The lede on the Daily Beast caught my attention:
“In a big win for intolerance, the Kansas-based Westboro Baptist Church, known for its vitriolic, anti-gay protests at the funerals of U.S. troops, won an appeal Wednesday at the Supreme Court in a case weighing the constitutional rights of free speech and privacy.”
Oh, the United States Supreme Court’s opinion in Snyder v. Phelps is a big win, all right — but not for intolerance. I’d rather hail the decision as a ringing endorsement of tolerance itself.
In Snyder v. Phelps, the court struck down on First Amendment grounds a jury award against Fred Phelps of the Westboro Baptist Church. Phelps and his nepotistic array of rabble are well known in these parts, their inchoate “God hates fags” signs popping up seemingly everywhere in the interest of being offensive.
A few weeks ago this man and his followers were actively considering a protest at the funeral of 9-year-old Christina Taylor Green, killed in the shooting of Gabby Giffords and 18 others in Tucson.
Albert Snyder sued Phelps after the Westboro protesters picketed the funeral of his Marine son, Lance Cpl. Matthew Snyder, who was killed in a traffic accident while on duty in Iraq.
A jury found Phelps liable for intentional infliction of emotional distress and ordered him to pay $10.9 million, which the judge reduced to $5 million. By an 8-1 vote, the court held that because the offending speech concerned “public issues,” it is entitled to “special protection” under the First Amendment, and the verdict cannot stand, according to an article published Wednesday in the Wall Street Journal.
The immediate reaction by many to First Amendment cases featuring wildly unpopular defendants is outrage: Why should such vile speech be protected? What societal benefits could possibly accrue from speech so bereft of ideas, so hateful, so unbalanced?
This is when it’s important to remember that the First Amendment requires no such taste test, and that the true genius of our nation’s commitment to free speech lies in its dependence upon tolerance of that which we most deplore.
Tolerance is baked right into the First Amendment. Columbia University President Lee Bollinger’s seminal work, The Tolerant Society, changed the way I thought about free speech forever, and it is the perfect explanation for tolerating Phelps and his ilk.
Bollinger said that while we have always tended to protect speech because of our belief in the inherent value of self-expression — the concept that the free interchange of ideas leads us inexorably to truth, while bad ideas die on the vine — that’s not why we should protect truly extreme, hateful speech.
No, the real reason to protect speech like Phelps’ lies in the muscles it works in the body politic: Dealing with the hatemongers of the world helps us develop extraordinary self-control toward antisocial behavior.
Tolerance can also lead to unexpected societal benefits, a lesson I learned firsthand when the Phelps clan came to my idyllic college town – Columbia, Missouri.
The offense? A retired pastor at the Missouri United Methodist Church had begun a ministry for those with friends and family in the LGBTQ community. That ministry, coupled with the city's approval of a domestic partnership registry, was more than enough to bring the Westboro folks to town.
A few months later, they announced they were coming back – this time in force – after a local arts group invited a gay men’s chorus to town for a performance, setting off the predictable reaction from Phelps.
This time, knowing that Phelps and his followers had every right to speak because of the First Amendment, the conversation turned quickly to best responses.
So what happened? My church invited the whole choir in and members joined them for a sit-down dinner before the show, then most of the crowd all walked en mass right into the performance.
The Phelps folks never showed. It didn’t matter. Tolerance won the day, created by the intolerance of others.
So please, let’s not describe Wednesday's decision as a victory for intolerance.
Communities confronted with hateful speech must struggle to find an appropriate, civil response, at a moment fraught with emotion produced by loathsome people. Whenever that response ends in speech, rather than violence, we’ve won a victory for tolerance, for democracy and for the social compact.
Charles N. Davis is an associate professor at the Missouri School of Journalism, and he conducts scholarly research on First Amendment issues.