Our friends at the Wall Street Journal have just celebrated the decision of the Supreme Court this past week for vindicating “Free speech for Jerks”: The Rev. Fred Phelps and his merry band have drawn the attention of the media as they have gone about staging demonstrations at funerals, and using those occasions as platforms for denouncing, in raw terms, homosexuals, the Catholic Church, the military, and American interventions abroad.
In the case at hand, Snyder v. Phelps they held a demonstration timed to the funeral of Marine Lance Corporal Matthew Snyder, who had died in Iraq. With their usual finesse, or their usual unfailing sense of what will draw the coverage of the media, they carried signs saying, “God Hates the US/Thank God for 9/11,” “Thank God for Dead Soldiers,” “God Hates Fags,” “Priests Rape Boys,” and “Pope in Hell.” The demonstrations were not held near the church where the funeral had taken place.
But Albert Snyder, the father of the young Marine, saw the coverage of the demonstration on television; indeed it was quite hard for him to avert his eyes from it. And that spectacle, he testified, has haunted his nights and days ever since.
The Supreme Court, voting to protect Phelps, did not deny Snyder’s claim that he had suffered “wounds that are truly severe and incapable of healing themselves.” In an earlier day, the local police had ordinances at hand to deal with people who disturbed the peace by haranguing people with provocative, assaulting language. Those ordinances would say, for example that “No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor . . . deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.”
But for the past forty years the courts have made those ordinances virtually impossible to enforce, and that explains, more than anything else, why Albert Snyder had to seek redress against this hateful assault by filing a suit for the personal hurt he had sustained.
The Court found it awkward, to say the least, that a personal suit for damages could be used to punish speech that may be directed to an interest of public controversy. But forty years ago, those concerns did not preclude actions for defamation, including the defamation of racial groups, which did not name any particular person as a target.
The Court vindicated, if that is the word, the freedom of Rev. Phelps to engage in these coarse verbal attacks, and the editors of the Wall Street Journal, finding nothing to praise in Phelps, found some consolation in the fact that Phelps had brought Left and Right together—Antonin Scalia and Sonia Sotomayor, Clarence Thomas and Elena Kagan—to defend the freedom of speech under the First Amendment. But that is not the most notable landmark to be noticed here.
Far more telling for our jurisprudence is that the case marked the full drift of conservatives on the Court to settle in with the revolution begun nearly forty years ago, with Cohen v. California, to install moral relativism as the anchoring premise in the laws governing speech, and to overturn dramatically the ethic governing speech and civility in public places. It was in the Cohen case that Justice John Harlan wrote the line that would form the signature tune for the judges from that day forward: “One man’s vulgarity, another’s lyric.” Harlan would receive vast credit for a novel breakthrough in the law, for discovering the doctrines of “logical positivism” long after they had been discredited in the schools of philosophy: Moral words, casting praise and blame, pronouncing on the things that were right or wrong, just or unjust, had no cognitive content or objective meaning. They were essentially emotive; they expressed passions, which could not be judged true or false.
Cohen, visiting the courthouse in Los Angeles, had worn a jacket with the sign, “F___ the Draft.” Affecting now a rare innocence, Harlan asked, “How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. ”
But then the punch line: “Yet no readily ascertainable general principle exists for stopping short of that result” once one presumes to judge the words that may stand in our language as coarse, obscene, assaulting. Through the fog of language, however, Harlan was able to tell that Cohen’s speech was protected by the Constitution as “political speech.”
Cohen, he said, was obviously asserting a position on the “inutility or immorality of the draft.” But if speech were really so subjective, if there were no principled ground for distinguishing the obscene and assaulting from the refined and approving, how did he know that Cohen was taking a position? Perhaps “F ___ the Draft” meant “make love to the wind.” Harlan could tell that the speech was political because, as anyone familiar with ordinary language would have known at once, Cohen was using an expression that had to be understood as condemning the draft. He was using a word stamped in function and meaning as a moral term, a term for condemning or commending, attacking or defending.
With that opinion Harlan overturned a traditional teaching in the law that was not only anchored in a sound linguistics, but part of a larger public ethic. The components in that understanding were contained in the classic case of Chaplinsky v. New Hampshire in1942, and they might be compressed in this way:
An assault in the law has not required physical touching or a material harm. One can shoot at a person and deliberately miss him, or hold an unloaded gun to his head and pull the trigger. In the law, those actions would be “assaults.” In this understanding, verbal assaults, extortionate and threatening letters, were every bit as much real assaults. A burning cross outside the home of a black family could stir in them genuine terror.
