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Thursday, March 03, 2011

Agreeing with Alito, For Once

As I predicted back in October, the Supreme Court ruled yesterday that First Amendment speech protections trump the ability of those offended by the speech in question to sue for damages resulting from emotional distress--even when the speech took place in the context of a military funeral, even when the speech involved outrageous, hateful, insulting, and ugly allegations, even when there was no real question that the emotional distress the speech caused to the bereaved was real. The vote in Snyder v. Phelps was 8-1--interestingly, the very same vote which came down in U.S. v. Stevens, a decision which supported First Amendment claims defending the right to distribute graphic and offensive visual depiction of animal cruelty. The dissenting vote in both cases was Samuel Alito. Though my leftist friends will hate me for saying so, I'm going to have to take this man more seriously...because he's getting these rulings right, even if his views aren't carrying the day.

What do I mean by "right"? Strictly speaking, in our common law system there are not "right" or "wrong" decisions in some transcendent sense; there are only good or bad arguments. Good arguments are the ones which attract the concurrence of other judges, which establish precedents, which make sense and are persuasive to litigants and defendants and through practice become part of the ongoing fabric of constitutional law. Bad arguments are the ones which don't do any of that. Of course, we don't have to restrict ourselves to such a strict, pragmatic vision of the law; no one does, after all (unless you're Oliver Wendell Holmes or Richard Posner, and maybe not even then). We can and do carry our preferences, our ideological interpretations and political priorities, into the debates over the law, and attempt to find arguments that can move forward what we want to move forward, and oppose what we want to oppose. Folks which share my position alongside the political aisle are on legitimate ground when we call Bush v. Gore or Citizens United v. Federal Election Commission (or, for that matter, Roe v. Wade, though saying so situates me on the other side of the political aisle as well) not just bad decisions but "wrong" ones--because they resulted in conditions that, measured against what we believe to be the right distribution or arrangement of power or rights or procedures in our country, are lacking. Some of Alito's actions as a justice on the Supreme Court have been distasteful to me--but not too much, as I'd rather the Supreme Court not have that much importance anyway (ideally, I'd rather we not have much of a rigorous regime of judicial review at all). And regardless of that, I have to say that on matters of the First Amendment, I'm liking, and thinking correct, more than a little of what he has to say.

Consider his dissent in Snyder v. Phelps. He's making a rather simple series of points: first, that citizens may sue others for "recovery in tort for the intentional infliction of emotional distress" through certain kinds of speech acts; second, that the emotional distress suffered by Albert Snyder when he became aware of the fact that Westboro Baptist Church was using his song's funeral as yet one more opportunity to spread their message of perverse, ridiculous hate was both severe and never disputed by those who defended WBC's supposed First Amendment rights; and third, that the majority's straightforward assumption of the awesome privilege the First Amendment contains becomes debatable when one considers a) whether the dominant theme of WBC's protest--proclaiming that God hates homosexuals and is killing American soldiers because we don't execute gays--of the funeral truly "spoke to broad public [and thus protected] issues," b) whether "statements made as part of a cold and calculated strategy to slash a stranger as a means of attracting attention public attention" really should be protected from tort action simply because there is no evidence that the speech in question was motivated by a "private grudge"--as if speech spoken out of anger from one person to another was somehow more disturbing to the public order than an organized and public effort to indiscriminately do the same--and finally c) whether it is really so significant that the protest of the funeral took place on a public street. These are good questions Alito is asking, and he asks them because eight other Supreme Court justices didn't really find them worth asking at all. For them, current First Amendment jurisprudence makes it obvious that, so long as certain exceedingly high criteria are not met, then freedom of speech covers all.

