In the Snyder v. Phelps case, CJ John Roberts wrote:
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation, we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.
Remember the old adage, “sticks and stones may break my bones, but words will never hurt me”. Is that really true? I have said it but didn’t feel it. Physical scars can heal. Mental and emotional scars can linger for a long time. Hate speech hurts, and it can have a widespread impact. As Justice Roberts suggests “speech is powerful. It can stir people to action, move them to tears of both joy and sorrow.” Words matter.
This case, while stirring sympathy and outrage on behalf of the victim, epitomizes the Constitutional principle of free thought as expressed by Justice Oliver Wendell Holmes, Jr.- “freedom for the thought we hate.” The speech and act as distasteful and egregious as it was, was in compliance with regulations and the manner in which it was disseminated. The almost unanimous support of the bench asserts this protection for Westboro and the lawful right of others to expression that meets like criteria.
Justice Holmes’s formula for punishable speech is ”whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that will bring about the substantive evils that Congress has a right to prevent.” Holmes goes on to say that speech can be punishable if “its natural and probable effect” would in time have led to a crime. In the Abrams dissent cautioned “against attempts to check the expression of opinions that we lother and believe to be fraught with death unless they so imminently threaten immediate interference” with the law.
In the United States, more than any other country, we allow an expansive free of speech. Yet, with great freedom and privilege comes great responsibility. Americans have the right and freedom to speak on matters of public importance. That right allows for the expression of controversial viewpoints that serve as checks and balances and competition of the market of free ideas but which can also inflict harm or have a negative impact on individuals or groups of individuals. As Justice Alito commented in his dissent of Phelps v. Westboro, “the discussion of public issues can be fully articulated without harming innocent people for arbitrary reasons.” I agree with Justice Alito and suggest we can promote civil discourse that expresses the diversity of thought while still acknowledging the dignity and worth of each individual.
The First Amendment allows a wide range of speech addressing public matters in a public setting even if it is harmful to some members of the audience. How do we regulate free speech without infringing on the rights that our First Amendment protects? Where is that line? Can we trust in the goodness of fellow citizens to exercise the unfettered right to freedom of speech with empathetic and judicious discernment? Must we impose regulation or can we trust in ourselves and our fellow citizens to regulate their own conduct for the ultimate good? As Justice Holmes suggests, “Is the best of truth, the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out?”