What the Westboro Baptist Church people are doing is so repugnant, so outside the bounds of human decency, that many of us hoped the Supreme Court would blow them out of the water.
Surely, we thought, their vicious hate speech and bizarre antics at military funerals⎯mocking the idea of military service to one’s nation and subjecting the families of the dead to further misery⎯constitute an abuse of the First Amendment.
Navigating their way through this fog of anger, however, eight justices of the Court realized that the beauty of the First Amendment lies in the fact that it can’t be abused. Other than crying “Fire!” in a crowded theater or inciting to riot, just about anything goes.
They made a compelling argument, too, as to why Westboro’s right to spew its ugliness is just as precious as Martin Luther King’s right to give his “Dream” speech on the National Mall: The church members are addressing an issue in the national discourse, and they are doing it in a place that enjoys a particularly sacred status in the Constitution…the public street.
It is at these very moments, when almost one hundred percent of us hate what we hear, that the reaffirmation of freedom of speech is so important. The ACLU realized this when it fought for the American Nazi Party’s right to march in Skokie, IL⎯and lost much of its financial support in the process. The content-blind principle must be applied to all situations at all times, or else human nature’s natural impulse to cherry-pick issues becomes irresistible.
Justice Alito ought to be respected for issuing his dissenting opinion, but he was allowing his heart to get in the way of his head. It’s an understandable slip, particularly in this extreme case. Burning the American flag as an act of protest is just as offensive to our sensibilities, and that is exactly why flag burning should not be made an exception to the First Amendment.
We can love the First Amendment or hate it, depending on the circumstances, but it’s ours. The inherent and inviolate broadness of the protection it provides is one of the many things that continue to make our country the envy of the world.