It was not simply that certain words were “fighting words” that provoked others to fight. As Justice Frank Murphy said in explaining the point, these were words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” [Italics added.] The black family seeing a burning cross planted outside their home were not likely to assault the thugs assembled outside. But people of ordinary wit could understand the difference between a burning shoe box and a burning cross. And one could understand why something wrong had taken place even if the cross provoked no fight, no violence, from the family inside the house.
Ordinary language was the key: Certain words were simply established in ordinary usage as terms of assault, and for them to function in that way, they had to be instantly understood as terms of assault.
To bar the use of these words involved no serious restriction of the freedom to engage in the most vigorous, even searing criticism on matters of public policy. As Murphy observed, this kind of language was so gross that it was removed from analytic prose or even from the most ordinary language of argument. “[S]uch utterances,” he wrote, “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” And so Mr. Rosenfeld, at the meeting of a local school board in New Jersey, had one adjective to convey his complaints: “motherf….g.” He was asked simply to stop using that language. And yet, simply asking him to refrain from that word, to say things another way, did not impose even the least restraint on his freedom to make the most scathing, substantive argument against the local board of education.
Chief Justice Roberts thought he was saying something to exculpate Phelps, or palliate his offense, by noting that Phelps was addressing matters of genuine public controversy. But none of that had any bearing on the doctrine in Chaplinsky. One of Roberts’s predecessors, Chief Justice Warren Burger, once imagined a case in which a couple could be locked in sexual intercourse on the steps of City Hall. The context, with a public building, could clearly impart a political meaning to the act: They could be acting out what they thought the mayor was doing to the city. And yet to bar them from acting out that scene was not to bar them from making the most serious argument against the Koch or Dinkins administrations.
Justice Samuel Alito, in his dissenting opinion, caught precisely the lines of the old teaching when he remarked that “the First Amendment ensures that [Phelps and his band] have almost limitless opportunities to express their views.”
They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.”
Barring them from harassing the Snyder family at the time of the funeral would hardly diminish their freedom to make even their harsh case in public. The fact that the “speech” in question here had a public import did not insulate the gross assault upon the Snyders from the protections that the law usually affords the victims. “I fail to see,” said Alito, “why actionable speech should be immunized simply because it is interspersed with speech that is protected.” It was clear, rather, that “the First Amendment does not entirely preclude liability for the intentional infliction of emotional distress [IIED] by means of speech.” And the fact that the assaulting speech took place, as the majority noted, on a “public street . . . should not be enough to preclude … liability [for this intentional inflict of emotional distress].”
Nor was this a case in which the wounding of the family was an incidental effect of speech directed to a public dispute. As Alito noted, the targeting of the family has been a part of the operating procedure of Phelps and the key to his success: “This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media [are] irresistibly drawn to the sight of persons who are visibly in grief.”
In the weighing of these claims, it is hard to see what public purpose would elevate the claims of the assailant against those of the victims. “Allowing the family members to have a few hours of peace without harassment does not undermine public debate.” The sum of the matter, as Alito had it, is that “the Court now holds that the First Amendment protected [Phelps’s] right to brutalize Mr. Snyder.”
In the world as it was when the Court was governed by the old Chaplinsky, the public ethic could be stated in this way: When people ventured into public places, they could be asked to restrain themselves out of a respect for the sensibilities of others they are likely to meet in these public settings.
But Cohen v. California, in bringing a new relativism into the law, inverted the traditional teaching: The assailants were now the presumptive bearers of a constitutional right to express themselves, and people who were offended by them had an obligation now to avert their eyes, cultivate tougher skin—or simply shun public places. People would simply have to stop going to restaurants in certain parts of Washington and other cities if they no longer wished to move through a chain of hawkers emitting personal insults and putting on gross displays.
The urbanists for years have been making the case for public transportation, rather than private cars, and creating the conditions for strangers to encounter one another in the vibrancy of the city. But at the same time, the courts have been removing the framework of civility and moral restraint that made that kind of urban life possible. It was a telling line, then, in the Snyder case, when Chief Justice Roberts quoted with approval a passage from the Erznoznik case (1975), obviously drawing on the teaching of Cohen : “the burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities simply by averting [his] eyes.”
No that has not been normally the case; it has been the case only since Cohen changed the reigning codes on civility in public speech—and since the conservative judges settled in firmly, case by case, with this new order of things. One signal marker surely had to be the opinion of Justice Scalia in the case of R.A.V v. St. Paul, striking down an ordinance that banned, among other things, the burning of crosses. The law had barred, in places public or private, the deploying of
a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.
