Galliano, Westboro Baptists, and the question of free speech

Despite the protestations of Albert Sydner, the father of a young soldier killed in Iraq, the American Supreme Court has ruled in favour of the Westboro Baptist’s right to picket military funerals. The religious group has demonstrated at 200 funerals, sporting events, and concerts, claiming that the wars in Iraq and Afghanistan are god’s way of punishing America for tolerating homosexuality. Their protests are quiet. There is no personal abuse, no threats of force either, and they operate 1,000 feet from the church in which the funeral takes place, under police supervision. They merely hold signs with offensive messages such as “God Hates You” and “God Hates Fags”. No matter how morally outrageous these messages are, the Court has been clear that the picketing is protected by the First Amendment and, therefore, should be allowed. Samuel Alito was the only judge who dissented in the Supreme Court decision. He argued that a commitment to free speech does not license verbal assault. I found myself sharing Alito’s intuitions and that, considering his conservative and libertarian views, put me in an uncomfortable position. So, I asked myself, why do I oppose the Court’s decision? Another piece of news helped me to think through this issue. While the Westboro Baptists were celebrating the verdict, John Galliano was fired for declaring his admiration for Hitler and he will now be prosecuted. These two cases can be compared in several respects, but I will point to two.

One of the things emphasized in the Court’s decision is that “inflicting great pain” does not justify punishing the speaker. Many people may believe that Snyder’s suffering should be taken into consideration, and will, therefore, find the Court’s reasoning obnoxious. I think the Court is right. Subjective attitudes and emotional reactions alone cannot be used to limit our rights. Individuals get upset about all sorts of things and our rights must be able to withstand these assaults, otherwise they will be too weak.

There might, however, be something else going on in both cases. The targets of the Westboro Baptists and Galliano, namely, homosexuals and Jews, are groups that are especially vulnerable because they suffered from discrimination and genocide in the past. If hateful speech against these groups is left unpunished, another wrong will be added to the injustice that we have already committed against them. By condemning these statements we are also condemning past injustice. Our reaction is not so much related to the emotions these hateful statements trigger as much as it is a product of judgments that we, as a community, hold and want to express. This implies two things. First, we should punish certain kinds of speech even if no single member of these vulnerable groups claims to be offended. Second, the same line of reasoning could not justify punishing speech that is harmful but is not directed to an especially vulnerable group. Words might wound taxi drivers, school teachers or bald people but they are not the victims of any historical injustice.

The Court acknowledges that certain statements can hurt, but the verdict makes clear that Americans have chosen to protect even hurtful speech on public issues to ensure a healthy public debate. I find it very hard to see how the question of whether god hates homosexuals or wants to punish a country can be considered a public issue, but let that pass. The reason why we should care about having a free public debate is that it’s an essential feature of a good democracy. We can elaborate two different arguments that link free speech with democracy. The first one is mainly focused on the recipients of the speech. For a democratic system to work we need an informed electorate and by allowing free flow of information people’s knowledge on important issues is likely to increase. The second argument has to do with the speaker and the quality of her arguments. In a “marketplace of ideas” all views are challenged by being confronted with one and other. That forces each speaker to rethink his position and to support it with good reasons.

These are two of the most attractive defenses of freedom of speech although it’s quite difficult to fit the cases mentioned in this line of reasoning. People’s knowledge in no way increases when they are exposed to falsehoods or biased personal opinions like “women are inferior”. On the contrary, someone who is raised in false beliefs is likely to have a distorted view of reality. One could say though, that the other argument still works. Hateful speech forces us to provide better arguments in favour of our convictions. It is strange to say that we need someone telling us that “blacks are slaves” in order to strengthen our moral belief that all human beings are equal. We are all fully aware of what slavery was and meant and we can always bring examples of what we did in order to teach future generations the value of equality. To take for granted that blacks are equal and not to consider their status as an open question that has to be discussed in the public sphere is a sign of our moral progress. Britain, France and most other European countries punish racial or anti-Semitic speech – like Galliano’s – and their democratic systems don’t seem to suffer because of that. To put it differently, surely there is a lot of room for improvement in our democratic systems but to allow hateful speech doesn’t go in that direction.