Thursday, October 14, 2010

When words assault

Hadley Arkes explains how the Supreme Court went astray in its interpretation of the First Amendment in the 1970s [read it all here]:
In a legendary case of the late 1970’s, a small band of self-styled “Nazis” sought to march through Skokie, Illinois, a suburban town with many Jews who had survived the Holocaust. David Hamlin of the ACLU declared at the time that the First Amendment protected all kinds of speech regardless of whether it was “popular or despised.” The translation was unmistakable: What was “despised” was that which was unpopular or hated. What was ruled out was that certain things were despised because they were in point of principle “despicable.”

Now we are finding the same translation provided again even by conservative writers and jurists. The case at hand involves the antics of the Rev. Fred Phelps and a contingent from the Westboro Baptist Church in Topeka, Kansas. In 2006 they were alerted to the funeral of young Matthew Snyder, 20, a Marine lance corporal who had died in Iraq. Phelps and his crew, ever ready to broadcast their message, made it a point to show up at St. John’s Catholic Church in Westminster, Maryland, the site of the funeral. They came with signs saying “Semper fi fags,” “Thank God for dead soldiers,” and decrying the “pedophile machine” of the “Roman Catholic monstrosity.” The editors of the Wall Street Journal pronounced Phelps and his band “scoundrels,” their message “despicable.” And yet the translation was made again: The editors seem inclined to think Phelps nevertheless had a “right” to engage in despicable performative acts because there are no grounds on which the law can really discriminate between the “despicable” and the “unlikable.”

But the law was not always thought to be so wanting in the standards of judgment, and the judges expounding the law were not compelled to absorb, ever more deeply with each case, the premises of moral relativism. Until the 1970’s the cases on speech, and the harms inflicted through speech, were governed by the classic case of Chaplinsky v. New Hampshire (1942). Justice Frank Murphy observed in that case that certain well-defined and narrowly focused classes of speech have never been given protection under the Constitution. As he wrote in a famous passage:
These [classes of speech] include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [Italics added]
But in the early 1970’s this understanding was truncated and largely displaced in favor of a view the judges regarded as far more sophisticated and in tune with the times. .... [much more]
Swastikas, Burning Crosses, and “God Hates Fags” « Public Discourse