As much as I despise the Westboro Baptists “Church” and everything it stands for (hatred, bigotry, homophobia, nastiness, getting themselves in the news), the Supreme Court’s 8-1 ruling that their speech is protected under the 1st Amendment didn’t surprise me at all. Here is what I wrote on September 28, 2010, in response to Jim Webb’s comments that the Westboro scumbags were not protected under the 1st Amendment (note: almost everyone agreed with Webb, including most states’ attorneys general, Mark Warner, Ward Armstrong, and kindasorta Bob McDonnell)
…the more I think about it, the more I believe that this group’s hate speech, despite being utterly despicable, is probably protected under the 1st Amendment. In fact, the only legitimate reason I can think of why it should not be protected stems from the Schenk case, if “the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” If that’s the case with the Westboro Baptist Church, that it makes people so angry that it incites them to violence, then how would the 1st Amendment protect all kinds of speech that we disagree with, find intolerable, feel enraged about, etc? As much as I despise the Westboro Baptist Church and wish I never had to hear from them again, I can’t think of a justification for denying them their 1st Amendment constitutional rights.
For once, Ken Cuccinelli and I agreed on something, with Cooch declining to file a brief in Snyder v. Phelps, remarking that “the case could set a precedent that could severely curtail certain valid exercises of free speech.” Fine, I agree with that.
But here’s the problem. As I wrote in June 2010, Cooch is a complete hypocrite, assaulting speech when he doesn’t like it, defending it when it doesn’t bother him so much (apparently):
…the same guy who is busy assaulting free speech (and free academic inquiry) at the University of Virginia is, suddenly, a committed defender of 1st Amendment free speech rights? Even when it’s inflammatory, vicious, hate speech against the family of a U.S. Marine who died defending our country?
Yes, we need to protect speech. That may even include speech we find to be wildly offensive (e.g., Westboro’s “thank god for dead soldiers” at a Marine’s funeral), as per the 1st Amendment. For instance, take the famous Skokie case, in which the American Nazi Party chose to march in a town with numerous Holocaust survivors. The Supreme Court decided “that the use of the swastika is a symbolic form of free speech entitled to First Amendment protections and determined that the swastika itself did not constitute ‘fighting words.'”
How is that situation different from this case? Perhaps it isn’t, and perhaps Ken Cuccinelli is merely being a principled defender of the 1st Amendment right to free speech. The only problem is, if that’s the case, then why is Cooch – a notorious global warming denier – simultaneously pursuing a witch hunt against free speech against a former UVA climate scientist? Does anyone else see a wild, logical inconsistency here?
Of course, Cooch and his supporters will gloat how he was “right” about this one. In fact, he WAS right, but not necessarily for the right reasons. With someone as extreme and crazy as Ken Cuccinelli, you’ve got to filter every word he says through his bizarre, frightening, off-the-deep-end worldview. You also have to consider whether he would have taken the same position if a Republican had been in charge and proposed the same exact thing (e.g., the individual mandadate or “cap and trade,” BOTH originally conservative Republican ideas). Or, in this case, if the “protestors” had been a group of Muslims (or another religious minority, or atheists) screaming at the funeral participants? I strongly doubt it.