Today there are two court cases involving freedom of speech in the western democracies that beg the question about if there should be boundaries around free speech. The first is the trial of Dutch Parliamentary Minister Geert Wilders (BBC News Europe 2010) . He is on trial for inciting hate through speeches and public writings. The second case is Snyder v. Phelps in the US Supreme Court (US Supreme Court 2010) . In this case Phelps is the pastor of a church which has been protesting at the funerals of fallen US service men and women claiming that their deaths are punishment for the US toleration of homosexuality. Snyder, the father of one of the servicemen is claiming that the protests caused emotional harm to his family at a time when they were vulnerable and violated his first amendment rights of freedom of peaceful assembly. Both of these cases can have far reaching impacts no matter which way they are decided.
The Netherlands, as is much of Europe, is going through a transition. For much of its history the Netherlands has been pretty homogeneous in racial and religious makeup. However in the past couple of decades instability in the Middle East has resulted in a large migration of Muslim immigrants and refugees throughout Europe. Many in Europe see this as a threat to their way of life. This can be seen in the recent acceptance of laws banning the wearing of Burqas in public (Castle 2010) . Wilders has said that the trial “… will not deter him from his mission, which is to stop the "Islamisation" of the Netherlands” (BBC News Europe 2010) . He has called for a ban on immigration of Muslims as well as for the banning of the Koran, which he refers to as a “facist book”. What makes his case so visible is that he is in a key position within the Dutch government as the key lynchpin in a coalition of minority parties that combined control 76 of the 150 seats in the parliament. The Netherlands is also a place which has a keen awareness of what happens when a zealot preaching hate starts to gain power. Anne Frank’s house sits on a canal right in the heart of Amsterdam. Just a short train ride away you are in Arnhem where some of the bloodiest battles of World War II took place (the location for the movie A Bridge To Far). Reminders are everywhere of the dark days of the 30’s and 40’s when hatred of minorities ran wild and death was the result for anyone who tried to defend them. Even for those who tried to just wait out the storm starvation and mass destruction where a way of life. One can understand the fears of allowing that kind of hate to overtake the country once again. Currently the trial is on hold as Mr. Wilders has called for the judicial panel be replaced as he feels he cannot get a fair trial following a comment from the head judge (BBC News Europe 2010) .
In the US the case of Snyder v. Phelps is of a different nature. It is about if freedom of speech is allowed everywhere at all times no matter what the impact is to those around. Phelps and his small congregation of 30 members would travel around the country to funerals of fallen soldiers to launch protests claiming that “The Lord no longer builds the American house; nor does the Lord watch over and protect America. These soldiers are dying for the homosexual and other sins of America. God is now America's enemy, and God Himself is fighting against America” (Westboro Baptist Church 2010) . This month alone they plan 19 protests at funerals throughout the country (Westboro Baptist Church 2010) . In the case of Snyder V. Phelps there are three questions being considered. First is if the previous Supreme Court ruling in Hustler Magazine v. Fallwell apply to private citizens (US Supreme Court 1988) . In this case it was ruled that Hustler Magazine did not engage in wrong doing by printing a parody comic showing Mr. Fallwell in a clearly fictional situation no matter how tasteless it was. The ruling states: “We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i. e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true” and that “Here it is clear that respondent Falwell is a "public figure" for purposes of First Amendment law” (US Supreme Court 1988) . In this case the family of the fallen soldier are clearly not public figures so the court must rule if it also applies to private citizens as well.
The second question “Does the First Amendment's freedom of speech tenet trump the First Amendment's freedom of religion and peaceful assembly?” (US Supreme Court 2010) . The last question is “Does an individual attending a family member’s funeral constitute a captive audience who is entitled to state protection from unwanted communication?” (US Supreme Court 2010) . I was not able to find if the protesters had been granted permission, or for that matter required any permission, to gather across the street from the locations where the funerals are being held. It is a tough question about the captive audience because the word “captive” here applies to emotional captivity. While one may have the physical ability to leave the location where the offensive speech is taking place they may not have the emotional ability to leave in the time of grieving.
