ABC The Drum Unleashed
by David Weisbrot
In 1977, an American neo-nazi group planned a march through the Chicago suburb of Skokie, Illinois, carefully chosen for its large Jewish population, including a sizeable number of Holocaust survivors.
Local authorities tried to impose a huge insurance bond on the organisers to cover the possibility of violence and damage to property, but also with the obvious aim of making it almost impossible for the organisers to comply.
Represented by the American Civil Liberties Union (ACLU), the Nationalist Socialist Party of America appealed all to way to United States Supreme Court, arguing that its rights to freedom of speech and assembly had been violated. The Supreme Court agreed, ruling that the First Amendment to the US Constitution provides a powerful protection for free speech, even—and perhaps especially—where the message in question is unpopular.
Freedom of speech is not protected in all circumstances. Famously, it is not lawful to 'shout fire in a crowded theatre', and sedition, defamation, and obscenity may result in civil or criminal sanctions. In 1942, the Supreme Court created another narrow category of questionable speech that may be regulated, namely 'fighting words', whose very utterance inflicts injury or tends to incite an immediate breach of the peace.
However, the Court has been loath to prohibit speech that falls short of intentionally inciting criminal behaviour. In this instance, the Court held that the proposed use of flags and uniforms featuring the swastika is a symbolic form of free speech entitled to constitutional protection, and did not amount to 'fighting words'.
The involvement of the ACLU in the Skokie case was itself controversial, and the organisation lost considerable political and financial support from within the Jewish community. However, the ACLU maintained that protecting the principle of free speech requires the defence of the expression of unpopular views, lest there be a steady weakening through exceptions and restrictions.
As Justice Felix Frankfurter once observed, "It is a fair summary of history to say that the safeguards of liberty have often been forged in controversies involving not very nice people". In more recent cases, the Court has been similarly reluctant to uphold criminal sanctions for flag-burning, and even cross-burning.
In the current case of Snyder v Phelps, the Supreme Court is considering another highly contentious free speech case, provoked by another cast of objectionable characters. The central issue is whether the pastor and congregants of the Westboro (Kansas) Baptist Church should be liable for the tort of 'intentional infliction of emotional distress' on Albert Snyder, after members of the church picketed the funeral of his son, Marine Corporal Matthew Snyder, who was killed in action in Iraq.
Phelps and his congregation believe that 'God hates America' because of its tolerance of homosexuality, especially in the US military. At Corporal Snyder's funeral, church members carried placards with such contemptible messages as 'You're going to hell', 'Fag troops' and 'Thank God for dead soldiers'. The church's website contained similar messages and stated that Corporal Snyder's parents had 'raised him for the devil'.
A jury awarded Mr Snyder US$11 million, reduced to $5 million by the trial judge. The verdict was overturned on appeal, on the basis that the constitutional protection for freedom of expression about matters of public concern overrides any laws limiting protests at funerals.
The case has received extensive media coverage in the US, and engaged a wide circle of participants. Friends of the Court briefs were filed in support of the Snyder family by lawyers representing 48 States and the District of Columbia, while many civil liberties groups and media organisations filed on behalf of the Westboro Baptist Church.
There are several ways that the Supreme Court could rule. The Court could continue its robust approach to the First Amendment demonstrated in Skokie and other cases, affirming the primacy of free speech over bad taste, hurt feelings and public outrage. Or it could carve out a specific 'funeral exception', as almost all American legislatures have tried to do. Or it might rule narrowly on the facts, finding that Westboro congregants' signs amounted to 'fighting words' rather than constitutionally protected free speech.
Such high profile free speech cases are rare here. In the absence of a Bill of Rights or any other express guarantees in the Australian Constitution, the High Court has crafted an implied protection for 'freedom of communication about government or political matters'.
This jurisprudence extends to what is necessary for the effective operation of representative and responsible government, such as the right of citizens to criticise politicians. Whether it encompasses other forms of political, artistic and literary comment will depend, for the foreseeable future, upon the continued development of implied rights by the senior courts, in the face of criticism from some quarters that this amounts to 'judicial activism'.