Justice Samuel Alito takes a narrower view of free speech when that speech can cause harm

Posted on 03 Mar 2011 at 12:48pm

The lone dissenter to Thursday’s Westboro Baptist Church decision by the Supreme Court was Justice Samuel Alito. While I appreciate the majority’s protection of free speech rights, I am finding myself agreeing with Alito on this and another free speech ruling — and disagreeing with major news organizations that filed a brief supporting Westboro’s free speech rights.

Photo from a July 2010 Phelps protest in Dallas

In yesterday’s ruling, the court found, in an 8-1 decision, that Westboro Baptist Church has the right to protest military funerals, no matter how distasteful that is to the majority of Americans — and threw out a multimillion-dollar award against the church.

Last year, in another 8-1 decision related to free speech, Alito disagreed with the majority and said that so-called “crush” videos that depicted the killing of puppies were not protected. While the majority said that the behavior was prohibited by animal cruelty laws, Alito compared these videos to child porn, another form of non-protected speech.

In his dissent in the Westboro case, Alito said when the intent of speech is to hurt another individual, especially when that person is vulnerable on the day of a child’s funeral, that speech crosses a line.

I have been the target of a Phelps protest when the group came to Dallas to picket my synagogue last year.

We certainly were not in a vulnerable position. We did not feel threatened in any way by the vile crap coming out of the mouths of the Phelps women (and that is the only way I can describe their speech). We were in no way hurt by their words. In fact we used the occasion to raise money and did everything we could to make them look like the bigoted fools they are. And we framed a picture of one of their signs that read “Your rabbi is a whore” for our rabbi.

Was this insulting? Sure. Did we feel threatened? Vulnerable? Attacked? No. We were in a position to laugh at the Phelps clan’s stupidity.

Justice Alito was in no way addressing that sort of demonstration by the group.

That same day, the Kansas-based bigots picketed the Dallas Holocaust Museum, and the staff there did feel threatened and assaulted. However, with police protection and hundreds of friends standing by them, they were not in danger — and that speech should also not be blocked. And again, they turned a simply bad situation into larger-than-usual museum attendance that afternoon.

Again, Justice Alito was not suggesting limiting that sort of speech by the group.

He was addressing a very special situation. He believes that the father of the soldier killed in Iraq was singled out for attack at a moment when he was particularly vulnerable. A personal attack during the funeral of a close relative is a very special situation that merits some degree of protection. This is one particular instance where we, as a society, need to tell a few people to shut the hell up for a few minutes. Spew your hatred later or in a different forum.

And this ruling is particularly relevant to the LGBT community in Texas this week. In Austin, an anti-bullying bill was debated in committee on Tuesday.

Alito’s dissent certainly supports stopping verbal attacks against an at-risk child or teen, but I think the majority opinion would allow it. After all, the bully has a right to free speech and stopping the bully would infringe on his rights.

I see no difference between the child bullied in school and the father being bullied by the Phelps gang at his son’s funeral. The court majority claims that the attack was public discourse — despite signs that read “Your son …” Bullies could claim public discourse in their right to disapprove of homosexuality, even if the result is gay kids, or those perceived as gay, killing themselves.

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