Supreme Court Rules On 'Hurtful Speech' The U.S. Supreme Court has ruled that protesters evoking "even hurtful speech" at military funerals are protected by First Amendment rights. Jeffrey Rosen, legal affairs editor for <em>The New Republic</em>, explains the case and the ruling's implications.
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Supreme Court Rules On 'Hurtful Speech'

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Supreme Court Rules On 'Hurtful Speech'


Supreme Court Rules On 'Hurtful Speech'

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In recent years, demonstrators picketed some military funerals. Members of the Westboro Baptist Church of Topeka, Kansas, held up signs such as: don't pray for the U.S.A. and thank God for dead soldiers. They claim that the deaths are God's punishment for a government that tolerates homosexuality. The father of a dead Marine sued those church members. Initially, he won his case and $5 million.

Today, Chief Justice John Roberts wrote for an eight-to-one Supreme Court majority: As a nation, we have chosen to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

Does this go over the line? Do these protests take the First Amendment rights too far? 800-989-8255. Email, You can join the conversation on our website. That's at Click on TALK OF THE NATION.

Jeffrey Rosen joins us here in Studio 3A. He's a law professor at George Washington University and legal affairs editor at The New Republic.

It's always nice to have you with us, Jeffrey.

Professor JEFFREY ROSEN (Law, George Washington University): Good to be here.

CONAN: And it seems free speech won today. Did the Supreme Court - eight to one is not close?

Prof. ROSEN: It's not close, and that's what makes the decision so interesting and exciting. Many people thought that this posed a dramatic conflict between privacy on the one hand and free speech on the other. And you...

CONAN: And a very emotional issue.

Prof. ROSEN: Tremendously emotional. I mean, as Chief Justice John Roberts acknowledged in his decision, this is among the most hurtful speech that can possibly be imagined in a context, a military funeral where it's likely to be especially wounding to the family.

But Roberts, quoting the famous flag-burning case, reaffirmed the principle that if the First Amendment protects anything, it's that society can't prohibit the expression and idea merely because society finds it offensive or disagreeable. And he said that although there is an interest in privacy, it has to yield when the speech is on a matter of public concern.

Here, he said that the question of America's toleration of gays and lesbians in the military and the scandals of the Catholic Church was of the highest public concern, and court shouldn't be in the business of trying to separate the stuff that was targeted at the family from the more general political statements.

And as for the claim that this was a captive audience, namely a funeral where the family members couldn't escape, the court rejected that claim as well and said that, in fact, the picketers were a thousand feet away. They couldn't see the signs until after the funeral was over, and indeed, the speech was not targeted. So it was quite a dramatic victory for free speech.

CONAN: And this would overturn several state laws, as I understand it.

Prof. ROSEN: I - well, I don't know about overturning. It would say the laws prohibiting intentional infliction of emotional distress could not be applied...

CONAN: Used...

Prof. ROSEN: this particular setting.

CONAN: a lawsuit against them.

Prof. ROSEN: Exactly right.

CONAN: So there are laws, though, that restrict how close they can come and things like that. Would those still apply?

Prof. ROSEN: Those probably would apply. Maryland, actually, passed such a law after this case was decided. Roberts said that that wasn't an issue in the case, but neutral laws restricting the time, place and manner of protests definitely still remain on the books.

CONAN: And this has, to some people, you mentioned the flag-burning case, but it would also smack of the case where the Ku Klux Klan and the Nazis marched through Skokie, Illinois.

Prof. ROSEN: Those are almost galvanizing First Amendment cases, the ones that people hate the most. It's precisely the protection of speech we hate, the court has said again and again, that most tests the First Amendment.

Now, of course, there was a dissent. It was a lone dissent by Samuel Alito, who's become quite a passionate defender of privacy in cases like this. And he found it outrageous that the court would protect this speech. He said there's no question it was targeted at the family in question. He noted a blog posting on the Internet after the funeral that made clear that Matthew in particular was targeted. He said that Matthew was falsely asserted to have been gay, and Alito said...

CONAN: This is the U.S. Marine who was being buried.