Scalia thought, along with his colleagues, that the law was overly broad. But the more decisive point for him was that the law depended on a discrimination based on the “content” of the speech. It was, he said, “content based and therefore facially invalid under the First Amendment.” So far had the teaching in the Cohen case settled in: even Scalia was willing to work with the presumption that any attempt to judge the content of speech was on its face invalid. He was willing, that is, to work within the scheme that his liberal colleagues, over twenty years, had now confirmed.
But when the case involved the burning of crosses, the liberal judges now recoiled from their own handiwork. Justices Stevens and White were shocked—shocked—that one couldn’t make discriminations based on the content of speech and recognize the meaning of a burning cross. But at the same time, they were serenely oblivious to the fact that Scalia was simply confirming what White and the liberal judges had put in place.
Still, they overcame their shock and outrage by joining Scalia in striking down the statute. They too thought it was overly broad: The ordinance would restrain or punish speech when it merely “arouse[d] anger, alarm and resentment.” But what also seemed to escape their notice was that this was the only ground of explanation left to the legislators drafting laws when they could no longer ban those words or gestures “which themselves inflict injury.”
That was the only way they could explain now what they meant when they sought to ban speech that constituted an assault. That was the only thing the Court had left them, and yet a law framed in that way would readily be struck down as “overbroad.” The whole thing resembled a Monty Python sketch: “Come at me with a banana”—and the student, learning martial arts, would get shot. “Come at me now with a pomegranate.” The liberal justices were fiercely sure that they could recognize burning crosses as assaults, but they would just as surely strike down any combination of words in a law that sought to accomplish that end.
Scalia thought that this legislation, barring the burning of crosses and hateful things based on gender, was a partisan move designed to protect groups that were “favored.” One suspects that the same legislators would not as readily protect those people who have been reserved about the homosexual life, and who are routinely labeled with a snarl as “homophobes.”
And yet, the law that Scalia has sought to shape with such a large nature has not in fact protected everyone. It has been a matter of deep concern to him that these sweeping rules protecting the most vile speech have conspicuously failed to cover with its protections one group: pro-life demonstrators. For them the rules of the Cohen case are suspended. When pro-life demonstrators are outside clinics, the people who are offended by them are not encouraged, in the teaching of Cohen, to avert their eyes or avoid these public places. The very presence of the pro-lifers is taken as the sting of reproach, too much to bear for women entering the clinics.
The Rev. Phelps and his group, spouting the most hateful sentiments, could not be moved from their spot on the public street. But the pro-lifers might be compelled to leave the scene even if they are quietly praying. Or even if they are merely trying to open a conversation with a young woman on her way to having an abortion. For them, all of the rules are turned upside down.
There will be a certain world-weary support for the decision of the Supreme Court in the Matthew Snyder case among conservatives who fear that, if the Court did not take this position, people like Mark Steyn will ever be drawn into courts, prosecuted for hate crimes because they have been critical in print of the claims for gay rights or same-sex marriage. But the decision of the Court in Snyder v. Phelps will protect the conservatives no more than it will protect the pro-lifers. The conservatives curiously find their solution in the mirage of barring all restraints on speech altogether. That will never happen.
The real cure was more readily available, and more clearly taught, in the law when Justice Murphy expressed the common sense of things in Chaplinsky: The remedy is to be found simply by getting clear again the distinction between coarse words of assault and substantive argument. There is a difference between screaming “God hates faggots” and articles unfolding the logic and making the case against same-sex marriage.
When the Court teaches at the top of the State that we cannot make those distinctions—when it says, with Justice Harlan, that there is no principled ground for making them—what else are we to expect when that lesson makes its way out into the land?
Hadley Arkes, a long-time member of First Things’ editorial and advisory board, is the Ney Professor of Jurisprudence at Amherst College and author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law (Cambridge).
Comments:
You can't really allow one, without the other.
Do you want to outlaw just Liberal expressions, but not Conservative ones? Is that really what "free speech" means, here?
It is a waste of time to quote philosphers now. No one who matters cares any more and those who care truly no longer matter.
I agree with both. Free speech is important, but there are higher values than free speech.
To some extent, the law is necessarily "positivist" - for many very good reasons.
First 1) out of practical necessity. Practically speaking, it is normally impossible, to measure the degree of mental stress caused by these words. It is far, far easier to measure actual physical deeds, and physical injury.
Then too? 2) Free Speech means we must allow ideas to be expressed that might upset someone, in their minds. Can we only express things that upset no one? That would in effect, eliminate much meaningful speech.
