Paper Two: First Amendment and Westboro Baptist Church

The Westboro Baptist Church [WBC] has long been used as a case study for hate speech and First Amendment rights, yet continues to provide fresh material to examine the doctrines upon which liberty in the United States was built. Their extreme messages—usually offensive—combined with the time and place they choose to protest continues to call into question the line between personal liberty and governmental restrictions. Despite outrageous messages, often delivered in a manner upsetting to people’s private and what could be seen as sanctified moments such as funerals, the Church holds and exercises their right to say what they will, with few restrictions concerning the time and place of delivery. If United States citizens are to uphold their liberty, this intrinsic human right to debate freely and thus develop socially and intellectually, no speech—even hate speech—should be silenced. However, there are cases for which the established time, place and manner restrictions should apply.

As John Stuart Mill examines liberty in his essay On Liberty, he gets at the very essence of hate speech regulation in terms of the First Amendment: the line between individual citizen and governing body. One central idea in his philosophy is that of speech and the importance of being able to state an opinion so it might be “freely, frequently and fearlessly discussed” [Mill 40]. If there is any doubt regarding what one can or cannot voice, there is an infringement on freedom of speech and thus liberty itself. This right does not function only on the personal level; it exists by association for the greater social good. Mill holds that an idea must be debated and challenged frequently, for otherwise it becomes a dead dogma. Truth must be tested in this realm of experience and intellect in order to further refine it’s definition as well as allow for the development of one’s own critical mind. Furthermore, one can never assume the truth of their statement, nor can they assume the fallacy of an others’. The value of WBC’s speech lies in their belief they are postulating a valid point. It is important to include their ideas in the ongoing conversation so they can be challenged, thrashed out and eventually reshaped by conflicting and harmonizing points. “But on every subject on which difference of opinion is possible, the truth depends on a balance to be struck between two sets of conflicting reasons” [Mill 41]. Mill’s view of liberty, however, does not assume one has the right to say something just because they can, without an understanding of the reason for this right. Thoughtful, deeply understood and constantly practiced, the motivation to speak is twofold: to improve society and to grow oneself.

The political reasons for freedom of speech concur with Mill’s philosophical reasons. In the words of Supreme Court Justice Brandeis, “Those who won our independence... believed that... the greatest menace to freedom is an inert people; that public discussion is a political duty; and this should be a fundamental principle of the American government...” [Tedford 434]. Why have this freedom unless it is fully understood and practiced? How to call oneself free unless this practice is fully realized? How to fully realize it unless it may be observed in the public realm? This right is to protect the individual and society from falling into narrow and absolute definitions of right and wrong, of truth. WBC has the right to protest, yet others have the duty to respond.

Hate speech—like that of WBC—should be protected and thus subject to the “immediate incitement” test under Supreme Court ruling. To punish speech challenging or threatening the societal norms and values is to go against the fundamental values upon which this country was founded. Justice Black, in his dissenting opinion regarding the use of the “bad tendency” test in Dennis v. United States, said “Undoubtedly, a governmental policy of unfettered communication of ideas does entail dangers... the benefits derived from free expression were worth the risk” [Tedford 62]. Echoing Mill’s notion of upholding truth and validity only in the face of opposition, applying “immediate incitement” to hate speech allows for the strengthening of existing ideas, as well as the creation of new ones. “The political censor has no place in our public debates” [Tedford 62], said Justice Douglas of the same case. Instead, the speaker must enjoy maximum protection and the government must employ rigorous judicial scrutiny in determining the intent and imminent danger of the speech. Hate speech must be more than just “blowing off steam” [Tedford 67]; there must be an accompanying dangerous action about to occur.  If the WBC truly believes what they say, they should care more about being heard, than about the emotional impacts of the message—for example, protesting during funerals to create emotional damage in soldiers’ families—even though exploiting emotion is a large part of garnering attention. However, they should also understand that informing people could be more effective in a context where the emotional does not outweigh the rational. Otherwise, just as the government felt endangered in Dennis v. United States, the professors of “hate speech” seem wary of the strength of their argument, thus relying on its operation in extremely emotional environments for response.

This sort of response is antithetical to the right of free speech: developing the self and society in a context of healthy and rigorous debate. This context needs all types of speech, whether they are hateful and extreme or peaceful and wise. In terms of defamation, however, what constitutes “safe” hate speech must be refined. “Fighting words,” as defined by the Supreme Court, are “words spoken in face-to-face confrontation that are likely to create an immediate breach of the peace” [Tedford 177]. This speech falls into the “worthless speech” category as developed during the Chaplinsky case. “Worthwhile speech” is comprised of “expression that has social value as a step to truth, thereby deserving First Amendment protection” [Tedford 171]. Un backed by proofs, the speech of WBC could fall into the level II category of worthless speech. Yet despite WBC’s possible presence in this category, stifling their speech is dangerous. Necessary requirements regarding restriction of speech need to be further refined.