Prof. ROSEN: Precisely so, whose father sued for intentional infliction of emotional distress.

Alito interestingly even cited a protest that occurred after the case was decided, noting that after the Tucson tragedy, the Westboro Baptist Church recently announced its intention to picket the funeral of the 9-year-old girl killed in Tucson proclaiming she was better off dead, which Alito found another outrageous example of their specific desire to target intentional infliction of emotional distress. And basically, Alito said this was speech about a private concern and it had to do with a private figure, and therefore, it should not be protected.

CONAN: Which raises a question: If this is not hateful enough, is there any speech hateful enough not to cross that First Amendment line?

Prof. ROSEN: And that's also the question that Justice Breyer raised. I mean, if you're literally stalking someone or if you attacked someone and then did it in a situation where you knew that the news media would broadcast it more broadly, could that political motive save the fact that, essentially, you're engaging in stalking or harassment? And that question is - remains for another day.

CONAN: And it remains for another day. So free speech, this is a signal victory?

Prof. ROSEN: Signal in the - I mean, eight to one victory is not - is a signal victory, absolutely. And Chief Justice Roberts has enjoyed getting these broad majorities and other free speech cases, striking down the attempt to challenge the ban on military recruiting on campuses. So the speech is one he cares a lot about.

Remember, the court was criticized in the Citizens United case for issuing a five to four divided ruling, saying that corporations are persons. But Roberts avoided that sort of division here, just as he did a few days ago, when he said that corporations don't have privacy rights for the purpose of avoiding disclosure, for the Freedom of Information Act and other case where free speech won over privacy. So we're definitely seeing a trend here, of a very strong free speech court.

CONAN: We're talking with Jeffrey Rosen, legal affairs editor at The New Republic.

And we want to hear from you. Does this cross over the line? 800-989-8255. Email: And Bryan(ph) is on the line with us from San Francisco.

BRYAN (Caller): Yes. Good afternoon. Thank you very much for taking my call.

CONAN: Sure.

BRYAN: I (unintelligible) Mr. Rosen for his commentaries.

CONAN: All right.

BRYAN: I wanted to just say that I lost a brother in the war on terrorism. And during my brother's funeral, the Westboro Baptist Church sent two protesters, if I'm not mistaken, including the wife of the leader. This was very traumatic for my family. However, our community rallied and support. A counter-protest of over 400 people completely muted anything they had to say. And my brother, at the end of the day, was fighting for our Constitution and for our nation. So while, personally, they most definitely cross the line, our community, including law enforcement, ensure that they did not interrupt a very traumatic time for us. So long as we can have people rally around to counter that kind of hateful speech, I think we can keep our Constitution intact.

CONAN: Bryan, very sorry for the loss of your brother. Did you see those picketers from your vantage point at the funeral or did you just know they were there?

BRYAN: The church where my - where we had my brother's memorial service - he was interred in Arlington about three weeks later - was notified by Westboro that they would be protesting. At that point, we notified the local authorities. And we made it a point of arriving at the church well in advance of the protesters. We did not see them. We arrived before they arrived. I think in other cases where they have disrupted funerals and services, perhaps those families, sadly, did not have enough time to prepare as we did. They did also try to protest at Arlington. But on both events, part of the counter-protest was to involve this wonderful organization, the Patriot Guard Riders, who helped us to avoid those people.

While personally it was very distressing, and personally they crossed the line, I know that my brother was defending the Constitution, and I hate to use a cliche, but very much our way of life. And I believe we need to keep that intact.

CONAN: Bryan, thanks very much for that call.

BRYAN: Okay. Thank you.

Prof. ROSEN: Could I just say, Bryan. Also, please accept condolences and my sincere thanks for one of the most inspiring defenses of the Constitutional values that I've heard. I mean, you eloquently described how the faith, that good speech will drive out bad. And the best testament ideas, the ability to get itself accepted in the market place of ideas is really to better our Constitution. And thank you for providing that.

BRYAN: (Unintelligible). Coming from you, I do appreciate that. And it's a hard fight and it's hard to think that there are so many sacrificing, even now. If I may just one make last comment from a wonderful article in The Washington Post today, about Lieutenant General Kelly, who lost his son as well. We need to remember that fewer than one percent of the nation is actually contributing to this fight. And it saddens me to think that, even the State of the Union gave only a few short sentences to what continues to be a very difficult challenge for this nation.

CONAN: Bryan...

BRYAN: I appreciate your taking the time and taking the call, sir.

Prof. ROSEN: Thank you.

CONAN: Here's an email that we have from Amy in Shinglehouse, Pennsylvania: I recognize the need for speech - free speech in this country. But even my 14-year-old wondered how their protests don't qualify as hate speech.

Prof. ROSEN: In America, we protect hate speech. Unlike Europe, Germany, where Holocaust denial is illegal, in America, the court has said, you have to have an idea that poses an imminent threat of lawless action, serious lawless action, in order to be banned. So as Chief Justice Roberts said in a quite inspiring, sort of, (unintelligible) at the end: free speech is powerful, it can wound, it can cause harm. But you cannot ban speech, even if it's hateful. That is the essence of the American idea.

CONAN: And so if hate speech is not prohibited in this country, as you mentioned it is in Europe and in various countries, does that go - does that, to you, go to the question of the added parts of some crimes where it is - you know, if you are doing it as part of a hate crime, there is additional punishment added on. Some people argue that that's, in effect, punishing thought, punishing free speech.

Prof. ROSEN: That's exactly right. And that was tested before the Supreme Court in the '90s. And the court rejected that challenge. It said that you can actually increase the sentence for a crime that was motivated by animos against gays and lesbians, for example, or African-Americans, because that's really a form of action and not thought.

CONAN: And let's see if we got another caller in on the conversation. Let's go to Margaret, Margaret with us from Columbus.

MARGARET (Caller): Hello. Thank you for having me.

CONAN: Sure.

MARGARET: Hey, I'm calling as a gay person. I'm a lesbian. And my heart goes out so much for the families for these terrible words. But I'm thinking back to my time at Ohio University as a journalism major in the late '70s, and specifically Chief Marshall and the wonderful great words he wrote about freedom of speech. And though it saddens me, even as a gay person I just think we have to safeguard the ability for people to have free speech.

And your comment, where it ended, there's got to be another way. It's got to be another type of crime, harassment, something. Maybe that's the avenue to look for.

CONAN: And Margaret, you've gone on to honest work since studying journalism?


CONAN: You've gone on to honest work since you studied journalism?

MARGARET: Honest what, sir?

CONAN: Honest work.

MARGARET: Yes. I actually do. I do honest work having studied journalism.

(Soundbite of laughter)

MARGARET: Thank you for letting me make my comment. And it's just a sad situation all the way around.

CONAN: It is. And Jeffrey, though this was a very strong majority, I don't think anybody in the majority was happy about this.

Prof. ROSEN: They werent. Chief Justice Roberts expressed distress and concern for the members of the aggrieved family. But I think the majority would have been proud by these callers. There's another example of someone who personally feels fronted by these distasteful, hateful comments, but recognizes that the very purpose of the Constitution is to protect them.

So that ability to separate our emotions from the Constitutional principles is at the core of what the court reaffirmed. And I think it's just a beautiful re-affirmation of that in this discussion today.

CONAN: The Supreme Court ruled eight to one today, if you're joining us late, that protest by members of the Westboro Baptist Church, who - at military funerals, protests that are very hurtful to those military families, that free speech trumps privacy and that those military -cannot sue the group for infliction of pain and suffering.

You're listening to TALK OF THE NATION from NPR News. Our guest is Jeffrey Rosen of the George Washington University and also from the New Republic magazine. Let's see if we can get another caller in on the conversation. Let's go to Larry, Larry with us from Sheridan in Oregon.

LARRY (Caller): Yeah. Thanks for taking my call.

CONAN: Sure.