It's a logic which has become second nature to nearly all Americans as the implications of our liberal and individualistic constitutional order has slowly but surely worked themselves out throughout the 20th century; the midst of all sorts of distinctions about protecting certain types of institutions and spaces from certain sorts of harms and offenses, the overriding conclusion remains straightforward--whatever pertains to the beliefs or preferences or choices of an individual, however unoffensive or unpopular or hateful they may be (and, given our proper concerns with protecting minority populations, especially if some person or group with the power of the majority and/or the law behind them considers them such), so long as it does not immediately and seriously threaten the rights of another or the public order, must be protected. Hugo Schwyzer, one of my favorite bloggers, takes this approach ("the right to offend must trump the right not to be offended"); as does Scott Lemieux, one of the smartest legal and political bloggers out there ("It’s hard to celebrate any victory for Phelps and his band of bigots, but that’s the point--you don’t need the First Amendment to defend popular speakers"). It is worth noting that, in the comments to both threads, the philosophical presumptions of both these writers--and those of the very few who take Alito's side--are made clear fairly quickly; in both cases, it's not long before you see the authors and their commenters engaging rather critically over Andrea Dworkin, Catharine MacKinnon, and others who have worked to establish certain types of speech (such as pornography or "hate speech") as by its very nature harmful to the liberty of particular classes or communities of people. They may throw a bone to "communitarian leftists," but by and large they rest confident that, when it comes to the First Amendment at least, the classical liberal or civil libertarian order remains secure. (Full discloser requires that I here acknowledge that MacKinnon's Towards a Feminist Theory of the State, for all the ways I disagreed with it, one of the most influential books I read in college, and I'll even defend Only Words on occasion.)

I take some comfort in knowing that here in Kansas, where the disgusting Phelps "church" originates, there are still people frustrated enough by the hate which Phelps & Co. remain mostly unrestricted in offensively parading about, to grasp the communitarian reality which the individualism of the Court's 8-person majority didn't see as worth engaging at all, even if they wouldn't use that language to name it. I like the comments of Terry Houck, co-founder of the Patriot Guard, a local group that has gone national in its wonderful efforts to provide support to the families of veterans targeted for protest purposes by Phelps's outfit in their moments of grief:

"It just doesn't make sense to allow it," Houck said. "I do understand their decision on our First Amendment rights; however, it is morally wrong and it is spiritually wrong, and all of us who stand together at these funerals disagree that a small group of fanatics can hide behind a false religion and continue to inflict emotional abuse as those families bury their loved ones."

The civil libertarian would politely note the complications with Houck's statement in the context of America's pluralist society--outside a few well-established, mostly church-based exceptions, citizens are not allowed to go about defining certain places or ideas or actions as conditioned by a spiritual or moral order, and hence no sense in calling Phelps's protests "wrong," much less labeling their religious cause "false" and thus capable of being forbidden. That's not what America's about, they would say; we don't involve those kind of establishments or assumptions or orders into our public thinking. By and large, we strive to leave everything as open and as neutral as possible, to allow ideas to flow from any source, whatever their content.

Well, I think the civil libertarians are wrong. I think there is no possible away human beings, social beings that they are, can ever escape the construction, through their public actions, of some sort of moral or civil "establishment" or another. There are values and perspectives that will be debated, and through those debates some will values and perspectives will become settled (despite that some will always contest them), and some of those settled views will become so thoroughly settled that even a Supreme Court committed to reading the First Amendment broadly won't be able to deny that they're worth fighting over. (To my knowledge, despite the narrowing of the Chaplinsky v. New Hampshire decision by R.A.V. v. City of St. Paul, the "fighting words" exception remains constitutional, as Alito noted in his dissent.) Should some communities articulate that doctrine, and the exceptions from free speech protections it allows, in light of widely and locally held religious or moral or entirely personal imperatives fight...well, that sounds to me like democracy in action. Of course, it is essential to protect minorities and minority beliefs from the action of democratic majorities (as a member of a church that has suffered from that in the past, I certainly aware of it), but to assume that providing such protection requires individual members of those communities--whether they be the state of Kansas or the whole United States of America--be forbidden to legitimately pursue claims of distress against the asshole making a mockery of their grief from a distance, strikes me as simply ridiculous.

