When John Stuart Mill wrote “We can never be sure that the opinion we are endeavoring to stifle is a false opinion; and if we were sure, stifling it would be an evil still,” in 1859 (You can get On Liberty for $4.68!), he obviously could not have known about the Westboro Baptist Church, but he didn’t need to. Vile, hate-spewing demagogues are a fixture in every era of human history. Mill had likely encountered his own Fred Phelps. I’d like to think he’d be pleased that the Supreme Court ruled 8-1 that Phelps’ group’s particularly noxious brand of speech (picketing Marine funerals) is still worth protecting (good additional analysis from Josh Blackman).
Make no mistake, these are despicable, bigoted people. Our country would probably be better off without them. But our country would definitely be worse off if it set the precedent that they should be silenced because the content of their speech is offensive. I’m not disputing its offensiveness, but in certain regards, that is exactly why it needs protecting. Everyone can agree the person standing up at a town meeting or handing out pamphlets on the street should be protected. It’s the speech we don’t like, that makes us squeamish, that forces us to see what we’re made of. And this particular case would have hinged on what was being said, since, as Ilya Shapiro summarizes:
A private cemetery can and should remove unwanted visitors for trespassing — but the Phelpses didn’t enter the cemetery. A town can pass ordinances restricting the time, place, and manner of protests — but the Phelpses stayed within all applicable regulations and followed police instructions. Violent or aggressive protestors can be both prosecuted and sued for assault, harassment, and the like — but the Phelpses’ protests did not involve “getting up in the grill” of people, as their lawyer put it during oral argument.
The cruel irony is that Marines and other members of the armed forces often enlist for the purpose of protecting these rights, or to help others obtain them. It’s surely no comfort to the Snyder family, but it’s good to know that we’re able to reassert just how important speech is here. I’m glad there’s nobody out there trying to cheapen this entire subject by trying to score cheap partisan points. Oh, wait: