Justice Alito and Eight Dissenters: The Court Backs Into Relativism

Our friends at the Wall Street Journal have just celebrated the decision of the Supreme Court this past week for vindicating “Free speech for Jerks”: The Rev. Fred Phelps and his merry band have drawn the attention of the media as they have gone about staging demonstrations at funerals, and using those occasions as platforms for denouncing, in raw terms, homosexuals, the Catholic Church, the military, and American interventions abroad.

In the case at hand, Snyder v. Phelps they held a demonstration timed to the funeral of Marine Lance Corporal Matthew Snyder, who had died in Iraq. With their usual finesse, or their usual unfailing sense of what will draw the coverage of the media, they carried signs saying, “God Hates the US/Thank God for 9/11,” “Thank God for Dead Soldiers,” “God Hates Fags,” “Priests Rape Boys,” and “Pope in Hell.” The demonstrations were not held near the church where the funeral had taken place.

But Albert Snyder, the father of the young Marine, saw the coverage of the demonstration on television; indeed it was quite hard for him to avert his eyes from it. And that spectacle, he testified, has haunted his nights and days ever since.

The Supreme Court, voting to protect Phelps, did not deny Snyder’s claim that he had suffered “wounds that are truly severe and incapable of healing themselves.” In an earlier day, the local police had ordinances at hand to deal with people who disturbed the peace by haranguing people with provocative, assaulting language. Those ordinances would say, for example that “No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor . . . deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.”

But for the past forty years the courts have made those ordinances virtually impossible to enforce, and that explains, more than anything else, why Albert Snyder had to seek redress against this hateful assault by filing a suit for the personal hurt he had sustained.

The Court found it awkward, to say the least, that a personal suit for damages could be used to punish speech that may be directed to an interest of public controversy. But forty years ago, those concerns did not preclude actions for defamation, including the defamation of racial groups, which did not name any particular person as a target.

The Court vindicated, if that is the word, the freedom of Rev. Phelps to engage in these coarse verbal attacks, and the editors of the Wall Street Journal , finding nothing to praise in Phelps, found some consolation in the fact that Phelps had brought Left and Right together”Antonin Scalia and Sonia Sotomayor, Clarence Thomas and Elena Kagan”to defend the freedom of speech under the First Amendment. But that is not the most notable landmark to be noticed here.

Far more telling for our jurisprudence is that the case marked the full drift of conservatives on the Court to settle in with the revolution begun nearly forty years ago, with Cohen v. California , to install moral relativism as the anchoring premise in the laws governing speech, and to overturn dramatically the ethic governing speech and civility in public places. It was in the Cohen case that Justice John Harlan wrote the line that would form the signature tune for the judges from that day forward: “One man’s vulgarity, another’s lyric.” Harlan would receive vast credit for a novel breakthrough in the law, for discovering the doctrines of “logical positivism” long after they had been discredited in the schools of philosophy: Moral words, casting praise and blame, pronouncing on the things that were right or wrong, just or unjust, had no cognitive content or objective meaning. They were essentially emotive; they expressed passions, which could not be judged true or false.

Cohen, visiting the courthouse in Los Angeles, had worn a jacket with the sign, “F___ the Draft.” Affecting now a rare innocence, Harlan asked, “How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. ”

But then the punch line: “Yet no readily ascertainable general principle exists for stopping short of that result” once one presumes to judge the words that may stand in our language as coarse, obscene, assaulting. Through the fog of language, however, Harlan was able to tell that Cohen’s speech was protected by the Constitution as “political speech.”

Cohen, he said, was obviously asserting a position on the “inutility or immorality of the draft.” But if speech were really so subjective, if there were no principled ground for distinguishing the obscene and assaulting from the refined and approving, how did he know that Cohen was taking a position? Perhaps “F ___ the Draft” meant “make love to the wind.” Harlan could tell that the speech was political because, as anyone familiar with ordinary language would have known at once, Cohen was using an expression that had to be understood as condemning the draft. He was using a word stamped in function and meaning as a moral term, a term for condemning or commending, attacking or defending.

With that opinion Harlan overturned a traditional teaching in the law that was not only anchored in a sound linguistics, but part of a larger public ethic. The components in that understanding were contained in the classic case of Chaplinsky v. New Hampshire in1942, and they might be compressed in this way:

— An assault in the law has not required physical touching or a material harm. One can shoot at a person and deliberately miss him, or hold an unloaded gun to his head and pull the trigger. In the law, those actions would be “assaults.” In this understanding, verbal assaults, extortionate and threatening letters, were every bit as much real assaults. A burning cross outside the home of a black family could stir in them genuine terror.