Then too? There is 3) in most cultures, a difference between thoughts in our minds, and actual "deeds" or "works." So that evil THOUGHTS or words, are not quite as bad as evil DEEDS. Even in Christianity - where even to think of adultery or "lusting" after a woman in our "heart," is sometimes said by Jesus to be all but the same as the deed - still, Jesus declines to prosecute adultery, after all, even in deed.
No doubt it would be nice, if we could determine what is in a person's "heart." Either intending or experiencing mental trauma. But for that matter? 4) Even many sharp words are intended, in our hearts, to help others. Jesus called the priests of his own time, a "brood of vipers." No doubt THAT hurt some feelings.
Should we therefore, really totally eliminate legal "positivism"? Eliminate the distinction between often "empty" or "mere" words - vs. deeds? In fact, much of religion, Catholicism, often toys with this idea. As if the mere "hope" of bread, is just as good as having something real to eat, for a starving person.
But...? It it really? Would you really be willing to live just on "hope" of things, but no actual, literal food?
There remains a very important, even vital distinction therefore, between 1) mental sensations, like insult and hope. Versus 2) real deeds.
It is strange to learn that we in public places cannot be protected from the grossest visual or verbal assaults, when we have been told that we must be protected from cigarette smoke in private establishments, moral speech to protect innocent life, particulates, NOX and SOX, acid rain, and now the stuff of life itself, carbon dioxide. Phooey.
The real cure was more readily available, and more clearly taught, in the law when Justice Murphy expressed the common sense of things in Chaplinsky: The remedy is to be found simply by getting clear again the distinction between coarse words of assault and substantive argument. There is a difference between screaming “God hates faggots” and articles unfolding the logic and making the case against same-sex marriage.I agree with the sentiment here, but there is a problem. Are we really saying that controversial free speech must take the form of articles unfolding the logic and making the case against X? I can't make a short aphorism or wave a sign in public? Enforcing that will, also, never happen.
The real problem is revealed by enforcement difficulties: the letter of the law specifying statically what may be said or not cannot take the place of a human judge making judgments dynamically within a moral tradition, which ultimately necessitates a particular religion enshrined (in some way) at the core of a society. This is a problem with the classical liberal conception of politics which seeks some kind of religiously neutral, procedural politics.
"The demonstrations were not held near the church where the funeral had taken place."
The fact is, a lot matters whether people who are making insults, are in your immediate physical proximity, and "in your face," in your "space," so to speak; in your personal, private space. Versus being at some distance. Note here that the allowed anti-soldier demonstrations, importantly, were "not ... near the church"; wehile the banned anti-abortion demonstrations were often ... right next to the facility.
What's involved here in part, therefore, is the "right to privacy"; that's part of the difference. It's not a matter of the - by the way, conservative - court, favoring liberals at all. It's the principle of the thing. A key factor in "privacy" - cited by the court in fact - is the proximity of the attack. Are they in your physical space? Or not.
Then too, as mentioned earlier: regarding feelings? Don't forget the immense practical difficulty - indeed, the impossibility - of objectively evaluating subjective motives, and resultant feelings of others. It is hard for anyone to objectively determine, whether the "intent" of a verbal tirade, was good or not; and it is hard to quantify the degree of emotional trauma experienced. Furthermore, the difficulty of weighing emotional factors, is not just a "secular" idea; even Catholic priests today, often tell us not to condemn people - because "we don't know what was in their heart."
Furthermore? This SCOTUS decision isn't "positive" law in the sense of being arbitrary. It is "positive" in the sense of conforming to what is possible in nature, and Positivism, and natural law: 1) conforming to what we can objectively observe in nature, versus what we cannot. While honoring 2) the still-important difference between words and (currently) unobservable thoughts ... vs. empirically-quantifiable, physical actions and assaults.
Invisible feelings are important of course. And no doubt, anyone involved in such things, should examine their own motives and hearts - and act with some compassion. At the same time, it is impossible to ask others, the law, to evaluate those personal motives; that would involve reading your motives, reading your mind . Which is objectively impossible, for anyone other than the persons involved.
So that? The author's attempt to assert that there is an ideological bias in the Court, does not really fit. The fact is, a set of legal issues was involved here, that the author ignored. In particular, 1) thus far, "law" is not in a position to be able to objectively evaluate and act on the emotional factors, that the author of this blog piece emphasizes. Furthermore, 2) key issues of "privacy" are involved - that the author does not adequately address. And 3) finally? The author's attempt to invoke and attack "positivism" vs. "natural" law, also fails; since this law conforms to our natural limitations, after all. And even to key elements of Catholic (natural law?) doctrine; regarding the difficulty of "knowing what is in a person's heart."
