Jewish World Review March 4, 2011 / 28 Adar I, 5771
Drawing a Line Between Garbage and Gold
By Jonah Goldberg
I think the decision is a travesty. But, alas, after reading it, I also find it perfectly defensible, probably even correct. Anyone familiar with the concept of "garbage in, garbage out" can appreciate that this isn't necessarily a contradiction.
The court had to deal with the narrow facts of this case, the relevant trial history and precedents, and doing so, they came out in a terrible place: in effect defending a "right" Phelps should not have. As Chief Justice
But you wouldn't get the sense that this was a narrow, even shallow, victory for free-speech absolutists based on much of the commentary about it. Nearly all of it boils down to a single insight: Just because speech is offensive doesn't mean we can ban it.
Making funeral protestors "shut up" is tempting, concedes the
These are fine as expressions of general constitutional values shared by most of us. But they're absolutely useless for figuring out how to treat speech in the real world.
For example, in its decision the court upheld severe regulations on funeral protestors. Indeed, Snyder himself couldn't make out Westboro's signs or hear their chants at the funeral, because
Why don't these restrictions offend free-speech absolutists?
Perhaps because, even though we like to mouth platitudes, we actually recognize that some speech is so vile, so beyond the pale, that we as a society understand that it might impinge on other things we hold dear -- like the reasonable expectation that a parent might have to bury his child respectfully and in peace.
And that's why Phelps' tactics are the real issue, as Justice
Nobody questions Phelps' right to say what he wants to say -- about anything. The question is whether funerals should be "no-free-speech zones," as some absolutists put it.
Forty-three states already say, in effect, that yes, military funerals should be zones of relative decorum. What remains a mystery is why the other seven states haven't followed suit.
Free expression and debate will continue to thrive in
Oh, but what about the terrifying prospect of a slippery slope that in short order will take us from banning the desecration and exploitation of funerals to an Orwellian society?
We draw lines all the time. It's what serious, self-confident societies do. I would rather get the placement of the line wrong from time to time than live in a society that says there can be no lines.
Unfortunately, America is ensorcelled by categorical thinking. Some offensive speech is worthwhile, constructive and necessary. Other offensive speech is reprehensible and indefensible. But, we are told, whether its garbage or gold, it has equal standing before the law. And that's why so much garbage goes in, and so much comes out.
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