrested, tried, and imprisoned for their crimes, as they should be.

Now, KKK marches tend to be very small, with the hooded nuts vastly outnumbered by protective police, who are in turn vastly outnumbered by counter-protesters decrying their hate.  Again, all those who commit violence are swiftly and rightly punished for it - but the expression of an opinion, as long as it is not accompanied by violence nor is directly calling for it, is protected.

Someday, we hope, there will be no more KKK marches, because there will be no KKK.  Not because all its members have been imprisoned for their views - the history of civilization shows that there is no better way to grow a niche group into a major force, than by making martyrs out of its leaders.  But when nutty views have the right and ability to stand on their own in the free marketplace of ideas, the free marketplace of ideas will peacefully but thoroughly consign them to the back alleys of public discourse, until they die a natural death of discouragement

If free speech is available only to popular views, then there is no free speech at all.  If a jury calls for damages because statements are offensive, then we are fast on the road to censorship of unpopular views, and that road leads where few of us really want to go.  As Justice Brandeis taught decades ago, the best response to bad speech is more speech, not censorship.

Now, it can be said that there was no censorship of their views - they are free to say whatever they like, as long as they cough up the $10.9 million or so in damages every time.  This is ludicrous on its face; again, it leads directly to free speech for the rich, and sullen silence for everyone else.  Do we really wish to be a society where freedom of the press is available only to someone who owns one?

The lawsuit argued that the family of Lance Cpl. Matthew A. Snyder had suffered invasion of privacy and infliction of emotional distress.  Doubtless this is absolutely true; but on what possible grounds can a legal award be made?  A graveyard, or at least the street outside, is a public place; speech can be unpleasant, offensive, even repellent, and yet still be free.

In fact the family of the dead soldier, including his father Albert Snyder who filed the lawsuit, never saw the protesters or their signs at the funeral - he only viewed them afterwards, on the TV news that evening.  So should the TV station be a co-defendant for "inflicting emotional distress"?

Rev. Phelps plans to appeal the ruling, and believes it will "take about five minutes to reverse that thing."  All Americans should be in full agreement with him on this point, if on nothing else, as we hope this verdict goes to where the sun don't shine.