Perhaps because, even though we like to mouth platitudes, we actually recognize that some speech is so vile, so beyond the pale, that we as a society understand that it might impinge on other things we hold dear -- like the reasonable expectation that a parent might have to bury his child respectfully and in peace.
And that's why Phelps' tactics are the real issue, as Justice Samuel Alito's compelling dissent makes clear. Westboro deliberately taunts the grieving family, tipping off the press in the process, because it knows such heartless cruelty counts for "news." If the press grew bored with the protests, Westboro would likely invent a new tactic. Screaming obscenities at first-graders perhaps?
Nobody questions Phelps' right to say what he wants to say -- about anything. The question is whether funerals should be "no-free-speech zones," as some absolutists put it.
Forty-three states already say, in effect, that yes, military funerals should be zones of relative decorum. What remains a mystery is why the other seven states haven't followed suit.
Free expression and debate will continue to thrive in the United States even if we prohibit turning cemeteries into speakers' corners and coffins into soapboxes.
Oh, but what about the terrifying prospect of a slippery slope that in short order will take us from banning the desecration and exploitation of funerals to an Orwellian society?
Stephen Wermiel, a professor at American University, warns: "If you start defining and banning offensive speech because someone doesn't like it, it's hard to draw the line, and one day you wake up and find you don't have much protected speech."
We draw lines all the time. It's what serious, self-confident societies do. I would rather get the placement of the line wrong from time to time than live in a society that says there can be no lines.
Unfortunately, America is ensorcelled by categorical thinking. Some offensive speech is worthwhile, constructive and necessary. Other offensive speech is reprehensible and indefensible. But, we are told, whether its garbage or gold, it has equal standing before the law. And that's why so much garbage goes in, and so much comes out.
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