When determining the protection of hate speech, one must also take into account the use of appropriate channels of communication. In order for debate to flourish an outlet is needed. Picketing is rarely, if ever, seen as sophisticated debate. However, to prohibit the act of picketing and restrict what one might say while doing so is also to risk the protester’s reach of a “boiling point.” With the inability to let off steam in the form of non-violent protest, WBC would undoubtedly find alternative methods—perhaps less peaceful or subtle—of making themselves known in the public forum. This type of speech must be allowed on some level, the compromise being regulations of time, place and manner of the protest.

Justice Thurgood Marshall defined the compatible-use rule in 1972 in the case Grayned v. Rockford as the crucial question of “whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time” [Tedford 269].  Depending on a state’s restrictions, the WBC is not allowed to protest within a certain amount of feet or during specified times before, during and after a funeral. Families must be protected from this kind of emotional distress, yet to impose content-based restrictions regarding the time, place and manner of exercising free speech and, more specifically, protesting, is a slippery slope. The fine line between upholding personal privacy and safety, and upholding the right of self-expression becomes even finer in cases where either side could be seen as worthwhile to protect. However, allowing minor restrictions during a specific, obvious and unique time—grieving during a funeral—is reasonable. The harm to the individual in this circumstance outweighs the necessity of WBC’s message being professed during the time of funeral. As long as restrictions do not grow to cover longer time periods, entire public places and peaceful methods of protests; as long as other mediums exist through which to create dialogue regarding such contested subjects; freedom of speech should not suffer from such restrictions.   

 

 

 

Works Cited: Paper Two

Tedford, Thomas L., Dale A. Herbeck. Freedom of Speech in the United States.   Pennsylvania: Strata Publishing Inc., 2005. 

Mill, John Stuart. On Liberty and Other Essays. New York: Oxford University Press, 1998.

Hudson, David L. Jr., “Overview: Funeral Protests.” Updated October 2006. <http://www.firstamendmentcenter.org/assembly/topic.aspx?topic=funeral_protests>

Arthur, John. “Sticks and Stones.” Ethics in Practice. Ed. Hugh LaFollette. Massachusetts: Blackwell Publishing Ltd., 2007. 398-409.

Response; Chapters Five and Thirteen; Week Seven

Questions from Sophie; she writes: 

 Taken from Sourcewatch.org, a project of the Center for Media and Democracy: “Mediaweek reported in December of 2004 that 99.8% of 240,000 complaints made to the FCC complaining about indecency in 2003 originated from members of the Parents Television Council. PTC members are primarily responsible for the over 1,500 percent increase in complaints since 2002 (~14,000 complaints) and the increase of over 65,000 percent since 2001 (~350 complaints).”

In this case, it seems that a small minority has been able to pressure and influence the FCC’s enforcement on indecency and indecency standards.

Where should the FCC draw the line on complaints generated from individuals or repeatedly from activist groups?

 Should complaints by a minority of the population be allowed to influence the FCC in the way that it does, thus deciding what the millions of others can see or hear?

How should the FCC handle or evaluate these kinds of complaints?

Should they be taken seriously or dismissed?

If the complaint is reasonable—as coming from a sensible person or group—I think everyone should have the chance to be heard in anticipation of a response [of course, even those deemed unreasonable should be able to have their say, as long as no physical or emotional harm comes in response to their words. However, in this instance, any proposed court case based upon such an individual’s complaint should be dismissed]. To restrict complaints is to restrict a citizen’s freedom of speech. Most of these protests seem to fall into the same or similar categories, so it is feasible for the FCC to respond with conclusions already drawn or court cases already determined. There will always be those groups who are more vocal about certain issues because they rally for those causes. It is not, then, surprising the FCC hears so many objections to programming from the PTC, for the FCC is probably their main outlet to be heard and their best chance to trigger some change. I don’t, therefore, think there should be a line drawn regarding how many or who complains to the FCC. I do, however, think they should take into account the source and number of complaints when ruling on new broadcasting and content restrictions.

