Mar 3, 2011

Snyder v. Phelps

Free speech won, in Snyder v. Phelps. And repulsively evil people won too.

The two are connected. That's the way it works.

Free speech is only free speech if it protects horrible, unacceptable speech.

The right to say acceptable things doesn't need to be protected. It can't just protect artists ahead of their time, and righteous people speaking truth to power. Cretins are the vanguard of the defense of free speech.

Justice Samuel Alito's dissent is mostly an argument that free speech is not limited by prohibitions against defamation. The Westboro Baptists were "Exploitat[ing] a funeral for the purpose of attracting public attention," they "intentionally inflict[ed] severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate." Alito characterizes the horribleness of the Westboro Baptists as brutalizing the dead man, and argues "they maintained that the First Amendment gave them a license to engage in such conduct. They are wrong."

But who decides what is a contribution to public debate?

Legally, defamation is communication published "so as to hurt his good fame." This means it must be: 1) not true, 2) malicious, 3) damaging to his reputation.

Clearly the Westboro Baptist were being malicious. Which is Alito's point. They could have free speeched somewhere else, but it was an important part of their plan to cause pain and outrage. If the Westboro Baptists were to defend against defamation, they'd have to just admit the malicious part.

The reputation part is more questionable, though it seems like the church could successfully argue they didn't damage Snyder's reputation. It wasn't his they were really after, anyway.

The claim of truth would be kind of moot. I'm not sure the truth of those claims could be determined by the court. God couldn't exactly be called to testify about whether or not he hates America and is glad when soldiers die, because he hates homosexuality so much.

Which is probably a good thing for Westboro, since if God could come to court he would be able to file his own defamation claim against the church, since they're bruising and battering his reputation all over the place.