Joel Mathis and I tackle the question of whether a multi-million dollar judgment against the contemptible Fred Phelps and his Westboro Baptist Church is an affront to the First Amendment. Joel elaborates on this post, in which he sides with Phelps and flatly asserts: "Either you believe in the First Amendment... or you don't." And Joel worries that "silencing Fred Phelps might be a step down the slippery slope to silencing us all."

This is simply hyperbole, I'm afraid. It's not a matter of merely "believing in" the First Amendment, because nothing is ever that simple. And while we should be ever mindful of slippery slopes, we should take care to avoid slippery slope fallacies.

But it's certainly fair to say Joel's position is shared by the American Civil Liberties Union, UCLA libertarian law prof Eugene Volokh, University of Chicago liberal law prof (and two-time podcast guest) Geoffrey Stone, the Cato Institute's Ilya Shapiro, and the editorial pages of most major newspapers, including the New York Times and the Wall Street Journal -- a lot of smart people who just happen to be wrong.

"Hard cases make bad law," Joel writes in the column. "Albert Snyder deserves our sympathy. But his hard case shouldn't lead the Supreme Court to make bad law for the rest of us."

Here's my take:

This isn't a hard case at all.

Fred Phelps and his congregation have the right to believe anything they please. They have a right to assemble peaceably and exercise their religious beliefs freely. They have a right publish newspapers and weblogs preaching against homosexuality. But the Westboro Baptist Church has no right to impose itself on a private funeral.

Context is crucial. When a group of people stands outside a military funeral -- even if it is 1,000 feet away -- holding signs saying "Thank God for Dead Soldiers" and worse, you needn't be an Ivy League constitutional scholar to get the point.

As Sean Summers, Snyder's lawyer, explained: "(Phelps and family) turn funerals into a circus. They send out fliers in advance. There were... state, local, county police. There were ambulances. There were fire trucks. There was a SWAT team." Police even rerouted the funeral procession so the Snyders wouldn't see the protest.

In short, Phelps turned a private event into a massive public nuisance.

Phelps's broader message may be a sinful and unrepentant nation brings such calamities upon itself. But if you're the grieving family of a dead Marine, why should you have to entertain that idea for even one moment? What makes the case "hard" is the amazing logical contortions the Supreme Court has performed over the decades in the realm of First Amendment law. Fact is, the freedom of speech is not unlimited. We make exceptions for libel, slander, and "fighting words," for instance.

When free speech collides with the right to privacy, privacy should prevail. Phelps has a right to be "outrageous." But his outrageous speech in this particular context -- the context of a family privately mourning the death of a son -- is a breach of the peace, an assault.

Barring the Phelps circus from future funerals does no harm to the First Amendment whatsoever.

Given the space constraints of the column, some elaboration is in order here. (Click "Read More" below the icons.)

When it comes to freedom of speech, my bona fides are by now thoroughly established. As an editorial writer at the Press-Enterprise in Riverside, I argued vigorously for publishing the Danish Muhammad cartoons. The point was not to insult Muslims, but rather to help readers understand what the controversy was about -- remember, there were riots, beatings, death threats. There was tremendous resistance in the newsroom, but eventually my position prevailed. As a result, we were one of the few papers in the United States to publish even one of the cartoons, although it was one of the less incendiary images.

H.L. MenckenMy thinking on the subject has been shaped by thinkers who may seem strange bedfellows: H.L. Mencken and Hadley Arkes. Mencken was an "extreme libertarian" on matters of free speech, an agnostic and something of a bourgeois nihilist, and a journalist who rallied behind censored authors and once risked jail for himself and censorship of his magazine, The American Mercury, for allegedly peddling obscene material in Boston. Arkes is one of the nation's leading exponents of natural law, a recent convert to Roman Catholicism from Judaism, and an academic whose lasting contribution to politics may be his tireless labor to pass the Born-Alive Infants Protection Act of 2002. Hadley also one of my favorite professors, even though I've never taken one of his classes.

What do Mencken and Arkes have to offer to this conversation?

Mencken famously wrote in 1920, "I am an extreme libertarian and believe in absolutely free speech, especially for anarchists, Socialists and other such fools. ...I am against jailing men for their opinions, or, for that matter, for anything else. I am opposed to religions, because all of them seek to throttle opinion."

Like my friend Joel, the law profs, and newspaper editorialists, Mencken was engaging in a bit of hyperbole there. Because at some level, most everyone understands there are limits to every right. As the illiberal Oliver Wendell Holmes put it, "The right to swing my fist ends where the other man's nose begins." Turns out, Mencken echoed that very theme in his in 1948 interview with Donald H. Kirkley for the Library of Congress. What he told Kirkley 62 years ago is directly relevant to the discussion we're having today:

I get along very well with all kinds of ecclesiastics and all kinds of pious people, because I don’t have any evil conscience in the matter... I assume they’ve got a right to believe anything they please, being an extreme libertarian, and believing in free speech and every other kind of freedom, up to the last limits of the endurable.

I think there is a limit beyond which free speech can’t go, but it’s a limit that’s very seldom mentioned. It’s the point where free speech begins to collide with the right to privacy. I don’t think there are any other conditions to free speech. I’ve got a right to say and believe anything I please, but I haven’t got a right to press it on anybody else.

For example, take for instance the Catholic Church, which I am on good terms with personally but have no belief in whatsoever. I’ve got a right to print my dissent from its doctrines... I’ve exercised that right for many years. But I have no right to go on the cathedral steps on Sunday morning when the Catholics are coming out of high mass and make a speech denouncing them. I don’t think there’s any such right. Nobody’s got a right to be a nuisance to his neighbors...

Or to hurt his neighbors’ feelings... (Kirkley interjected.)