Of course the FCC should be allowed to act on complaints from a minority of the population. If minorities had no voice in matters of public regulation I shudder to think about the ways in which society would move or what stagnation of thought and morals would settle. The distinction comes in how the FCC should respond to these complaints—in how heavily they should weigh them with regard to the rest of society, the demographics and psychographics of the audience, the quality of the speech that would be restricted, etc. All claims, as stated previously, if reasonable should be taken seriously and fully considered before being dismissed. [One could enter into the debate defining a reasonable source or complaint, yet as we have discussed in class, for our purposes now, a general understanding of “reasonable” will suffice]. It would be blatantly unconstitutional to refuse or dismiss speech before heard or even considered; it would be a danger to the health of society and the citizen’s personal liberty. Fortunately, if for some reason programming became over restricted as a result of theses complaints, one would hope, the minority this time pushing for less restriction, would be given the same opportunity and weight of voice to enact similar change. From reading chapter five, it sounds like the FCC has always struggled with “an uneven approach to balanced programming and equal access to broadcasting facilities” [p369, Tedford and Herbeck]. Part of the balancing process is hearing all sides, no matter their position or number of voices. 

Three Questions: Chapter Seven

Ch. 7 – Controls upon the Content of Speech

[In response to the ‘History and Development’ section of chapter 7, p.194]

The very fact that regulation of commercial speech, i.e. advertising, is in question is surprising to me. As we are all consumers, living in this society of consumerism/capitalism none are exempt from the advertisers’ bright lure. These professions about certain products, then, are usually our best and quickest way [realistically] to asses a product. As long as we live in such a climate where competition between producers fuels the economy and we demand no less than choice when it comes to any number of products, it seems counter intuitive and self damaging not to try and regulate the accuracy of advertising. I’m wary of the companies who fight against regulation. They’ve nothing to worry about if telling the truth, so what are they’re intentions when attempting to stifle this sort of regulation?

 

“What is meant by the term ‘commercial speech’”? p. 200

Does the increased use in internet-based selling—both public and private—necessitate new dialogues concerning 1^st Amendment protection? What constitutes commercial speech when it seems even people have become commodities to sell; each individual selling themselves to a company or group of people... Résumés are posted online and on internet aggregators of possible employees like LinkedIn. It seems to me, here, that the line between political and commercial speech is blurring when applied to some new sectors of personal networking. I realize that most discussion in this chapter is focused on selling external products and services from doctors or lawyers, but it seems there is a growing tendency to treat the Self as such a commodity in the field of business, even of academia.  I wonder if this mindset will reach such a point as to eventually work itself into a discussion concerning the FTC. Perhaps such a discussion would take the theme of dialogues surrounding individual promotion by doctors and lawyers.

“The commission argued that customers were ‘captive audiences of diverse views’ who should not be subjected to utility company opinions in the monthly billings.” P. 207

To a certain extent, I actually agree with this restriction on sending political messages along with monthly bills. In my mind, I picture a scenario where doctors send small messages supporting their choice of political candidate or current bill up for vote. On the other hand, the choice of doctor or other service provider is a choice at base, and I suppose one could, then, choose another. However, I think there is an etiquette and a certain level of respect toward ones client base not to bring ones own view into a context that is more about helping the client.

On the other hand, I generally tend towards a more holistic way of dealing with people—from services of law to medicine to daily business encounters. In that case, these restrictions would seem over the top and inhibitory of reaching a level of mutual understanding between client and provider that could potentially be more enriching for both parties. 

Three Questions: Chapters Twelve and Four

Ch. 4 – Defamation and Invasion of Privacy

P. 86: “For the same kind of state law that makes Beauharnais a criminal for advocating segregation in Illinois can be utilized to send people to jail in other states for advocating equality and non-segregation [...] ‘Another such victory and I am undone.’”

I strongly agree with Justice Black in his firm opposition to the majority opinion of this court case, as evidenced by his preceding statement. It is vitally important to consider the ruling as applied to inverse situations. Morally, a case that might seem obviously in the wrong but in a court of law—where ethics exist in the form of previous decisions written as guideline and non-dependent on what ‘seems’ right to the judges—would pass as legitimate. ‘Another such victory and I am undone.’ Another such case brought before trial—slight variation regarding group involved—and one may find themselves undone by the case rather than victorious.  Is this a legitimate response on my part? Or is there always room in the court to so modify a law [or general guideline] that would undo the previous victor? Is that scenario even plausible? It would seem, then, that the law would override human decision; that the law would become an entity unto itself, completely detached and untouchable to those who created it.

Ch. 12—Copyright

P. 349: Nimmer’s questioning of copyrights constitutionality

Does part of having freedom of expression mean also the freedom to be individually recognized for the results of this original freedom? Does ‘freedom’ intrinsically imply a level of restriction? What would the significance or meaning of freedom of expression—to write and publish and create individual effusions to be judged by and to move an audience—be if one’s ideas, published, were essentially up for grabs? Would that de-legitimize the statement, the idea? Would it foster or decrease discussion of the art piece? 

