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Murchison on free speech

William Muchison

by William Murchison

It fell to Justice Samuel Alito the other day to remind Americans how far their culture of liberation has veered from common sense and appreciation of the small decencies that undergird civilization.

On a question of “free speech” — at its center a claimed right to begrime with taunts and insults the funeral of a U. S. Marine — the four members of the U. S. Supreme Court’s liberal-permissivist bloc weren’t likely to find against the jeer leaders. It was the conservative bloc whose behavior startled. Chief Justice John Roberts, Justice Antonin Scalia, and Justice Clarence Thomas went along with the permissivists, in the name of “robust, uninhibited, and wide-open” debate. As if the honored word “debate” applied to placards exhorting onlookers to “Thank God for Dead Soldiers.”

Against his eight colleagues, Sam Alito stood in lonely, honorable dissent. “Our profound national commitment to free and open debate,” he wrote, “is not a license for the vicious verbal assault that occurred in this case.” Alito saw no free speech deprivation in the judgment a district court had levied against the traveling freak show known as Westboro Baptist Church, in Kansas: a gang keener on disrupting military funerals than on preaching the redemptive love of Jesus.

The picketers could have picketed almost anywhere in America, said Alito. Why at the church where the funeral of Marine Lance Cpl. Matthew Snyder was being held? From the claim of free speech rights there was no logical pathway to the intentional infliction of “severe emotional injury on private persons at a time of intense emotional sensitivity.’”

Among the judicial precedents Alito noted was a 1942 case in which the high court called attention to “the social interest in order and morality.” That was of course back when American culture accorded order and morality a higher seat in national proceedings than was due trash-talking and narcissistic chest-thumping.
The debasement of traditional norms of respect and civility, from the 1960s forward, accompanied cultural grants of latitude to do anything that resembled self-expression: burn a U.S. flag, swear on the air, publish pornography, insult or howl down a speaker.

Daniel Webster crying “Liberty and Union, now and forever,” the Westboro wackos proclaiming, at military funerals, God’s hatred of “fags” – both are the same, it seems. Except they aren’t. Not according to right reason they aren’t.

I trust, after 47 years in the media, teaching and talking and writing, I needn’t protest my devotion to “freedom of speech, or of the press,” as the Founding Fathers referred to it. I am bound to add that free speech obtained its dignity and cultural warrant through the importance that earlier generations attributed to that “robust” debate praised by the court’s 8-1 majority. That “God Hates Dead Soldiers” should be considered an idea on the same plane as “endowed by their Creator with certain unalienable rights” is further evidence that modern society barely knows up from down.

When I taught journalism at a major university, I thrust Milton’s “Areopagitica” in my students’ faces. Here! Look! This is what free speech is about – the quest for Truth! “Give me the liberty to know, to utter, and to argue freely according to conscience above all liberties,” Milton had written. Yes! Yes!

Accordingly, we bind ourselves to put up with a fair amount of nonsense – but not all nonsense, because no morally healthy society accords unlimited living space to the ugly, the twisted, the debased. Perhaps our own society just doesn’t know anymore, due in part to Supreme Court tutelage, what real debasement looks like. We might get up a good debate on that topic, assuming the Westboro wackos and their pious defenders could be kept at bay.

Books on the topics mentioned in this essay are available from The Imaginative Conservative Bookstore. Essays by William Murchison may be found here.

William Murchison is completing a biography of the founding father John Dickinson. This originally ran in the Dallas Morning News and is published here with the gracious permission of the author.

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3 replies to this post
  1. I agree with the general point of this post — the need for exercising our 1st Amendment right to free speech with decorum, civility and justice, if not charity. And though I applaud Alito's courage, his reasons for disagreeing with the Court simply don't go far enough. For, lurking behind the Court's 1st Amendment jurisprudence, which he appears to accept, is the question as to whether the Supreme Court should have jurisdiction of 1st Amendment issues at all. Despite the fact that this Amendment and the rest of the Bill of Rights were suppose to protect these rights, granted and enforced by the individual States, from federal encroachment, both the majority and Alito do not question whether, on the most fundamental grounds, the issue falls within the Court's jurisdiction.

    We might have preferred the Supreme Court to rule that the 1st Amendment did not protect Westboro Baptist's protests, but, as conservatives, we need to start being consistent. We are content to have the Supreme Court rule on matters outside its originally intended jurisdiction when it's in our favor, e.g. 2nd Amendment rights, but then complain when it concerns issues we disagree with — Abortion, gay rights/marriage.

    Thus, as with other cases, our response to the Wesboro Baptist case should be disgust and bewilderment not only at the result, but at the fact the Court had anything to do with the case at all.

  2. The problem is that government is force and to have it do violence to people because of what they say – even if offensive – that is not a direct incitement, or doesn't involve slander or similar is the opposite of conservatism.

    What we have lost is shame. On the right, everything shameful must be illegal. On the left, criticizing or attempting to ban shameful things from a personal or organizational sphere must be illegal.

    "Common Sense" would fight them with reason and persuasion and charity. I'm not sure anything else would ultimately be effective.

    Perhaps society is now infantile today, but we don't lock up infants and leave them in infancy and just deal with them brutally when they do something wrong – or even evil.

    We can't even say "Shame, shame on you for doing a shameful act…" to TSA agents doing criminal sexual conduct on children. It is "you should be arrested" if anything at all.

    Part of conservatism realizes men is fallen and will be corrupted by power. So there can be no concessions to increasing power to any man or group thereof.

  3. From The Imaginative Conservative FB page:

    Men are qualified for civil liberty in exact proportion to their disposition to put moral chains upon their own appetites…Society cannot exist unless a controlling power upon will and appetite be placed somewhere, and the less of it there is within, the more there must be without.–Edmund Burke

    There are few "moral chains" on anyone's appetites these days, with perhaps the exception of the chains placed on a hunger for morality.

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