Jonah Goldberg

Fred Phelps, the deranged pastor of the Westboro Baptist Church -- which is more like a family entourage of psychos -- has devised a scheme for getting attention: He desecrates military funerals. His group shows up chanting hateful slogans and carrying signs reading "God Hates Fags," "Thank God for IEDs" and "Thank God for Dead Soldiers." They claim that these tragic deaths are divine punishment for social acceptance of homosexuality.

Albert Snyder, the father of a fallen Marine, sued Phelps for protesting his son's funeral. He won millions. The Supreme Court overturned that verdict Wednesday.

I think the decision is a travesty. But, alas, after reading it, I also find it perfectly defensible, probably even correct. Anyone familiar with the concept of "garbage in, garbage out" can appreciate that this isn't necessarily a contradiction.

The court had to deal with the narrow facts of this case, the relevant trial history and precedents, and doing so, they came out in a terrible place: in effect defending a "right" Phelps should not have. As Chief Justice John Roberts put it, "The reach of our opinion here is limited by the particular facts before us. ... (We rely) on limited principles that sweep no more broadly than the appropriate context of the instant case."

But you wouldn't get the sense that this was a narrow, even shallow, victory for free-speech absolutists based on much of the commentary about it. Nearly all of it boils down to a single insight: Just because speech is offensive doesn't mean we can ban it.

Making funeral protestors "shut up" is tempting, concedes the Detroit Free Press, but "anyone who values their freedom should understand why that's just not the American way to deal with hateful, hurtful speech."

The Supreme Court simply confirmed that "free speech has meaning only if objectionable speech is included," insists USA Today.

These are fine as expressions of general constitutional values shared by most of us. But they're absolutely useless for figuring out how to treat speech in the real world.

For example, in its decision the court upheld severe regulations on funeral protestors. Indeed, Snyder himself couldn't make out Westboro's signs or hear their chants at the funeral, because Maryland officials required the protests to be at least 1,000 feet away (though I'd be fine with making it 10,000 feet). It was only days later that Snyder saw on TV what the protesters were saying, or read on the Internet their vile personal attacks on his family.

Why don't these restrictions offend free-speech absolutists?


Jonah Goldberg

Jonah Goldberg is editor-at-large of National Review Online,and the author of the book The Tyranny of Clichés. You can reach him via Twitter @JonahNRO.
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