Tuesday, November 06, 2007

Freedome of Speech Does Not Speech Free of Consequences.

I think one of the more interesting items to come out of my views on the Maryland funeral case was the realization that although people claim to believe in free speech, there are a number of people who don't really get it.

I believe that what the Westboro Church was doind was free speech, as dispicable and deplorable as it was. But the fact of the matter is, they have a right to their views and their speech. And, like it or not, this is a case that is likely to end up on the Supreme Court docket and there is a chance that a lot of people are not going to like the result, including the Snyder family. I got two comments on my original post and a couple of nasty emails and I thought it worth addressing a few points.

First, Darren, a blog friend who is also a former military officer noted that reasonable time, place and manner restrictions are permitted on speech and he is absolutely correct. But here is the thing that is missing from all this discussion. The protesters were some 1,000 feet from the funeral on public land. A number of states have laws on the books (Maryland does not from what I have found in an admittedly cursory search), that prohibit any protesting of any type within a certain distace of a funeral for a period of time before or after a funeral. Such laws will essentially be challenged by this case. And as Michael Dorf writes, the laws are likely to be upheld. But a court is going to have to decide how far is reasonable. Thus the crux of the matter.

The Ridger, FCD said that this is not a free speech issue, noting "Your right to free speech doesn't come with a right to go anywhere you want in order to talk." Again, this is like the matter Darren brings up. There are reasonable restrictions on time, place and manner. But the line is fuzzy and hard to discern, especially when it comes to political speech (and like it or not Westboro's speech is political in nature). But inherent in teh freedom of speech is the right to do it where you choose. While the government can impose certain restrictions on the time, place and manner of your speech, it cannot ban it. And if the time, place and manner restrictions are so onerous as to effectively silence your chosen speech or the restrictions so take away your intended audience, then those restrictions are likely to be unconstitutional. So, if a state said groups cannot protest a military funeral like the Snyder's funeral for two days before and two days after the event--that would be too onerous. Freedom of speech implies a certain freedom to be heard. That doesn't mean I have to listen, but I have to allow you to be heard and the government has the same duty.

One emailer clearly has not read this blog to get even a feeling for my views on freedom of speech. This right, above all others, I hold most dear. Sometimes, believing in an ideal makes it really hard to accept that some practitinoers of that right still deserve protection. This emailer, who shall remain anonymous, likened my protection of Westboro as an endorsement of their views. This could not be further from the truth. I don't like the KKK, but I will protect their right to speak. I don't protect their right to harm, threaten or intimidate people. Similarly with Westboro, I don't like their politics and I think their views on the Bible and American policy are narrow-minded and bigoted, but they have a right to their opinions and a right to express them.

But lost on this emailer was an important point and one that I think too many free speech advocates on both sides of the political spectrum forget. Free speech means that you have a right to say what you think, and it is a right that I will defend wtih every fiber in my being. However, free speech does not mean speech free of consequences. Speech can and often does carry consequences, which is why I think that the Snyder case on appeal will actually be a split decision. The Appeals Court will probably say that the damage award for intentional infliction of emotional distress will likely be affirmed, but that shall be the only basis for the award. Westboro will be vindicated in their right to speak their message, but they will not be allowed to speak without consquences.

This important point is lost on many Americans when it comes to our rights. Rights and responsibilities are two sides of the same coin. One cannot expect to exercise a right and then shuck the responsibility that comes with those words. Westboro has a bigoted message, a message that they can speak and have a right to speak, but with that right comes responsibilities and you cannot escape the consequences of your speech by wrapping yourself in the cloak of the First Amendment.