Finally therefore? The author's real reason for writing this article must merely be ... his own ideological/conservative bias: his desire to defend patriots; his interest in attacking liberals.
Here the author should consult his own heart and real motives - and then confess his sins openly. If his motives were indeed simply ideological, "worldly," political, and therefore impure? And were not an honest, Good Faith effort? Then the author would have to ... be condemned, by Catholic law. Or condemned by God himself. According to what was in his "heart," in part.
Here again, we ourselves cannot do anything: other than the author himself, only God knows what is in the author's heart. Yet? Given the consistent pattern in First Things, of ignoring all evidence against Conservative decisions? And over-emphasizing all evidence that might attack liberals? One might well guess in at least this case, that the author's motives were political, and not religious.
Therefore, 4) if we CAN know what is in a person's heart? If we can logically deduce his true motives? Then it would seem that the author's work is once again, condemned.
But here of course, only the author - and God - know for sure.
--The Founders understood that speech could be the vehicle of injuries and assaults, no less than any other dimension of our freedom. Speech could be used to destroy reputations, incite violence against minorities, induce terror with threats. John Marshall said that anyone who published a libel in this country could be "sued or indicted"--i.e., punished in actions for personal damages or in criminal actions. (Those “criminal actions” would often carry the penalty merely of a fine—just enough to make the point). To say that certain aspects of speech can be restrained or punished when they are unjustified, is not to remove or denigrate rights of speech any more than it is to denigrate any other part of our freedom when it is used to inflict harms without justification. As Justice Jackson and others noted, that kind of speech is just not within the realm of the speech that the Constitution was meant to protect.
And so it is not a matter of standing with me and my improbable partner of Stanley Fish. It is to stand well within the tradition and the moral understandings long settled in our law. We would do well to recall that admonition of Justice Jackson: “No liberty is made more secure by holding that its abuses are inseparable from its enjoyment.”
This is a problem that we can approach with libertarian premises: that we presume in favor of protecting speech unless it falls within that zone of words or gestures that are established in ordinary language as terms of assault. Borderline cases we can let go; in case of doubt, do not restrain. Juries of ordinary folk have no trouble picking out the assaulting words in clusters of this kind: nigger, kike bastard, meter maid, urologist, saint. Nor do they have trouble telling the difference between a burning box and a burning cross.
If we really teach that we have no grounds for making distinctions, why would conservatives be shocked that the authorities in different enclaves see themselves as licensed then to define “hate speech,” as they would have it, as a policy they simply will into place, governed by no principled limits? On the other hand, we may have reservations about the gay and lesbian life, but protect people from being assaulted as “faggots.” One can restrain the latter, while leaving people free to make arguments. And in the same vein, yes, I would be willing to restrain people from shouting “murderer” at women entering abortion clinics, while insisting at the same time that pro-lifers who simply try to approach women, with appeals to talk, or even holding up placards deploring the taking of life, should have the same protections we accord to everyone else.
I’m not sure whether Mr. Willems is raising a question of principle, or whether he is simply getting immersed in those in-between cases that so often mark the experience of the law. (The signs says “no dogs allowed,” and someone brings in a bear.) I assume that arguments may flow freely on the internet, but I assume that nothing in this free flow insulates any of these messages from the laws of libel. Whether any message is taken as libelous and assaulting will depend of course on its context and the prudential reading of how likely it was to be noticed, to be discounted, to produce its effect. We can deal with those things, and even let many borderline cases go. The question, though, is whether we have, finally, the principles for judging even the clearest cases. And my concern is that, behind the willingness to conjure up in-between cases, there really lies, even among the conservatives, the loss of confidence that reason discloses for them any reliable grounds for making these distinctions.
I think you're missing something here. The article refers to "logical positivism" as having been debunked. And not all the schools that rejected logical positivism have been debunked. The school that perhaps dealt the deathblow to logical positivism is still going strong. What is that deathblow? The self-referential incoherency of scientific and logical positivism. The principle of verifiability is itself not empirically verifiable--and so to be a logical positivist you must reject the theory right at the point of the theory itself, to wit you must both be and not be a logical positivist. It matters not if schools rejecting logical positivism have been debunked if the arguments proffered against it were valid and sound--as this one quite obviously is. There are no logicians or logically adept thinkers of the first rank who embrace logical and scientific positivism. For good reason. The best argument against it (much like the best argument against classical foundationalism in epistemology) is still good.
Sounds reasonable, but who decides the difference between a "substantive argument" and "coarse words of assault."?