...To hurt their feelings wantonly. If they come to him and say, “What do you think of this mass we’ve just finished?” I think he has a right to answer. But he has no right to press his opinions on them...

Is there any real difference between denouncing Catholics "coming out of high mass" and picketing the funerals of dead servicemen because "God hates America" and their deaths are the direct result of Americans' failure to subscribe to the Westboro Baptist theology? Not really, no.

Mencken goes on to say there "ought to be some way" to ensure people's privacy against such intrusions, but I suspect it's no accident he didn't say "there ought to be a law." Perhaps a civil remedy of the type Al Snyder pursued, seeking personal damages from the Phelps clan?
Hadley Arkes
One problem with Snyder seeking personal damages, as Arkes pointed out to me in an e-mail the other day, is the standard of "intentional infliction of emotional distress" is inapt in cases such as these. It's inapt because a criminal remedy would be far simpler and, in fact, more just.

How so? In his latest book, Constitutional Illusions & Anchoring Truths, Arkes argues "that certain doctrines once thought clear, and cases long thought settled in our law, have been the source of illusions or tricks of the eye." He shows, in intricate detail, how the logic of natural law can penetrate the illusion. He revisits several First Amendment decisions, including Near v. Minnesota, New York Times v. the United States (a.k.a. the Pentagon Papers case), and Snepp v. the United States. Arkes in the introduction discusses one of the Supreme Court's cross burning decisions, Virginia v. Black, to show how judges "back themselves into relativism," a recurring theme in his work. In addressing Justice Sandra Day O'Connor's contorted reasoning for invalidating Virginia's cross-burning law, Arkes focuses on why a legislature might have passed the law to begin with:

When a statute bars the burning of crosses, targeted at a class of persons, no one with a modicum of wit could suppose that the statute was doing anything but condemning and forbidding. What it figured to forbid were wrongful acts, acts animated by the intention of assaulting or intimidating. And no one could have supposed for a moment that the statute meant to forbid, say, the burning of crosses in a theatrical production or a film such as "Mississippi Burning."

In other words, the legislators were not acting in a random way, without moral common sense -- and neither, as it turned out, had the assailants...

The meaning of the act should have been plain enough to be judged by people of ordinary sense, who find themselves every day making discriminations among acts that are threatening or harmless, justified or unjustified. (Emphasis added.)

Arkes restated the point again recently, when another firebrand reverend -- Terry Jones of Florida -- incited widespread handwringing with his plan to incinerate copies of the Koran on the anniversary of the September 11 attacks. Remarking at First Things on the tendency of politicians and pundits to affirm Jones's right to burn the Korans, even as they denounced him for planning to do so, Arkes observed:

But surely there could not have been a clearer sign of the tendency of jurisprudence in our own time to detach the law so sharply from the moral ground that justifies -- and limits -- the making of laws. Or to put it another way, to detach what is “morally right” from what is “legally right.” That detachment increasingly raises a problem of coherence for the law—as it did for the clergymen, who insisted on denouncing as deeply “wrongful” what they took as eminently “rightful” in the eyes of the law.
(Emphasis added.)

The clue to the problem should spring out as soon as we run through the precedents: the burning of draft cards, then the burning of the American flag, and finally the burning of crosses outside the homes of black families. It took no small inversion of the moral sense of the law for justices of the Supreme Court to talk themselves into this line of cases, so that even conservative jurists could persuade themselves that there is nothing less than a constitutional right to burn crosses in a gesture of assault and intimidation; that the law somehow lacks the standards for judging the “content” of speech.

"Common sense," "moral sense" and "ordinary wit" are terms that appear frequently in Arkes's writing. They are fundamental to understanding how and why natural law informs constitutional law. As Arkes put it in his piece on Terry Jones, "Ordinary folk, without college degrees, can discriminate with high sensitivity the gestures and words of assault—they know when they are being treated flippantly or insulted. The law, taking its measure from common sense, did not think it was incapable of making the discriminations that truck drivers and construction workers have no trouble in making."

Now contrast Professor Arkes with our friend Professor Stone, who made this remarkable point about Snyder's lawsuit at the Huffington Post:

Mr. Snyder's position is straightforward: There is a time and a place for everything. Even if Phelps' offensive and odious speech is otherwise protected by the First Amendment, it is not constitutionally protected in the special circumstances of this case. A funeral is, after all, a solemn occasion at which mourners should be free to grieve in peace, without having to confront such odious and offensive messages. Thus, although Phelps may have a First Amendment right to display his odious and offensive signs on a public street or in a public park, he has no right to do so near a funeral.

As a matter of common sense, this may seem perfectly reasonable. As a matter of First Amendment law, however, it is flat-out wrong, as the court of appeals rightly held. Sometimes common sense misses the forest for the trees.

Never mind cultivating a moral sense and forget ordinary wit. In Stone's view, we must jettison common sense because the Bill of Rights requires nothing less! Sorry, but that's nuts.

Again, the choice is not "belief in the First Amendment" or a slippery slope into silence. It is recognition of the simple fact, until recently acknowledged by our laws, that certain forms of speech, at certain times and in certain places, are wrongful. And the law can provide a remedy without interfering with Fred Phelps's basic right to preach against the evils of homosexuality, or implicating in the least Joel Mathis's right to call for John Yoo's disbarment and Dick Cheney's prosecution, or my right to dissent from the policies of the Obama administration.

We now live in a political environment in which liberals and some conservatives will argue that a group of zealots imposing their worldview upon a family's private grief should be protected under the Constitution, but political speech by businesses and labor unions threatens the very fabric of the republic and should be banned. Pundits have fevered dreams about seditious talk show hosts, but Fred Phelps is supposed to be an unlikely First Amendment hero. Nonsense.

We're well past the libertarian Mencken's "last limits of the endurable," and deep into a toxic form of relativism.