In a time where we are seeing more demagogues pondering for our attention as weariness from war and a sluggish economy drag on, the lack of respect and responsibility with speech is becoming more apparent. Freedom is a wonderful thing and we are blessed to have a constitution and rule of law to protect that. At the same time, though, free speech comes with great responsibility. Each of these people involved in all of these cases deserve the right to have their opinions and to speak about them. However there are constructive ways to make your point and destructive ways. With the availability of instant information what people say become sound bites that are spread the world over in an instant and a great deal of context could be lost. As we see today in our political discourse people run with snippets of information and fail to grasp the full meaning of issues and the long term impacts of their decisions. In both of these cases the respective courts must grapple with the long term impacts of whichever way they decide. We as listeners though also have a responsibility to educate ourselves on what these and other demagogues are saying as they try to appeal to the emotional sides of issues. They are counting that by playing to the emotional side that the people they are talking to won’t question and learn about all sides. In a society of free speech I feel I have a duty to dig deeper and not take what is said for granted. I also feel I have a responsibility to use my power of free speech for good and show respect to others in the way I communicate my message. I hope I do that. Please feel free to share your opinion on these cases or on our basic freedoms. I look forward to what you have to say.
Here is a news report on the arguments presented today 10-6. As soon as the official transcript is posted I will add that. http://www.cnn.com/2010/CRIME/10/06/washington.free.speech.trial/index.html?hpt=Sbin]
And here is the official transcript in today's arguments of Snyder vs. Phelps
http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-751.pdf
Here is a news report on the arguments presented today 10-6. As soon as the official transcript is posted I will add that. http://www.cnn.com/2010/CRIME/10/06/washington.free.speech.trial/index.html?hpt=Sbin]
And here is the official transcript in today's arguments of Snyder vs. Phelps
http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-751.pdf
BBC News Europe. Dutch anti-Islam MP Geert Wilders goes on Trial. October 4, 2010. http://www.bbc.co.uk/news/world-europe-11464025 (accessed October 6, 2010).
Castle, Stephen. "Belgium Moves to Ban Burqas Worn in Public." New York Times, March 31, 2010: http://www.nytimes.com/2010/04/01/world/europe/01iht-brussels.html.
US Supreme Court. 09-751 Synder v. Phelps. March 8, 2010. http://www.supremecourt.gov/qp/09-00751qp.pdf (accessed October 2010, 2010).
—. Hustler Magazine, Inc. v. Falwell. February 24, 1988. http://scholar.google.com/scholar_case?case=5069891851949874011&hl=en&as_sdt=2&as_vis=1&oi=scholarr (accessed October 6, 2010).
Westboro Baptist Church. Westboro Baptist Church Picket Schedule. October 1, 2010. http://www.godhatesfags.com/schedule.html (accessed October 6, 2010).
Thanks for another thought-provoking post, Kristina. The one point you don't make here, but which I hope does get considered in Snyder V. Phelps is what the definition of "peaceful assembly" is. There are bound to be appeals because it does have so many far-reaching implications (having to separate three aspects of First Amendment rights and possibly definitely makes for a complicated case to go along with controversial.)
ReplyDeleteJust posted the link to the transcript from today's arguments. You can see exactly what the justices felt were the points to be considered crucial.
ReplyDeletehttp://www.supremecourt.gov/oral_arguments/argument_transcripts/09-751.pdf
Thanks, Kristina, again. I never would have guessed it would go this direction, but I sure learned a lot from reading this.
ReplyDeleteAlthough the protests by Phelps group are reprehensible, I think it will be difficult for the Supreme Court to find them to be unconstitutional. The protestors followed the rules about distance from the ceremony, etc. I've been puzzled, however, as to how this small church is able to financially fund the many trips to funerals as well as their legal costs.
ReplyDeleteThe case in the Netherlands seems to have some similarities to the recent case in the U.S. involving the threats to burn the Koran. In both of these cases, allowing the free speech to occur unleashes the potential for worldwide repercussions as videos associated with the “free speech” quickly travel the world via the internet. These cases, as opposed to the Snyder vs Phelps case, pose a much greater dilemma for us. If we clamp down on the free speech, we start to lose one of the most important aspects of our system; if we don't others who don't understand our freedoms are likely to think that most Dutch or Americans support the actions of those who behave irresponsibly, immorally or in a totally objectionable manner.