Free speech is not always an easy right to bear. Often we are offended by someone's "coarse words of assault," but I, a conservative sans nuance, value free speech — it's a basic Constitutional right and should not be proscribed by sensitive professors.
to mr. alleyn, i suppose coarse words of assault are sometimes hard to distinguish from substantive argument. in fred phelps' case, is it really all that difficult to discern the category to which his words belong?
It is very easy for us to say that Fred Phelps and his followers (family?) used coarse words; but then everyone might not agree with us.
First, we sensible people decide what is reasonable, and then from a reasonable point of view, we decide that Phelps used coarse language. Lastly, we expect the courts to agree with us because we are sensible and reasonable. That's not the way things work — thank God for the Constitution.
Bingo. It's much more important to protect a woman's feelings than the life of the fetus within her; a civil society must first and last protect civility; a disruption of the peace is intolerable. And Hadley really doesn't mean "restrain"--like putting your four year old in a car seat--he means "punish:" incarcerate or impoverish (or both).
Wow. I’m reading this on Ash Wednesday and I keep seeing a picture in my head of a man being accused of disturbing the peace. . .and punished . . ah, okay....I guess this is a kinda different “First Things” than I thought. I’m going to have to ponder on this one a while.
But I’m not going to have to ponder on the weirdness of so many of you, commenting on the business of free speech, being so frightened by your own free comments that you hide yourselves under hoods. Yep. Weird. Carnival’s over. Why not take them off? Speech comes out of mouths and mouths are in heads and heads top-off bodies and bodies have names. I keep telling y’all, God’s gonna call y’all up from the dead by name (and I hope to Glory too), why not start using it? That name, it’s what you call a “first thing.”
PS. Hadley: About cross burnings (which you mention a lot and suggest, I think, as something a sensible jury might want to punish): That's something my family actually knows about. As far as I know, the only cross burning that threatened violence in Green County, Ohio was burned in the front yard of my Grandpa Linton's farm. Grandpa didn't much care for the KKK, told them so, they got upset and made a nocturnal visit to the Paintersville farm. Grandpa thought they had a perfect right to cut up their bed linen and howl to the moon and call people nasty names-- just as long as they didn't hurt anybody (or got careless and burned down the barn--actually in that case burning down the barn--the box--would be punishable, the flaming cross was Okay). Free speech was free speech. Oh, and Grandpa and Grandma (because she watched from the porch too) had a names: Lindley and Pearl. The men around the cross, ah, well. . .they were all hooded.
Great form or white-washed tombs as Jesus put it so bluntly.
1. "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises."
2. "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary"
This gives a wide, but principled, margin of appreciation to the legislator to balance freedom of expression agaist other, competing, social vallues
There are many grey areas here. But to be sure, juries and various courts, have made some fairly useful distinctions, in determining which examples of speech are "assault," or are threatening. And which are not.
In the case of the Baptist Church? Examining the many details of the case, including many not mentioned here? Including proximity, privacy issues? It would see that even a notoriously conservative Court made the right call; and by a very wide margin, 8 to 1?
Though juries have been useful here in some obvious cases, it will of course always be hard for the "law" to alweays determine all the relevant details of many of these cases; intent, or what is in the "heart," not being obvious. And to be sure, it is for this reason that religion, a system of morality above and beyond the law, is useful. As it invites us to at least, examine our own motives and conscience, and govern ourselves; even when the law cannot.
Not because the law is superficial or malign here; but just because it is impossible for the law to read minds or hearts; and therefore one vbery relevant bit of evidence, our motive, oftencannot be accurately obtained.
This situation has always existed however; it is not unique to the present case.
And in fact, I would suggest against the author, that the mjaor concern of the Court here was obviously not ideological; not to "relativistically" favor either Liberals or Conservatives. Nor was it more or less "postivist" than any other system of laws. All legal systems having the same limitation: that they cannot observe the mind or heart.
Rather, of key importance, I think, was the consideration of Proximity, as it related to finally, Privacy.
I think the author tried to push the Conservative Alarm button here, to find easy acceptance in First Things; but that alarm was not appropriate. Thhis was not an ideologically- or even positivistically- determined case.
For example, suppose that a major city in the U.S. has a large Muslim population, so much so that certain areas of the city are populated almost exclusively by Muslims. The leaders of that population could argue that any attempt to promote non-Islamic religions within that area constitutes "assault" under the norms of the predominant local culture. Something as small as displaying a Bible openly, or having a Christian fish sticker on your car, could be taken as an assault upon the emotions of the local residents. Certain areas could come to be considered "no speech zones" for anything that is insulting to Islam.
