Defense of free speech includes defense of seriously unsavory characters

February 13, 2012

OPINION By PETER SCHEER

Why is it that the First Amendment Coalition, like other organizations that defend freedom of speech, is so often aligned in support of seriously unsavory characters?

Just last week FAC filed an amicus brief in the US Supreme Court in support of a local politician and serial liar (no redundancy intended) who claimed to have served in the Marines (a lie) and to have been awarded the nation’s highest military honor for heroism in combat (another lie). He has been prosecuted under the federal “Stolen Valor Act” for the speech-crime of claiming falsely to have received the Congressional Medal of Honor. (United States v. Alvarez).

In still other recent Supreme Court appeals, FAC has filed First Amendment amicus briefs in support of:

–persons who make and sell videos of the torturing of small animals (United States v. Stevens);

–hate-filled homophobes who picket near funerals for US servicemen, carrying signs saying “Thank God for Dead Soldiers” (Snyder v. Phelps); and

–companies that sell–to children!—graphically-violent video games featuring, in the words of Supreme Court Justice Samuel Alito, “victims who are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces” (Brown v. Entertainment Merchants Association).

Of course, FAC also assists many perfectly normal folks–even journalists!–whom you wouldn’t hesitate to hire as babysitters for your kids. Nonetheless, advocacy in support of the free speech rights of all manner of extremists and outcasts is central to our mission.

FAC gets involved in these cases because freedom of speech is a principle, not a litigation tactic. If you invoke freedom of speech only to protect ideas and viewpoints with which you agree, you can’t claim  to adhere to the First Amendment as a matter of principle. Selectivity in the application of free speech rights–advocating protection of some speakers, and not others, based on their views–is fundamentally at odds with the idea of freedom of speech.

In a democracy, the need for free speech protection is greatest for ideas and speakers that are opposed by the political majority.  The more unpopular, the greater the need. Although democracy depends on First Amendment freedoms, the First Amendment also serves as a vital check on democracy’s excesses. These include the majority’s impulse to validate its own views by invalidating–through censorship–views that it fears or dislikes.

The temptation is always great to carve out exceptions to freedom of speech for expression that is so hateful and offensive as to have zero social value. After all, so-called “hate speech” is barred to varying degrees in most liberal democracies (including, for example,  France, Canada, Germany, Great Britain and Australia). The United States is the notable exception–and we must continue to be.

Hate speech needs constitutional protection not because bigoted rants, lies and snuff videos deserve an audience–they don’t–but because speech having no social value can’t be proscribed without also suppressing speech that does have social value. Even more than we dislike hate speech we fear a government that has the power to decide what speech will be heard and what speech will be silenced.

Constitutional safeguards for speech that really matters–political speech, informed criticism of official policies, artistic expression–are at their strongest when protection is also intact for speech that makes you want to cover your ears.

The time to really worry about personal freedom in America is when you can no longer hear the voices you hate.

Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition.