Wednesday, October 06, 2010

Freedom is a double-edged sword - 2

The US Supreme Court is presently hearing a case which promises to leave a long-lasting impression on the interpretation of the First Amendment, and the future of the right to free speech.

The case has been brought by Albert Snyder, father of a US Marine killed in Iraq, against the pastor of the Westboro Baptist Church for invading his privacy by holding an anti-gay, anti-military protest at his son's funeral.

The Westboro Baptist Church is notorious for conducting their acerbic demonstrations at a number of private and public gatherings like funerals, church meetings, and sports events, and Snyder is not the first or last person they have hurt.

Personally, I think having a private funeral disturbed by a political protest would be painful, and my sympathies are with Snyder.












However, the fact that the demonstration caused emotional distress to Snyder is no reason why the court should rule in his favor. Remember that in this case, the facts are not in questions, the interpretation of the law is. Whether the church members' conduct caused pain to Snyder is not in doubt; the question is whether holding them guilty would undermine First Amendment rights.

If the Supreme Court does rule in favor of Snyder, it will set up a precedent whereby any form of non-violent expression which threatens to hurt other people's feelings will be open game for litigation. This has frightful shades of laws such as IPC 295A which makes it a crime to "outrage the religious feelings of (others)", the law the empowered the Indian government to ban Satanic Verses (and has led to a number of frivolous lawsuits such as the the Ravi Shastri one).

As one of the Supreme Court justice remarked today, local laws creating content-neutral zones around funerals are a better response to a situation like this than a personal-injury lawsuit. I agree.

* * * *

While rooting for a decision against Snyder in this case, I wouldn't like to come across as being dogmatic about First Amendment rights. In past cases, the US Supreme Court has reaffirmed that First Amendment rights are not absolute, and I do acknowledge that (read more about exclusions here).

* * * *

The justices seem to be having fun. Below is an excerpt from a discussion from the transcript of today's oral arguments on this case:
Justice Alito: Well, it's an elderly person. She's really probably not in -- in a position to punch this person in the nose.

Justice Scalia: And she's a Quaker, too.

(Laughter.)
Incidentally, the topic of discussion here was exclusions to free speech rights.

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