On what basis would the Supreme Court disagree, under Professor Arkes' framework? If the assault is constituted by the reactions of the general population, then I don't see how one could object to such a zone.
why is being in favor of barring shouts of "murderer" at abortion clinics necessarily equivalent to protecting "women's feelings" over the life of the unborn?
At some point, those idiot "demonstrators" are going to take their act to a community where people don't take their sense of deep injury to a lawyer, and the injured parties will retaliate. We all know of thousands of gang members who commit murder for far gentler insults than those. Exactly how does that result guard anyone's fundamental liberties?
Our Constitution gives free range to the expression of political opinions, but that does not mean that people have the right to ruin a funeral to do so. I think that the case is similar to that which is made in favor of other forms of "expression" that are founded in objectionable behavior, or indeed are nothing but objectionable behavior, clothed with a fig leaf, if that. For instance, John has the right to laugh at religious believers and mock their piety, and John has the right to enter a place that opens itself to the public, as for instance the grounds of a church picnic. But he has no right to go there, or to enter a church during services, with the express purpose of mocking what is transpiring. He would be breaking the peace. The Phelps crowd here, though they were not at the church, made themselves proximate in other ways impossible to be ignored; they chose the precise place and time that would cause the family of the soldier the greatest anguish. We do not have to read their hearts to reach that conclusion; it is what anyone would suppose would result, given that they had to go well out of their way to do what they did. That, in my mind, is breaking the peace; people have the right peaceably to assemble, which is what the attenders of the funeral were doing, or what they tried to do.
I am waiting for libertarians, whose views I find incompatible with classical and Christian teachings regarding the common good, and conservatives, who have forgotten what it is they should be conserving, to notice that freedom which is every bit as fundamental as the freedom of speech, and that is the freedom peaceably to assemble, to gather together as people to do the simple things that human beings have always done -- to worship together, to play, to celebrate, to mourn. This is not a supposed right to privacy, which is an odd right to claim, given that human beings are social creatures whose practical reason is meant to be employed among others, for the common good. It is instead a right to peaceful public behavior. Once again, the intellectual elites have impoverished our PUBLIC life, by preventing the people of a certain locale from the sensible exercise of their practical reason, and by failing to protect the public assembly of those who were gathered to mourn the dead.
Sorry, I did put a “than” in that sentence but I should have been clearer. Thanks for the question. I think it’s more like “equivalent to protecting women’s feelings” over the death of the unborn, that’s why the expecting mother is at the clinic. To kill it--that unborn thing. And Hadley doesn’t want her yelled at and called a name. It might upset her. Disrupt the peace. And to Hadley, her being upset and disrupting the peace is a bigger problem than killing that unborn thing. And the person yelling might have to be punished for yelling while the killing of the unborn thing, well that’s a constitutional right and Okay--at least as far as the lawyers are concerned. That’s what I have to ponder over, what’s Okay and what’s not. I”m not a lawyer so this kind of pondering might take a while.
And Andrew, John Willems, Sean Pidgeon, Henry James, Donna Bethell, Sergio Mendez, Edward Alleyn, Michael Paterson-Seymour, Raymond Takashi Swenson, Tony Esolen, and of course Hadley Arkes all opined with their full names (and it took a couple of them some time to write it all out). Why not be a friend, with a name? Try it for Lent?
Historically, at least, the whole purpose of the criminal law has been to preserve the peace. The reason the State prosecutes crimes like theft is not exclusively, or even primarily, in the interests of the immediate victim, but on account of the alarm and insecurity that such crimes cause to the community, as a whole. The same purpose is at the heart of its policy of repressing self-help, duelling and private feuds.
Thus, in ancient Rome, only the paterfamilias, patron or heir could bring a prosecution for homicide, until the Lex Cornelia de Sicariis et Veneficis [Cornelius’s Law on Hit-Men and Poisoners] of 82 BC made it a crime against the State. Early English law shows a similar development; murder was the killing of someone “under the King’s peace” and was originally confined to certain persons, such as his officers and tenants-in-chief, or certain places, such as court or his highway.
Granted, they were jerks. But not criminals.
If we're going to make merely jerky speech illegal, that would mean outlawing nearly every adolescent in America.
Are we going to have a Miss Manners Czar to enforce all this?
Willmoore Kendall has given way to Anthony Lewis. That is a stark reminder that we are witnessing a devolution in conservative thought.
We don't live in a time where there is agreement with respect to many controversial issues on the language that constitutes assault. Yes, obviously if it is borderline, everyone can agree to let it slide. But what is borderline? The fact that Apple took the well-written Manhattan Declaration off the iTunes App store because it was hurtful/harmful should be evidence enough that "reasonable" discourse can fail to reveal what is borderline language. Or was the Manhattan Declaration language truly assault?
