Thursday, March 3, 2011

A Commons View of Free Speech

The Supreme Court issued a very important ruling about free speech yesterday, stating that the First Amendment protects hateful protests at military funerals. The case arose from a protest at the funeral of a Marine who had died in Iraq, Lance Cpl. Matthew A. Snyder. As they had at hundreds of other funerals, members of the Westboro Baptist Church of Topeka, Kan., appeared with signs bearing messages like “America is Doomed” and “God Hates Fags.” The church contends that God is punishing the United States for its tolerance of homosexuality.

The 8-1 decision reflected an interesting alliance of conservative and liberal judges against the minority opinion of another conservative judge, Justice Alito. 

Many will decry this ruling and many others will celebrate it as a victory for free speech.  Certainly what has to be kept in mind is that the law is tested in its ability to protect people who are not at all likeable and who do horrible things to other people. 

This most recent ruling in favor the Westboro Baptist Church is reminiscent to the 1977 decision to allow members of the Nazi Party of America to march in Skokie, IL, a suburb of Chicago which at the time was predominantly Jewish and was home to more than 5,000 Holocaust survivors. The plan was for the marchers to wear uniforms similar to those worn by the members of Hitler's Nazi Party, including swastika armbands, and to carry a party banner bearing a large swastika. The residents of Skokie sought an injunction against the marchers on the grounds that the march would incite violence.  The ACLU defended the Nazis (which cost them hundreds of donors, including many major donors) and won.  (Ultimately the Nazi party did not march in Skokie, but instead marched in downtown Chicago.) 

The right to remain silent and the obligation of the police to “Mirandize” suspects comes from a ruling in a case of Ernesto Miranda.  1963, Miranda was arrested for the armed robbery of a bank worker.  While in custody of police, Miranda -- who had a record for armed robbery, attempted rape, assault and burglary -- signed a written confession to the armed robbery. He also confessed to kidnapping and raping an 18-year-old girl 11 days prior to the robbery.  Miranda was convicted of the armed robbery, but his attorneys appealed the case on the grounds that Miranda did not understand that he had the right against self-incrimination.  When the Supreme Court made its landmark Miranda ruling in 1966, Ernesto Miranda's conviction was overturned. Prosecutors later retried the case, using evidence other than his confession, and he was convicted again and served 11 years in prison. (Ironically, Miranda was killed in a bar fight in 1976 at the age of 34.  A suspect was arrested, invoked his right to remain silent, and was later released without being charged. )

As any school child knows, there are limits to free speech.  You cannot say something that has a predictable result, such as yelling “fire” in a crowded theater.  You cannot threaten to kill the President.  But for the most part people and organizations are free to say what they want in public places. 

It is too easy to say that in a commons based society we wouldn’t have rapists, murderers and vitriolic hate-mongers.  Certainly Scandinavian countries are dealing with frightening and racist anti-immigrant and anti-Muslim organizations and individuals.  Figuring out a commons approach to free speech is a vigorous conversation about what it is, so that we all understand the Court’s decision.   Then we need another conversation about the increase in hate speech and hate mongering that is happening in our public spaces – including on the internet and in video games – and what we are going to do about it.

In the meantime, though, as Justice Louis Brandeis once explained, the Framers of our First Amendment knew "that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones."

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