Free Speech and the Westboro Problem

A recent appellate court ruling in favor of a Westboro Baptist protester, says Carson Holloway , shows the decline of judicial ability to protect decency standards for public discourse:

Rulings such as these do not arise merely from the preferences of liberal judges inclined to side with offensive malcontents against ordinary citizens. Snyder v. Phelps was decided 8 to 1. Justice Alito alone dissented, while the rest of the Court’s conservatives joined with all of its liberals to forbid the emotional distress suit in the name of the First Amendment. Similarly, the appellate panel’s decision was unanimous. And the Eighth Circuit, well-stocked with Republican nominees, is no haven of liberal judicial activism.

On the other hand, neither do such rulings stem from the real requirements of the Constitution. They are instead the fruit of well-established but still erroneous constitutional “doctrine” created by courts and wrongly acquiesced in by the public. Such doctrine, though decades old and now accepted by both conservative and liberal jurists, must be reconsidered if our governing institutions are to maintain any ability to enforce reasonable standards of public discourse.

The First Amendment, as originally understood, provides no shelter for Westboro’s antics. America’s founding generation—both ordinary citizens and legal elites—drew a distinction between liberty and license. That is, they recognized a difference between, say, the use of freedom of speech, on the one hand, and its abuse , on the other. There can be no genuine doubt that they would have classed Westboro’s outrageously lacerating rhetoric—“Thank God for Dead Soldiers,” “You’re Going to Hell”—in the second category and would have accordingly judged it outside the protection of the First Amendment’s speech clause, which was intended to protect a robust public debate, conducted according to civilized standards of decency.