Wilders is correct when he says that free speech is on trial. When any government tries to shut someone up, it does not give as a reason, "we don't like what your are saying," but always gives a more reasonable justification such as "threat to national security" or "inciting civil unrest". Here, Wilders is being told he can't criticize the Koran because of how people might react. When other people's reaction to our speech is allowed to justify restricting our speech, then we have no freedom of speech.
ReplyDeleteI love that both Vera and Rick touched on the subjectiveness. I'm interested to hear what the outcome of the cases are. Vera, you touch on videos quickly traveling the world, which is a good point. However, here in the U.S. that is part of what some people object to about the current administration. The reality that, as we saw in the days leading up to the Inauguration, sound bytes can be used to form a case by taking things out of context is pretty dangerous, but that is why the spread of globalism to show that not all or most Americans or Dutch or anyone else with the right to freedom of speech necessarily believes any one given way, contrary to high-profile court cases.
ReplyDeleteRick, I think you bring up a valid point, as well. Banning someone from criticizing something in the interest of how people MIGHT react is a dangerous thing. I do think you might be overgeneralizing just a little bit, as there are times when taking actions to restrict speech can be warranted. The case I would think of would be the one where the scheduled burning of Korans on 9/11 became not only high profile, but a case of public policy. To my knowledge, no one specifically told them that they couldn't do it, but they were asked not to to avoid violence and repercussions. We have never had free speech in America as you are describing, as there is the security aspect intrinsic in the Constitution: you can't cry out "fire" in a crowded theater because it becomes a matter of public safety.
When you start discussing religious texts, you get into some highly charged ground. Governments are certainly fallible, but that is why the justice systems exist to interpret where we hit the shades of gray. Overuse of terms such as "threat to national security" or "inciting civil unrest" certainly does dilute both their meanings and effectiveness, but there are times when they are necessary. Incidentally, before we discuss the issue of how to address whether or not people can burn Korans, do we have a conclusive answer on burning American flags? Because there is another hot bed of controversy...
Kristin - Fascinating blog. I'm glad you're doing this. One philosophical point I'd like to make on the original post.
ReplyDelete“Does the First Amendment's freedom of speech tenet trump the First Amendment's freedom of religion and peaceful assembly?”
- I don't think there's a Constitutional conflict here. The purpose of the Constitution was to define the powers of the Federal government, with eventual extension to the state governments (via 14th Amendment and Gitlow v New York). I don't believe there's a guarantee of any positive right to peaceful assembly, only freedom from government interference with that assembly. However evil the Phelps crowd's actions may be, any legal argument against them must be subject to the strictest of scrutiny.
As for the Koran-burning, it's certainly true that 1st Amendment protections are not absolute. In fact, I have heard some voices on progressive radio (sorry, don't recall specific names) invoking the "shouting fire" argument in this case. There are a host of problems with that approach, but since you ask that we first address the flag issue - it was my understanding that a constitutional amendment was required to prohibit this. A quick search turned up a few cases in 1989 (Texas v. Johnson and U.S. v. Eichman) where 5-4 votes affirmed flag-burning rights.
I was glad to see Paul cite Texas v. Johnson. Yes, it would require a constitutional amendment to permit the government to ban the burning of the U. S. flag. That is because the Supreme Court has ruled that burning a flag is speech and is therefore protected by the 1st Amendment.
ReplyDeleteRest assured, burning the U. S. flag is likely to incite violence, but the U. S. Supreme Court rejected that as a basis for interfering with speech. So why would a Koran be deserving of more protection that the U. S. flag?
Kristin, for this reason I disagree with your contention that there is a "security aspect intrinsic in the Constitution." Take a look at Forsyth County v. Nationalist Movement, in which the Supreme Court invalidated a county rule that allowed the county to condition a demonstration permit on the organizers paying the county in advance for security. The Court stated:
“The costs to which petitioner refers are those associated with the public’s reaction to the speech. Listeners’ reaction to speech is not a content neutral basis for regulation. Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”