Ch. 4

P. 94: “The state of mind of the message source is a key factor in a libel action, for no person can be guilty of actual malice who sincerely believes that the message delivered was true.” 

[The second observation regarding truth of actual-malice rule]

This statement calls to mind one of the points made in the previous class discussion. The context of any statement must be taken into account. Words on the page are not enough to find a party guilty. There must be some other presence; the human intent must come through—the personality in a sense—to understand the statement. Similarly, it is difficult to judge whether or not an individual is dangerous from simply reading the briefing or court cases, as with examining potentially harmful students. Can you expel a student based solely on their poetry, without taking into account the whole person? And can you define harmful statements without tracing the words back to the one who initially wrote them? Obviously not, since this the second observation regarding truth of actual-malice, though it seems at the very base of defamation itself: how does one defend or prove intent?

 

Group PDF: Assembly

ACLU challenges Mich. funeral-protest law 

By The Associated Press 

Published on 04.02.09

In September of 2007, two people were arrested while attending their friends' funeral because of homemade signs taped to the window of their van protesting the president and government policies. Michigan is one of many states to create funeral protest laws in response to psychologically harmful and disruptive protests by the Westboro Baptist Church. In Michigan, the law states it is a felony to "disturb, disrupt or adversely affect" a funeral within 500 feet. In response to these arrests, the American Civil Liberties Union argued that the law itself is "unconstitutionally vague" and that the arrests violated free speech. Both the deceased and the two arrested friends were army veterans. 

In this specific case, one must look at the intent of the message. The arrested were not at the funeral to protest, rather to grieve. Furthermore, cases involving assembly in public places should be judged--according to previous Supreme Court decisions--upon time, place and manner. This arrest seems not to have taken into account manner. Also, the existing Michigan law against funeral protests is indeed vague--there is too much room for interpretation on an individual level. 

Which leads to our two main questions:

1. Should the police have free will to enforce laws? How should the police arrests be monitored? Does this arrest--or anti protest laws--violate free speech?

2. How does one combat personal prejudice at local level law enforcement? 

{as the article states, authority has "unchecked power to arrest people who have unpopular views"} 

It's Called Freedom

In response to Paul K. McMasters' article, "Fear Spoils Freedom's Promise:"

I agree with most of McMaster's article, yet he makes some claims that are difficult to accept right away, without having looked and thought further into the complexities of the situation. He includes a specific quotation near the end of the article: "We must not be afraid to be free." This I agree with completley, and I find his argument that concerns freedom of speech in the constitution--as demonstrated and manifested in Supreme Court cases--adds up to a "debilitating fear that the right combination of words, images or ideas will cause calamity." Being too careful with what we do or say, constantly checking and rechecking our words and actions, is akin to tiptoeing around a delicate situations, liable to explode at any moment. 

I appreciate his questioning of the delicacy of speech. Though I do think people must be conscious of their words and act as much as possible, sinking into a constrained mold of being in response to a fear of harming others in unhealthy. Part of the hope in having the freedom to speak as we will, where we will lies in the ability to have open dialouges with others whose opinions may be opposed to our own. How would the conversation advance without confrontation? Without the sort of explanation and questioning that may seem on the surface dangerous to the others' well being? Without the uncomfortable situation born of challange, how would we move anywhere new or different?

All of this spoken under the "contract" that is the First Amendment and the Constitution gives the dialouge a context and infuses it with purpose. It seems the document provides some sort of promise or comfort for people to say what they like, exploring and perhaps even entering into questionable positions in the process of reaching some different level of understanding. McMasters notes the rapid advancment of communication and proliferation of avenues on which to communicate. "The more ways we find to communicate with one another, the more reasons we find to silence one another," he says. "We crave serenity yet reject the balm of tolarence." Oftentimes tolarence in painful. Letting something new into one's worldview that may shock the perceived perfection into something flawed and filled with holes might be a terrifying thought for some comfortable with thier "normal" way of life and thought and being.

All of this said, I feel the most pertinant issue stemming from McMasters' article is freedom of speech in mass media. Granted, alternative media sources are popping up all around, but the dominating presence continues to be major airwaves. As this standardization of media's sensationalized and pre-planned story telling reaches a crescendo, can we choose to ignore it and is this ethically responsible? To what degree should these crafters of reality on a large scale be able to function on the business of ratings? Of profit?