Let’s be honest, words can hurt. In 2006, members of tiny, independent Westboro Baptist Church in Topeka, KS picketed the funeral of Marine Lance Corporal Matthew Snyder who died in Iraq. Believing the war to be immoral and God’s judgment on America for the sins of abortion and homosexuality, the protesters held up signs that read “Thank God for Dead Soldiers” and “God Hates Fags” (even though Snyder was not gay). The family felt emotionally traumatized by the hate speech. Snyder’s father sued and won a judgment of $11 million, which another court reduced to $5 million before a federal appeals court overturned the verdict on the basis of the First Amendment. The case is now before the U.S. Supreme Court and it’s anyone’s guess which way the court will rule. (You can read another post I wrote about Westboro Baptist Church and their protest activities here.)
The case represents a classic dilemma, What’s more important liberty or peace? Freedom of speech or freedom from fear? There’s an old saying that goes, “You’re freedom ends where my nose begins.” This idea has been used to outlaw everything from physical assault to smoking (because of the dangers of second-hand smoke). Granted the picketers in the story above used words, not fists or drugs, to harm their victims, but they did cause harm in the form of emotional pain and suffering.
Freedom of speech is not absolute. You can’t slander someone. You can’t threaten. You can’t make false claims about goods or services. You can’t endanger the public by shouting “Fire!” in a crowded theater. So why not outlaw hate speech when it’s so offensive that it causes emotional harm?
Why not? Because restricting speech, even hate speech, does more harm than good. In his classic treatise On Liberty, John Stuart Mill (1806-1873) wrote, “In general, government should avoid interfering with the private lives of citizens, since they invariably do a poor job of regulation, and cause more harm than good, even when well intentioned.” The coercive power of government is a greater threat than the hate speech of all the racists, homophobes, Neo-Nazis, and Islamic Jihadists combined. Any club we give the state to beat the Fred Phelpses of the world with, can also be used against the rest of us. Since 9/11 we have seen the intrusiveness of the federal government increase dramatically. In the name of fighting terrorism, we now have warrantless wiretapping and GPS tracking. Big Brother is watching. He’s watching Arab-Americans today. Yesterday it was Japanese-Americans. Tomorrow it may be Christians.
I have no idea how the Supreme Court is going to rule in Snyder v. Phelps. Part of me, the emotional part, wants to see Phelps and his church pay for the psychological pain they have inflicted on others, especially the grieving family of a fallen Marine. But the rational part of me knows that if that happens, our civil liberties will become the greatest casualty of war.