And my concern is that, behind the willingness to conjure up in-between cases, there really lies, even among the conservatives, the loss of confidence that reason discloses for them any reliable grounds for making these distinctions.Reason alone is insufficient to disclose reliable grounds that can bring political concord. Reason is necessary, but not sufficient. We should always reason, not because we can arrive at reliable grounds for making distinctions, but because reasoning in politics is a part of the life of humans. But is it not the only, nor even the most important part of the life of humans, and it is the other aspects of cultural life that are critical.
My problem with this discussion is that because reason alone is relied upon, people are led to ignore the significance of the myriad practices of daily life which make intelligible our reasoning, practices which are irreducibly religious and so place us within religious communities that cultivate us as we cultivate them. The modern U. S., however, as a religiously pluralistic political entity is simply not a religious community (or it is functionally a materialistic, pagan one), so there are limits to the shared life we can have as members of that polity, limits which grow increasingly obvious as shared norms fragment over time.
This is also why some American Christians are less Christian and more American: they are situated in terms of everyday practice in the shared life of the American polity more than in the shared life of the Church, so they find themselves growing into a mix of the pluralistic, American version of freedom-loving, cosmopolitan capitalist and the pluralistic, American version of freedom-loving, socially and spatially immobile individual that gets left behind that America creates.
The question seems to be; are we universally agreed that there should not be any restriction on speech. We are not and I am surely not.
My initial agreement with the decision was based on the practical result of what Mr. Arkes wrote about ; we have all caved in to the liberal default position, myself included. I was wrong. Regaining my wits I would take it further than he, I think. How do we reconstruct a culture that can restrict offensive and assaultive speech when our starting point is from a national perspective. How do we deconstruct the effect of a court whose nine justices are asked to rule on issues that at one time we could figure out for ourselves. As it stands now we either all agree or we concede to positivists fiats. The first option is impossible so therefore the second option is all that is left, by this perspective.
As the federal governments reach expands ever further and states and localities concede more and more power to it the ability for organic culture to grow out of what it has always grown out of, the people and their sensibilities, will recede. The supreme court and the federal legislators and regulators by their nature and power tend to a one size fits all solution to all problems, real and imagined.
The simple answer is that the court reign itself in, restricting itself to the more significant cases. The rub there being significant to whom. Another tactic would be something akin to jury nullification, just ignore their rulings, satisfying but frought with problems. The more practical and maybe more effective tact would be for the states to return to a more federalist position, first by weaning themselves from the federal tit, controlling there budgets and contending more with state rather than federal issues. Localities should be less dependant on state and federal monies and directives and do what they do best, serve their people. This is not to say that the federal government does not have a role in our lives but it should be more cognizant of its limitations. A true understanding of the merits of subsidiarity could help limit the number of, what I now consider, abominations by the courts and help us create a culture of considered liberty while allowing an American culture flourish.
If the KKK holds a rally and burns a cross in a public park near a predominantly black neighborhood, that may be offensive, but it should be protected under the first amendment. If the KKK burns a cross in front of the house of a particular black family that has moved into a white neighborhood, I would take that as a threat, an assault on that family, and such speech should be actionable as assault. This decision throws that distinction into doubt.
How much responsibility does the media bear in the promulgation of the Phelps obscenities?
One morning a few years ago I was passing by a Lutheran church in St. Paul, Minn. about 6:30 and came across a half dozen of the Phelps terrorists, including some teenagers, harassing a few people including homosexuals in front of the church. I pulled into the parking lot with the intent of giving moral support to the church but as I did the Phelps imbeciles got into their garishly message decorated van and left.
I scoured the new that night and the papers the next morning but did not see any report of that event. The moronic clan Phelps wouldn't be driving thousands of miles if they couldn't get TV and newspaper coverage.
Is it too much to expect a little temperance from news editors?
or moral persuasiveness, just how many of those respondents would consider as sound - my own
ability to reason within the strict demands of one of the Four Fundamental Laws of Logic, a.k.a.,
The Law of Noncoctradiction?
Now, to the individual(s) whose propensity for wrenching the omniscient words of Jesus out of context
is surpassed only by their obvious inability to comprehend Jesus' very own oft-stated identity, I would
simply ask: What part of "Do unto others, (personal initiative) as you would have them do unto you,"
has actually been enhanced, or considered mutually beneficial, by the Supreme Court's magisterial logic employed in their 8-to-1 decision? Have "we" simply lost the ability to differentiate the moral "forest from the trees?"
