October 7, 2010
It now appears certain the Supreme Court will rule against the First Amendment. “The justices appeared inclined to set a limit to freedom of speech when ordinary citizens are targeted with especially personal and hurtful attacks. The First Amendment says the government may not restrict free speech, but it is less clear when it also shields speakers from private lawsuits,” reports the Los Angeles Times  this afternoon.
Jefferson, Madison and other framers considered free speech a cornerstone of the republic.
If the Court rules against the First Amendment, it will not only effect demonstrations and public displays, but also curtail freedom of speech on the internet, as one Justice pointed out today.
The case now before the Court concerns the Phelps family from Topeka, Kansas, who have picketed military funerals and proclaimed that God is punishing America and its soldiers for its tolerance of homosexuality. The case reached the Court after a Maryland father of a Marine killed in Iraq sued the Phelps family for holding up signs near his funeral that said “Thank God for IEDs” and also for posting remarks on their website that accused Albert Snyder of having raised his son “to defy the Creator” and “serve the devil.” A Maryland court awarded Snyder $5 million in damages, but the award was subsequently thrown out on the grounds it violates the First Amendment.
The Los Angeles Times may claim that the First Amendment is unclear, but as former Supreme Court Justice Hugo Black noted in in Rosenblatt v. Baer, the wording of the First Amendment makes it perfectly clear that Congress shall make no law abridging the freedom of speech or the press. It does not say freedom of speech shall be denied and held unlawful if it is distasteful and produces an emotional response.
“An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment,” Black opined in New York Times Co. v. Sullivan.
Thomas Jefferson, James Madison and other framers were products of the Age of Enlightenment and as such believed in the power of reason and the search for truth. They considered freedom of expression and inquiry essential to the process of debate and discovery required for the maintenance of liberty and a republic.
In the American Colonies, people were convicted of seditious libel for speaking or writing against the King of England and his agents. In response, the Founders created the First Amendment and made it the cornerstone of the Bill of Rights. In the not too distant past, the Court ruled that political speech was what the Founders had in mind when they wrote the First Amendment.
According to one libertarian thinker of the period, a citizen had the right to “say everything which his passions suggest; he may employ all his time, and all his talents… to do so, in speaking against the government matters that are false, scandalous and malicious,” and yet he should be “safe within the sanctuary of the press.” Speech was considered beyond the reach of criminal sanctions. Only “overt acts” were punishable.
Snyder v. Phelps does not concern overt acts. It focuses on “outrageous” speech that is claimed to have caused “severe emotional distress.”
In 1964 in the New York Times v. Sullivan, the Supreme Court ruled that civil liability for speech may violate the First Amendment due to the fact the threat of massive damages tends to dampen the exercise of free speech. From 1880 onward, state courts have treated constitutional free expression guarantees as constraining civil liability. No longer.
Congress provided the enemies of free speech and the First Amendment an ally when it confirmed Elena Kagan to sit on the bench. In a 1993 University of Chicago Law review article, Kagan wrote , “I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation.” (Emphasis added.)
As noted by the Los Angeles Times, the Supremes earlier today “sounded sympathetic” to rolling back the protections afforded by the First Amendment.
Moreover, Justice Stephen G. Breyer noted that the court’s ruling will have an impact on the internet, since it tests whether vicious personal attacks can lead to lawsuits.
If the Supremes rule that First Amendment no longer protects controversial and even emotionally hurtful speech, the internet will no longer be an open forum for the free expression of opinions and ideas.
How many bloggers and journalists in the alternative media have pockets deep enough to defend against politicians and public figures who may claim “severe emotional distress” in response to criticism?