Defense of free speech includes defense of seriously unsavory characters

February 13, 2012

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.

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“…freedom of speech is a principle, not a litigation tactic.”

^^^ That is the deal, in a nutshell.

Willie;I deleted your comment, had you replied to my comment using the reply box under my comment rather than the comment box to the article, then I would not have added you to the moderator queue ! again review the guidelines.

EVERYONE; the comment text box at the bottom of the page is to respond to the article . The reply button under each comment is for most anything you have to say in response to other readers comments. Capiche?

It is part of my job to see that the top comment under the article is related to the topic of the article, the replies to comments do not receive the same scrutiny that comments to the article do.

What is this, 8th grade history class?

Even an 8th grader would read and understand what section of the website they were posting on before making insolent demands upon a GUEST OPINION author.

quick review of posting history ,,,,moderator queue for you.

The pols that created and signed that law cause death and destruction with their own lies vs the odd kook claiming a shiny medal. Tell me again who should be prosecuted.

I forget who said it ( not me ), but the answer to hate speech is MORE SPEECH, not censorship or suppression.

Not to engage in shouting matches with bigots, racists, and other assorted extremists …but to reveal with the disinfecting sunlight of TRUTH , so that all may see.

I find the headline a bit misleading …as “Defense of free speech” does not automatically interpret into “Defense of seriously unsavory characters”. People can still be arrested and prosecuted for libel, slander, conspiracy, incite to riot ( or other illegal activities ), acccesories before and after the fact.

As noted: one cannot shout “FIRE!” in a crowded theater, UNLESS there actually IS a fire.

Correction: One SHOULDN’T shout “FIRE!” in a crowded movie theater, because they may be subject to being banned from the theater or getting a beating or a number of other punishments society is likely to subject such an individual too. One certainly CAN shout it however, and any law which specifically forbids this is likely unnecessary as well as a violation of the first amendment, which is quite likely one of the clearest, most plainly written laws I have ever read; and yet somehow it still presents an issue to lawmakers. The idea of an ABSOLUTE principle evades most people, and that is why there are so many laws in some form or another against different forms of speech. An absolute principle assumes that any consequences as a result of following that principle are far exceeded by the benefits of following it, period.

This might be a bit shocking to some, but I don’t consider the Phelps to be particularly hateful. I find them to be quite logical and reasonable people with some very specific goals in mind. If you listen to Phelps’ arguments in Snyder vs. Phelps, you can’t help but realize that the truly offensive people were the ones making a patriotic spectacle of the funeral of the soldier. Before founding Westboro Baptist church, Fred Phelps was actually a famous civil rights attorney who defended poor blacks. When he was disbarred after only trying a little too hard to push important principles, he created his little sideshow, which I believe was actually intended to make a mockery of fundamentalist Christians.

You’re right, I’m pretty shocked. I’ve never met anyone that agreed with that nutty family. Who are the ones in your mind that are making the truly offensive patriotic spectacle? How can yelling such hateful things towards a grieving family during a funeral as they do not be offensive? Those poor families, I think it’s horrible and very hateful. That goes for their hateful statements towards gays as well. They have the right to do this just as the KKK has the right to rally but I still say that it’s morally wrong and horrible.

But they weren’t even close the funeral, not anywhere near where anyone could hear them.. That’s just how the media spins it. The ones making the truly offensive patriotic spectacle were the military and the family, instead of celebrating his death they appeared to be celebrating his sacrifice to help kill people in a place we do not belong. They took out ads in the newspaper celebrating it and they of course gave the soldier the full song and dance treatment at the funeral. For people who are offended by the hundreds of thousands of people we have been murdering, based on lies, it’s pretty offensive.

If you do some research on Fred Phelps, he doesn’t appear as crazy as people would have you think. I have a hard time believing that a guy who sued Reagan over violating the separation of church and state because of something he signed with the vatican, and who represented poor blacks in civil rights cases, TRULY goes over to the other side and becomes a fundamentalist nut. To me it is more likely that he has been putting on the greatest piece of performance art ever. Just think of how many ill feelings he has engendered among people towards extreme fundamentalists.

I’ve read all I need to know about Phelps. His family has done this at nemours funerals and I believe that they were within ear shot at several funerals.

I am against most if not all of the wars that this country has gotten into but a human life is a human life. The families of these dead soldiers should be respected. Phelps can protest the war all he wants but let these families have their day of morning. Regardless of my political opinions these guys were fighting for this country. even if I don’t agree with them, they deserve respect.

As I said, you’re talking about one case, they’ve protested at more than on funeral.

For the amount of B.S. we are subjected to on a daily basis in almost every walk of life, I consider his to be no more annoying or offensive that 50% of it, at least, and a heck of a lot more entertaining. I obviously support nothing in any of their diatribe, but that’s nothing unique, and I don’t think they really believe it either.

I’ve seen that before. That interviewer has more patience than I do. They’re clearly brainwashed by the cult leader. I feel so bad for the kids.

That families idea of being Godly is scary.

Jack L,

Being Godly, as intended, is scary at times, but, so what? Do you know more than the Christian God? NO YOU DO NOT!

There is a lot of “scary” stuff in the bible if you actually READ and FOLLOW it! But, most pseudo-christians here at CCN are spoon fed their bibles on Sunday mornings, therefore, they are the ones that will be damned, praise!

Personally I feel that people need a reminder now and then. I hear a lot of people that don’t seem to understand this concept.

Yeah I agree Typoqueen. The vast majority of people don’t actually process on a higher than 8th grade level anyway lol

FAC is like the ACLU. We might not like some of the issues that they take on but they take on principles that need to be preserved. These principles are difficult for a certain segment of the population to understand just like the principle of innocent until proven guilty.

I wonder who the local political serial liar is, that story about the medals sounds familiar but I can’t for the life of me remember who he’s talking about. I hope someone can refresh my memory.

I would add that it is the first amendment from which all others are based… without it …we don’t have much.

Nice article.