One of the interesting things about humanity is how easily we’re knocked off the high road. You can know a thing is wrong, know why it’s wrong, and still do it anyway, kinda just ’cause you want to. People are – or often can be – really bad at seeing the bigger picture.
I’m thinking about this because Fred Phelps – civil rights activist … and, oh yeah, the guy who thinks God wants to damn all Americans because there are a couple of gay soldiers here and there – diedthis week, and my aunt linked an opinion piece that her husband published about him in the National Journal back in 2010 (just ahead of the Snyder v Phelps decision) that just happens to be one of the more wrong-headed pieces of political reasoning I’ve read.
You can see what I mean immediately from the opening line:
In the late 1990s, Fred Phelps’ Westboro Baptist Church posted a news release to its site announcing plans to picket the funeral of my father, Dick Snider.
(Possibly this announcement – actually from 2001.)
It isn’t that people always take their eye off the ball when family feeling is involved, but it seems to happen a lot. This is why we typically expect judges to recuse themselves when family members appear in their courtrooms, for example, or why picking a family member for a political appointment is automatically suspect. And in this 6-paragraph (5-and-a-sentence, really) treatment, sure enough, the theoretically irrelevant family annecdote occupies 4 ‘graphs – over two-thirds of the total column inches.
Among the things we learn is that my uncle’s father’s family was run out of a small town in Oklahoma when he was a child – apparently for being Catholic – by the KKK. What this has to do with Phelps, or what this story is even doing in this column, is completely unclear. Phelps, after all, was a civil rights campaigner for much of the 1960s who more than once sued Kansas school districts on the grounds that they were delivering an inferior education to black people. Indeed, the Klan counter-protested Phelps’ own funeral protests on a number of occasions – though for different reasons than opposition to his civil rights activism. Phelps and the Klan didn’t get along, to put it gently, but you won’t read that here. Not to mention the important distinction between burning a cross on someone’s property – which is vandalism, tresspassing and a specific threat of violence, all of which are illegal – and loudly expressing political opinions in public, which is not only NOT illegal but specifically protected as a right.
To the extent there’s a point to this digression, it seems to be to establish some kind of street cred for Dick Snider as having more than once been the target of bigots:
My father said Phelps started targeting him for columns that chided Topeka authorities for allowing the picketers to roam the city in placard-waving packs to harass "accused" homosexuals. A newspaper profile of Dick Snider when he turned 80 put it this way: "As a youngster in Oakwood, Okla., the local chapter of the Ku Klux Klan burned a cross at the Snider family home, forcing one of the few Roman Catholic families in the small town to move elsewhere. Little wonder why Snider maintains little tolerance for fools and bigots."
But it also has the effect of pathologizing Snider’s opposition to Phelps. Perhaps Snider’s run-in with the KKK gave him special insight into the dangers of legal bigotry; then again, perhaps it’s a case of a childhood trauma from a largely unrelated incident getting inappropriately analogized to Phelps and exaggerating Snider’s perception of the supposed "danger."
The punchline is this:
Signs like "Thank God for Dead Soldiers" at funeral services are pure incitement. That’s their point. People who polarize for their own advancement continually raise the dose of vitriol to test our tolerance, to maintain their visibility; from the language and images in culture to the use of "socialist" and "Nazi" in politics. In this atmosphere, it’s the lines we draw that matter — how we respond when hate incites us and even organizes us. A Supreme Court victory for the family of Lance Cpl. Snyder is not the latest beginning of the end for free speech. It may be just what we need to spotlight the marketers of polarization and say "enough."
Now, it’s true that "pure incitement" (to lawless action) isn’t protected speech, but there’s a specific test in place for what counts as "pure incidement," and what Phelps made a habit of doing doesn’t pass. As per Brandenburg v Ohio, (1) the incitement has to be to some kind of lawless (preferably violent) action, (2) the incitement has to be to an imminent action (so, simply saying you’d like to overthrow the government someday doesn’t count), and (3) there has to be some reasonable fear that the action will actually occur. What Phelps did doesn’t meet even one of these standards.
I guess no reasonable person will say that Phelps and his organization are good people making a positive impact on society. Steve’s not wrong that the only point of the signs and protests is to make people angry, and making people angry, per se, doesn’t serve any social good. Which is why it’s important to remember that the protections on speech we have in place are not there for the purpose of promoting social good. The Constitution isn’t written the way it’s written because we’re trying to make the optimal speech environment where everyone only ever expresses constructive opinions and listens politely to everyone else. That would be nice, of course. The world would be a better place for it. But it’s not the kind of thing that government or the law can give us – certainly not directly, and not through restrictions. We have the protections we have partly because we don’t trust ourselves to always make the right call on what’s "constructive" – often we misunderstand constructive opinions as hostile when we’re overcommitted to our own position – but more because we don’t trust people in power not to abuse their authority to silence opinions they find merely inconvenient. It isn’t that we fail to recognize that speech that doesn’t meet the Brandenburg test can still be harmful – far from it. It’s just that we want the burden of proof for what counts as (legally) "harmful" to be high. We choose to draw the line in such a way that a lot of harmful speech slips through so that we can be certain that no legitimate speech is unfairly silenced. There IS a tradeoff.
Now, perhaps there’s a case to be made that we should make the tradeoff differently. Perhaps there is good reason to believe that we can keep speech like Phelps’ contained without substantially increasing the risk that our leaders will abuse their new authority to silence specific opinions. Perhaps the authorities are better than we think at deciding what speech is "pure incitement." Perhaps we are better than we think at knowing what’s right and wrong such that we don’t need to protect "offensive" opinions. But if that case can be made (which I strongly doubt, but never mind), it hasn’t been made in this column. All this column does, in the end, is add one to the long list of people known by the public to have been successfully annoyed by Fred Phelps.
What would it mean to "spotlight the marketers of polarization and say ‘enough?’" The column doesn’t say. How do we know a "marketer of polarization" when we see one? The column doesn’t say. Are "marketers of polarization" always a net negative, or are there cases when polarization is beneficial or necessary? Is there a difference between being polarizing and "marketing polarization," and if so, what is it, and how do we identify it? And, having identified it, what sort of remedial action is Mr. Snider proposing we take? Phrasing his conclusion the way he does — that we all collectively say "enough" — makes it sound awfully like he’s proposing a ban on this kind of speech, but a ban defined how? Enforced by whom? With what penalties?
Most important of all, what is to be gained by such a ban? "A handful of unpicketed funerals" is about all I can come up with, and that hardly seems worth the dilution of an important Constitutional protection. At the end of the day, Fred Phelps has been completely unsuccessful. He’s gotten a lot of attention, no denying that, but has he convinced even a single person who didn’t already to "hate fags?" He certainly hasn’t stopped the march of toward public acceptance of and legal equality for homosexuals: nearly every landmark in the gay rights struggle has occurred after he started making headlines, when you think about it.
Fred Phelps, indeed, would seem to be an instance of what Ken White likes to call the "marketplace of ideas functioning as advertised." Phelps has an idea which most people find offensive, he expresses it loudly, and the public responds by condemning him, counterprotesting his protests and even holding him up as a warning to people of where concentrated intolerance will take you. I want to stop just short of saying that Phelps has been a positive influence in spite of himself – but I do think it’s difficult to maintain he’s been a wholly negative one.
One of Paul Graham’s many good essays is called What You Can’t Say. It’s about moral fashion and public taboo, and it’s a good antidote to reasonable-seeming suggestions, like the one that may or may not be getting some fuzzy expression here, that we set limits on how offensive people can be. There are a lot of good points packed into that essay, and among them is the idea that what’s "offensive" is frequently, if not always, a matter of political fashion. If something offends you, it behooves you to ask yourself why, and specifically, to ask yourself whether your reaction is keeping you from honestly evaluating the "offensive" position.
Now, the point of bringing this us isn’t to suggest that Fred Phelps has hit on a truth the rest of us are missing, but just to note that a lot of people who have hit on truths the rest of us won’t let ourselves see need the space Mr. Snider is suggesting we deny Phelps in which to express them.
It’s not as though we lack examples of people purporting to take offense as a tactic for shutting down a line of discussion they find inconvenient. A prominent one from not too long after Dick Snider’s funeral that springs to mind is Nancy Hopkins walking out on Larry Summers’ NBER speech about the position of women in academia. Recall that she claimed that what Summers said was so offensive that she became physically ill on hearing it and had to leave the room – and then, apparently, run and tell on him to the Boston Globe despite everyone having agreed beforehand to keep the confernece closed to the public so that ideas could be more fairly debated, but never mind. The point is that nothing Summers said was actually offensive, or actually demonstrably untrue, or actually beyond the pale of debate. It was a clear case of an unscrupulous individual using emotional blackmail and mob mentality to keep ideas she doesn’t like off the table – and unfortunately, she mostly succeeded in the short term. People can, will, and do abuse the "offense card," and so all else equal, I’d rather not hand these people a legal weapon to add to their already copious social arsenal. It’s because the social arsenal is so hefty that we have a First Amendment.
This essay doesn’t meet its burden of proof. It doesn’t really even try to meet it. All we get in the way of argument is a politically irrelevant family annecdote (in which it isn’t even clear that Phelps actually offended anyone – does anyone who attended Dick Snider’s funeral seriously believe he’s "in Hell?" That he was part of a "fag media?") and the undefended assertion that if the Supreme Court upholds damages for Snyder’s family it’s "not the latest beginning of the end for free speech."
It doesn’t have to be "the latest beginning of the end for free speech." We don’t need to believe in a slippery slope danger to demand you make a better case than this. Rights are not rights in any meaningful sense of the word if they’re defeasible by simply relating a single not-entirely-relevant family annecdote. A thing also doesn’t have to set a chain of events in motion by itself to be dangerous later on down the road. It could be a generation even before someone digs in and starts seriously abusing the prohibition against "marketing polarization." One of the things you don’t know, at any given time, is how much of the status quo of your freedoms are in place beause of legal protections and how much are there just because of gentlemen’s agreements that keep people reasonable in spite of what the law allows. We often find that when the gentelman’s agreements break down, the law is a nice backup plan. This is why, among other things, you don’t consent to a search if the cop doens’t have a warrant even if you have "nothing to hide." Even if you trust the cop standing before you, you’re just making it harder for everyone else who needs that crucial protection against police abuses of power by letting "sure, have a look in my car" become the new normal.
The Kansas State Capitol belongs to the public – a public which, like it or not, includes Mr. Phelps, who pays his taxes – and so people are absolutely entitled to express their opinions there regardless of whose sensibilities those opinions might offend. That is, after all, the founding principle of free speech – that you don’t get to decide, based on content alone, what counts as acceptable. As it happens, Mr. Phelps has been judged by the court of opinion and found wanting already, so if the rest of us ignore him he will definitely go away in the end. What seems less likely is that any laws designed to silence him will leave with him when he’s gone. Mr. Phelps, in other words, doesn’t strike me as much of a danger to the public. The "remedy" suggested by Mr. Snider’s column, if taken to its logical conclusion, very much would.