LARRY: I'm echoing what the previous caller said, you just can't stop it, because as much as you want to, you can't. I wonder if there's any parallel to the idea that you don't know - you can't define pornography, but you know it when you see it. And can the justices say, this is wrong, we know it's wrong, but we have to do this?

Prof. ROSEN: It's a great analogy. And the court specifically said, we don't want to be in that business. They said that the - even if a few signs might have been related to an individual, the dominant theme was relevant to public discussion. And if there's any plausible relevance to something the public should legitimately be interested in, it's not the job of judges to try to decide what people should and should not find highly offensive. Such a deeply American idea.

LARRY: And what about the notion of vengeful protest, actually going to these folks' church and doing a counter protest just to say, hey, equality rules here?

Prof. ROSEN: I suppose within the scope of the court's opinion. If it was political protest, that would be legitimate. But maybe the more productive counter speech was the one that the gentleman who lost a brother...

CONAN: Caller from San Francisco...

Prof. ROSEN: Yeah, the caller from San Francisco suggested that there are actually counter protest groups that mobilize in advance to protect the families, to give the counter speech. That's exactly what the First Amendment envisions.

LARRY: Yeah. It's a fantastic action there. Thank you very much. And folks, have a good afternoon.

CONAN: You too, Larry. Let's go next to - this is Nathan, Nathan from Pensacola.

NATHAN (Caller): Hey, how are you doing today?

CONAN: Very well. Thanks.

NATHAN: Well, I am a priest here in Pensacola, Florida. And of course, Fred Phelps and them, do not like us, as well. And I was actually involved in a counter demonstration in Ann Arbor, Michigan, when they were protesting the "Laramie Project" up there.

CONAN: The "Laramie Project" of - the play about the death of a student in Wyoming, yes.

NATHAN: Yeah. And I somewhat tend to disagree with the Supreme Court's decision, having been involved in the protests, in the counter protests against them, because I've seen them firsthand. And I believe that they crossed the line of what the Founding Fathers intended, because they -not only is their speech malicious, but they incite people trying to get them to be violent. They intentionally try and get you to be the one to break the law.

CONAN: You mean they're provocative?

NATHAN: They're beyond provocative. They say things, and they will keep upping the ante, trying to get at your core emotions to get you to respond in a violent way. And if you look at the history of this church, they're funded off of how many times they've sued people for getting violent with them. And so, you know, that's sort of their mode of operation, and I think it goes beyond free speech. I think they are involving themselves in a, sort of, verbal violence. And, you know, it kind of goes into the, I guess, the - you have the right to say whatever you want, but if you say something, there can be reaction to it. I mean, you can yell bomb in a movie theater. You can also be arrested for it. So...

CONAN: I don't mean to cut you off, Nathan, I just wanted to give Jeffrey a chance to respond.

Prof. ROSEN: It's a powerful point, and Justice Alito would agree with it. He quotes from an Internet posting after the funeral was concluded, which confirms your point that there was an effort to incite. The posting said things, among it, it criticized the parents for raising Matthew Catholic. They said, you had a duty to prepare the child to serve the Lord, period. You did just the opposite. You raised him for the devil. And it accuses them of fighting for Sodom. So this claim that there's an attempt to incite is a powerful one.

Now, the court rejected it because it said these protests weren't even seen. They weren't face-to-face. They were far away from the funeral site. But Justice Breyer, in a separate concurring opinion, said, I can imagine situations where Internet speech or speech in a different context might be viewed as an attempt to incite. This didn't meet that test because of the area in which it took place. But I reserve the possibility that maybe in the future we will allow the speech to be suppressed.

CONAN: Nathan, thanks very much for the call.

NATHAN: Thank you.

CONAN: Jeffrey Rosen, thanks very much for your time today.

Prof. ROSEN: Thank you. It's a pleasure to talk (unintelligible).

CONAN: Jeffrey Rosen, law professor at George Washington University, non-resident senior fellow at the Brookings Institution, joined us here on Studio 3A. Tomorrow, we'll take the long view on the budget debate here in Washington. What best serves future generations? Spending on education and health, or working down the debt? Stay with us for that. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

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