Well, apparently it struck Alito as ridiculous too. To so thoroughly disarm an individual citizen against a lunatic hate-monger takes the First Amendment, as important as it may be, in an absolutist direction which does not serve our wholly worthwhile communitarian instincts--instincts which, as is apparent through the very way language and cultures function, to recognize and define and defend that which we hold, even if only unconsciously, to be constitutive to our way of being and showing love and respect--at all. Alito isn't such absolutist. Some might call him a statist for that reason, and given his other decisions, many of which I think very much in the wrong, I wouldn't disagree with that sentiment. But I'll give him this: at least he's envisioning the state, when it comes to the First Amendment anyway, as capable of incorporating moralistic and communitarian concerns. Other countries don't seem to have nearly so much reluctance to wade into the difficult, dangerous, but (I would insist) unavoidable waters of boundary-making, between that which is conducive to the public sphere that which isn't. Would that we can learn from them. Maybe, if Alito keeps this up (and if his other decisions don't contribute to our country being reduced to a corporate tyranny along the way), someday someone may discover his dissents, and start taking them seriously. That was the case with John Marshall Harlan's civil rights dissents, after all. Stranger things have happened.


Hugo Schwyzer said...

It's a great post, though of course I do disagree.

The communitarian impulse is beautifully expressed by those who show up to block the WBC with angel wings -- a marvelous example of how unfettered free speech encourages a goodness that would otherwise not be there. Patriot Guard is only acting because the state refuses to wade into these murky waters. Free speech for the offensive invites alternate expressions of speech that seek to heal the wound. And the Patriot Guard is vastly preferable to a tort action, or even worse, handcuffs for the Phelps family.

In Western Europe (where John Galliano was arrested for public anti-Semitism this week), the communitarianism you value so highly is absent as people defer to the state to regulate offensive speech.

Your goal seems to me to be consistent with the majority view of Justice Roberts. Alito would substitute the power of the state for the loving response of the community.

Russell Arben Fox said...


Thanks for the kind and thoughtful response. I agree with you that civil associations like the Patriot Guard are deeply admirable, but I decline to accept that there is an either/or division here--that enabling Snyder to validate the obvious consensus that what the Phelps do and say in disgusting by suing them, and thus I suppose mitigating the free speech protections which the Phelps's claim, would somehow have made the formation of the Patriot Guard less likely. To assume there is such a relationship there, is to fall into the libertarian trap, I think--we mustn't be able to collective expression ourselves through democratic government, because any majoritarian action whatsoever is a threat to liberty. That ways lies Citizens United, I fear.

I really don't see how my position is "consist with the majority view of Justice Roberts." On my reading, he is a classical liberal, one that doesn't care too much about inequality or morality so long as the markets operate as they should. Alito himself is way to sympathetic to markets as well, but at least his free speech decisions makes it clear that he sees it possible for the state to also, among many other things, sometimes actually democratically express (or enable the independent action consistent with the expression of) collective opinion, and that's worth a lot, or at least so I think.

Shena said...

Lot of folks might disagree, but I think the Supreme Court got it right on this.

Russell Arben Fox said...

Shena, I suspect that a popular vote would agree with me...but when it comes to the professional, legal debate over the issues, I'm very confident that your position, and that of the majority on the Supreme Court, would be firmly supported. Especially in the blogosphere, civil libertarians are hardly lacking.

Matthew Stannard said...

It's interesting to me that attorneys for WBC didn't contest the emotional distress itself. Although courts are divided on this, the consensus seems to be that an IIED tort is a "balm reserved for those wounds that are truly severe and incapable of healing themselves"--an injury "so acute that no reasonable [person] could be expected to endure it." B.N. v. K.K., 538 A.2d 1175 (1988). The facts in this case don't seem to support that--in fact, I'd argue that WBC's universal lack of credibility is itself a mitigator. Being pissed off that crazy people are protesting your child's funeral does not seem to meet the legal threshold for emotional distress. Irrelevant to your fine post (with which I disagree), and to the decision, of course, but curious nonetheless.