Media, Politics

Analysis: The true test of freedom of speech – speech most foul

By Sipho Hlongwane 9 March 2011

“The Most Hated Family in America” can continue to picket at the funerals of soldiers, the US Supreme Court has ruled. The decision underscores the point that in a free society, legislating against obnoxious opinions – and, make no mistake, WBC’s views are seen as most foul – is never a solution. How prescient, given South Africa’s seemingly unsolvable struggles over race. By SIPHO HLONGWANE.

In an eight-to-one majority, the US Supreme Court ruled the First Amendment protected the Westboro Baptist Church’s right to protest at military funerals.

Writing for the majority, Chief Justice John Roberts said, “Westboro Baptist Church’s picketing at fallen soldiers’ funerals is certainly hurtful and its contribution to public discourse may be negligible.

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. But under the First Amendment, we cannot react to that pain by punishing the speaker.

“As a nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate,” Roberts said.

The case against WBC had been brought in 2006 by the family of Marine Lance Corporal Matthew Snyder, who had been killed in Iraq. The fringe cult protested at his funeral, holding up signs which celebrated the soldier’s death as divine justice for America’s tolerance of homosexuality. WBC has so far picketed at more than 600 funerals across the US.

The WBC doesn’t limit itself to the funerals of US servicemen and women. In January, they threatened to picket at the funerals of the victims of the Tucson, Arizona, shootings and only relented after the state legislature passed a law banning protests within 100m of the funeral and after a radio DJ promised them airtime. Apparently everything from tornadoes to an unhinged gunman killing a nine-year-old girl at a public meeting to dead soldiers are signs of God’s wrath on a sinful, gay-tolerant America, according to the WBC. Not only that, but they find it is their divine duty to crow in the faces of mourners at any and every opportunity. The extended family that makes up WBC, led by the cantankerous Fred Phelps, are by any measure a rank group.

But having a poisonous opinion is not reason enough for the US Supreme Court to withhold the protection of the First Amendment.

Reactions to the judgment ranged from outrage to appalled. In an opinion column for The New York Times, Stanley Fish noted in its insistence on coming down heavily on the side of individual freedom as opposed to balancing this with the feelings of a community, as they would have done in Europe (or indeed South Africa), the Supreme Court failed to give enough weight to the harm that words can inflict. “This [judgment] is of course the traditional view as encapsulated in the familiar proverb ‘sticks and stones will break your bones, but names will never hurt you’,” Fish wrote.

“The problem with this ditty is that it is false; names, libels, lies, defamatory statements and harangues do hurt, and, moreover, the hurt they inflict — extending sometimes to measurable physical distress — is often what those who utter them are most invested in.

“That is, or should be, the question in this case: Is the expression of opinion primary and the pain just collateral damage; or is the damage what is desired and expression merely its vehicle?” asked Fisher.

The Supreme Court’s decision was not unanimous, of course. Justice Samuel Alito wrote the dissenting opinion. He said the First Amendment didn’t, in fact, protect the rights of the church to ruin a funeral.

The family had “an elementary right to bury their son in peace,” Alito said. The church had no right to launch “a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” Alito said.

Writing in a letter to The Washington Post editor, Robert Fontaine said, “I seriously doubt that the Founding Fathers intended to protect such vile, hateful rhetoric – particularly in the course of such a solemn rite as a funeral.

“To suggest that a funeral can be treated as a public forum for ‘a matter of public concern’ is ludicrous. It is, or at least should be, a private, dignified event that affords families and friends a final moment to honour and say goodbye to a loved one. The court has shredded that dignity,” he said.

The American debate mirrors, if under less tragic circumstances, South Africa’s debate around the ‘Shoot the Boer’ song, and of late the issue of racial stereotyping, brought to the fore by a column in the Sunday World by Kuli Roberts. It was later judged to have been a wayward attempt at satire, but the immediate outrage, spearheaded by City Press editor Ferial Haffajee, was massive. Roberts subsequently lost her column, raising the question of whether offense was enough to silence her voice.

The brutal and often unpalatable truth is that freedom of expression extends to even the extremists. Rational countries will write laws that limit the extent of that freedom (one extreme of this: fashion designer John Galliano must face a Paris court on charges of anti-Semitism), and perhaps the US Supreme Court should have more carefully considered the feelings of affected communities in its judgment. But merely saying reprehensible things should not be legislated against.

To paraphrase Voltaire, we don’t truly believe in freedom of speech until we champion it for those with whom we disagree, no matter how insane they are. DM

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Photo: A Westboro Baptist Church member protests during the funeral for Elizabeth Edwards in Raleigh, North Carolina on December 11, 2010. Members of various groups opposed to the church have rallied to create a “human buffer” to shield the Edwards family from the church’s demonstration against Elizabeth Edwards, blaming her for her own death and that of her late son Wade, according to local media. The Topeka, Kansas-based church is headed by founder Rev. Chris Phelps and has recently picketed funerals of fallen U.S. military personnel. REUTERS/Chris Keane


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