The libertarian take on the Supreme Court’s decision Wednesday in the Westboro Baptist/military funerals case may be boiled down to the old nostrum that we may disagree with what the execrable “Reverend” Fred Phelps and his family say, but we should defend to the death their right to say it.
But is that right?
As the Cato Institute’s Ilya Shapiro notes:
[T]here’s very little to this case and the Phelpses’ actions, ugly and objectionable as they are, are as constitutionally protected as a neo-Nazi parade. If people don’t like that, they can change state laws to put certain further restrictions on protests near funerals or other sensitive areas — or federal laws in the case of military cemeteries — but they shouldn’t be able to sue simply for being offended.
Shapiro’s colleague Roger Pilon adds:
It is a mark of our liberty that in most cases we defend even the most despicable speech. And in that we stand in stark contrast to much of the world.
In truth, we should also defend most (but not all) despicable actions — short of those that violate the rights of others. But at least we defend speech, even though the line between speech and action is not always clear. But here, the Court set forth the issues carefully and correctly, examining the content, form, and context of the speech as revealed by the whole record — none of which is to say that governments cannot regulate the time, place, and manner of speech under content-neutral provisions. But as Chief Justice Roberts concluded, “As a Nation we have chosen … to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
Finally, the Wall Street Journal on Thursday editorializes:
Even jerks are protected by the First Amendment.
Well, yes. Nobody—except perhaps for Justice Alito—would argue with most any of that. But, as Alito points out in his dissenting opinion, merely talking and behaving like a “jerk” isn’t quite what the case was about. In fact, Shapiro and the Journal‘s editors might be altogether too glib in the last analysis.
In fact, I think the late, great H.L. Mencken had Fred Phelps’s number some 60 years before the Supreme Court took notice, and our libertarian friends decided the Westboro Baptist congregation was a cause worth fighting for. Mencken gave a wide-ranging interview with Baltimore Sun colleague Donald H. Kirkley for the Library of Congress shortly before a stroke ended his writing life in 1948. Here’s what the Sage of Baltimore had to say about freedom of speech and freedom of conscience (My emphases in bold type):
Mencken: I get along very well with all kinds of ecclesiastics and all kinds of pious people, because I don’t have any evil conscience in the matter… I assume they’ve got a right to believe anything they please, being an extreme libertarian, and believing in free speech and every other kind of freedom, up to the last limits of the endurable.
I think there is a limit beyond which free speech can’t go, but it’s a limit that’s very seldom mentioned. It’s the point where free speech begins to collide with the right to privacy. I don’t think there are any other conditions to free speech. I’ve got a right to say and believe anything I please, but I haven’t got a right to press it on anybody else.
For example, take for instance the Catholic Church, which I am on good terms with personally but have no belief in whatsoever. I’ve got a right to print my dissent from its doctrines… I’ve exercised that right for many years. But I have no right to go on the cathedral steps on Sunday morning when the Catholics are coming out of high mass and make a speech denouncing them. I don’t think there’s any such right. Nobody’s got a right to be a nuisance to his neighbors…
Kirkley: Or to hurt his neighbors’ feelings…
Mencken: …To hurt their feelings wantonly. If they come to him and say, “What do you think of this mass we’ve just finished?” I think he has a right to answer. But he has no right to press his opinions on them.