— It was not simply that certain words were “fighting words” that provoked others to fight. As Justice Frank Murphy said in explaining the point, these were words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” [Italics added.] The black family seeing a burning cross planted outside their home were not likely to assault the thugs assembled outside. But people of ordinary wit could understand the difference between a burning shoe box and a burning cross. And one could understand why something wrong had taken place even if the cross provoked no fight, no violence, from the family inside the house.

— Ordinary language was the key: Certain words were simply established in ordinary usage as terms of assault, and for them to function in that way, they had to be instantly understood as terms of assault.

— To bar the use of these words involved no serious restriction of the freedom to engage in the most vigorous, even searing criticism on matters of public policy. As Murphy observed, this kind of language was so gross that it was removed from analytic prose or even from the most ordinary language of argument. “[S]uch utterances,” he wrote, “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” And so Mr. Rosenfeld, at the meeting of a local school board in New Jersey, had one adjective to convey his complaints: “motherf . . . .g.” He was asked simply to stop using that language. And yet, simply asking him to refrain from that word, to say things another way, did not impose even the least restraint on his freedom to make the most scathing, substantive argument against the local board of education.

Chief Justice Roberts thought he was saying something to exculpate Phelps, or palliate his offense, by noting that Phelps was addressing matters of genuine public controversy. But none of that had any bearing on the doctrine in Chaplinsky . One of Roberts’s predecessors, Chief Justice Warren Burger, once imagined a case in which a couple could be locked in sexual intercourse on the steps of City Hall. The context, with a public building, could clearly impart a political meaning to the act: They could be acting out what they thought the mayor was doing to the city. And yet to bar them from acting out that scene was not to bar them from making the most serious argument against the Koch or Dinkins administrations.

Justice Samuel Alito, in his dissenting opinion, caught precisely the lines of the old teaching when he remarked that “the First Amendment ensures that [Phelps and his band] have almost limitless opportunities to express their views.”

They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.”

Barring them from harassing the Snyder family at the time of the funeral would hardly diminish their freedom to make even their harsh case in public. The fact that the “speech” in question here had a public import did not insulate the gross assault upon the Snyders from the protections that the law usually affords the victims. “I fail to see,” said Alito, “why actionable speech should be immunized simply because it is interspersed with speech that is protected.” It was clear, rather, that “the First Amendment does not entirely preclude liability for the intentional infliction of emotional distress [IIED] by means of speech.” And the fact that the assaulting speech took place, as the majority noted, on a “public street . . . should not be enough to preclude . . . liability [for this intentional inflict of emotional distress].”

Nor was this a case in which the wounding of the family was an incidental effect of speech directed to a public dispute. As Alito noted, the targeting of the family has been a part of the operating procedure of Phelps and the key to his success: “This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media [are] irresistibly drawn to the sight of persons who are visibly in grief.”

In the weighing of these claims, it is hard to see what public purpose would elevate the claims of the assailant against those of the victims. “Allowing the family members to have a few hours of peace without harassment does not undermine public debate.” The sum of the matter, as Alito had it, is that “the Court now holds that the First Amendment protected [Phelps’s] right to brutalize Mr. Snyder.”

In the world as it was when the Court was governed by the old Chaplinsky, the public ethic could be stated in this way: When people ventured into public places, they could be asked to restrain themselves out of a respect for the sensibilities of others they are likely to meet in these public settings.

But Cohen v. California , in bringing a new relativism into the law, inverted the traditional teaching: The assailants were now the presumptive bearers of a constitutional right to express themselves, and people who were offended by them had an obligation now to avert their eyes, cultivate tougher skin”or simply shun public places. People would simply have to stop going to restaurants in certain parts of Washington and other cities if they no longer wished to move through a chain of hawkers emitting personal insults and putting on gross displays.

The urbanists for years have been making the case for public transportation, rather than private cars, and creating the conditions for strangers to encounter one another in the vibrancy of the city. But at the same time, the courts have been removing the framework of civility and moral restraint that made that kind of urban life possible. It was a telling line, then, in the Snyder case, when Chief Justice Roberts quoted with approval a passage from the Erznoznik case (1975), obviously drawing on the teaching of Cohen : “the burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities simply by averting [his] eyes.”

No that has not been normally the case; it has been the case only since Cohen changed the reigning codes on civility in public speech”and since the conservative judges settled in firmly, case by case, with this new order of things. One signal marker surely had to be the opinion of Justice Scalia in the case of R.A.V v. St. Paul , striking down an ordinance that banned, among other things, the burning of crosses. The law had barred, in places public or private, the deploying of

a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

Scalia thought, along with his colleagues, that the law was overly broad. But the more decisive point for him was that the law depended on a discrimination based on the “content” of the speech. It was, he said, “content based and therefore facially invalid under the First Amendment.” So far had the teaching in the Cohen case settled in: even Scalia was willing to work with the presumption that any attempt to judge the content of speech was on its face invalid. He was willing, that is, to work within the scheme that his liberal colleagues, over twenty years, had now confirmed.

But when the case involved the burning of crosses, the liberal judges now recoiled from their own handiwork. Justices Stevens and White were shocked”shocked”that one couldn’t make discriminations based on the content of speech and recognize the meaning of a burning cross. But at the same time, they were serenely oblivious to the fact that Scalia was simply confirming what White and the liberal judges had put in place.

Still, they overcame their shock and outrage by joining Scalia in striking down the statute. They too thought it was overly broad: The ordinance would restrain or punish speech when it merely “arouse[d] anger, alarm and resentment.” But what also seemed to escape their notice was that this was the only ground of explanation left to the legislators drafting laws when they could no longer ban those words or gestures “which themselves inflict injury.”

That was the only way they could explain now what they meant when they sought to ban speech that constituted an assault. That was the only thing the Court had left them, and yet a law framed in that way would readily be struck down as “overbroad.” The whole thing resembled a Monty Python sketch: “Come at me with a banana””and the student, learning martial arts, would get shot. “Come at me now with a pomegranate.” The liberal justices were fiercely sure that they could recognize burning crosses as assaults, but they would just as surely strike down any combination of words in a law that sought to accomplish that end.

Scalia thought that this legislation, barring the burning of crosses and hateful things based on gender, was a partisan move designed to protect groups that were “favored.” One suspects that the same legislators would not as readily protect those people who have been reserved about the homosexual life, and who are routinely labeled with a snarl as “homophobes.”

And yet, the law that Scalia has sought to shape with such a large nature has not in fact protected everyone. It has been a matter of deep concern to him that these sweeping rules protecting the most vile speech have conspicuously failed to cover with its protections one group: pro-life demonstrators. For them the rules of the Cohen case are suspended. When pro-life demonstrators are outside clinics, the people who are offended by them are not encouraged, in the teaching of Cohen , to avert their eyes or avoid these public places. The very presence of the pro-lifers is taken as the sting of reproach, too much to bear for women entering the clinics.

The Rev. Phelps and his group, spouting the most hateful sentiments, could not be moved from their spot on the public street. But the pro-lifers might be compelled to leave the scene even if they are quietly praying. Or even if they are merely trying to open a conversation with a young woman on her way to having an abortion. For them, all of the rules are turned upside down.

There will be a certain world-weary support for the decision of the Supreme Court in the Matthew Snyder case among conservatives who fear that, if the Court did not take this position, people like Mark Steyn will ever be drawn into courts, prosecuted for hate crimes because they have been critical in print of the claims for gay rights or same-sex marriage. But the decision of the Court in Snyder v. Phelps will protect the conservatives no more than it will protect the pro-lifers. The conservatives curiously find their solution in the mirage of barring all restraints on speech altogether. That will never happen.

The real cure was more readily available, and more clearly taught, in the law when Justice Murphy expressed the common sense of things in Chaplinsky : The remedy is to be found simply by getting clear again the distinction between coarse words of assault and substantive argument. There is a difference between screaming “God hates faggots” and articles unfolding the logic and making the case against same-sex marriage.

When the Court teaches at the top of the State that we cannot make those distinctions”when it says, with Justice Harlan, that there is no principled ground for making them”what else are we to expect when that lesson makes its way out into the land?

Hadley Arkes, a long-time member of First Things ’ editorial and advisory board, is the Ney Professor of Jurisprudence at Amherst College and author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law (Cambridge).