It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [31]
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Chapter 3
Names Will Never Hurt Me:
The Freedom of Speech
Approximately 1,160 miles separate Topeka, Kansas, from Westminster, Maryland. Fred Phelps, pastor of the Westboro Baptist Church in Topeka, Kansas, feels it is his duty to travel great distances to spread his congregation’s religious message: “That God’s promise of love and heaven for those who obey him in this life is counterbalanced by God’s wrath and hell for those who do not obey him.” In 2006, this duty brought him to Westminster, Maryland, to attend a funeral service at St. John’s Roman Catholic Church.
The funeral was in honor of Lance Corporal Matthew Snyder, a U.S. Marine who died while stationed in Iraq. Funerals such as Corporal Snyder’s are prime opportunities for Phelps to spread his religious message, because he believes God is punishing the United States for “the sin of homosexuality” through a multitude of events, including soldiers’ deaths likes Snyder’s. However, Phelps’s protests do not end with him or his followers attending funeral services. They attend the funeral services while shouting at grieving family members and carrying signs with slogans such as, “Thank God for Dead Soldiers,” “Priests Rape Boys,” and “God Blew Up the Troops.”
Is this form of speech the exercise of a natural right granted to us by virtue of being human? Is there a fundamental yearning to communicate ideas to others, even if those ideas are patently offensive and outrageous? More importantly, should it be? After all, legal Positivists might criticize any scheme of rights, such as the Natural Law, which protects the protesting activities of Fred Phelps. As we shall see, however, freedom of speech is a nearly absolute right which can only be curtailed in the direst of situations, namely, where speech will somehow infringe upon other natural rights, as might be the case with a criminal mastermind instructing his henchmen to kill others. As unpopular as Fred Phelps’s ideas might be, we cannot, and must not, conflate questions of unpopularity and offensiveness with natural rights. If we do, then we set a legal precedent for the suppression of unpopular groups, and the death of free thinking. As Noam Chomsky stated, “If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.”
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“They Chose Liberty”
The egregious and loathsome speech of Fred Phelps is a prime example of the speech the First Amendment protects. In drafting the First Amendment, the Founding Fathers intended to protect not only agreeable or non-provocative speech, but also speech against the status quo. Indeed, the American Revolutionary movement was itself an uprising against then existing power structures, making its literature the object of government contempt. Justice William O. Douglas wrote, “The framers of the Constitution knew human nature as well as we do. They too had lived in dangerous days; they too knew the suffocating influence of orthodoxy and standardized thought. They weighed the compulsions for restrained speech and thought against the abuses of liberty. They chose liberty.”1
By choosing liberty, the Founders sought to protect our most basic yearnings: Here, the yearning to think as we wish, and to communicate thoughts to others without the “chilling” effects of government regulation. To avoid repeating history and suffering the later abuses of a tyrannical government, the Founders, in enacting the First Amendment, secured our right to dissent, to speak out against those in power, and to participate