Fire!

In the ongoing debate about the proposal to regulate how members of the public can express themselves at school board meetings, several people have argued that free speech must have its limits. One example, from this comment thread:

As for freedom of speech, all freedoms have their limits. Freedom of speech doesn’t mean it’s okay to yell “fire” in a crowded theater. It’s also not okay to disrupt a public meeting by calling another citizen a whore.

The writer is right that there are limits and that the government can punish a person for yelling “fire” in a crowded theater. However, the writer’s conclusion does not follow from her premise, and does not appear to accurately reflect current law. I think many people would be surprised to know just how broad American protections of speech are.

The one example I’ll focus on here is from just three years ago. The plaintiff in the case was a man whose son was a Marine accidentally killed while serving in Iraq. During the son’s funeral, members of the Westboro Baptist Church picketed on a nearby public street. Members of the church believed that God was punishing the United States, and particularly its military, for its tolerance of homosexuality. Timing their protest to coincide with the funeral, they held up signs saying, among other things, “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.” The soldier’s father sued the church for intentional infliction of emotional distress.

It’s hard to imagine a case better designed to test one’s tolerance for offensive speech. Yet the Supreme Court held, by a vote of 8-1, that the First Amendment prohibited the state from imposing liability on the church for its protest. Here are some excerpts from the court’s opinion. (For readability, I’ve omitted the citations and added boldface for emphasis; you can read the full opinion here.)

“[S]peech on ‘matters of public concern’ ... is ‘at the heart of the First Amendment’s protection.’” The First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” That is because “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Accordingly, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” . . .

Speech deals with matters of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public” . . . . The arguably “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.”

Our opinion in Dun & Bradstreet, on the other hand, provides an example of speech of only private concern. In that case we held, as a general matter, that information about a particular individual’s credit report “concerns no public issue.” . . . To cite another example, we concluded in San Diego v. Roe that, in the context of a government employer regulating the speech of its employees, videos of an employee engaging in sexually explicit acts did not address a public concern; the videos “did nothing to inform the public about any aspect of the [employing agency’s] functioning or operation.” . . .

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Indeed, “the point of all speech protection... is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” . . .

In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of ... ‘vehement, caustic, and sometimes unpleasan[t]’” expression. Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” . . .

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. That choice requires that we shield Westboro from tort liability for its picketing in this case.

So suppose Person A, while in the audience at a school board meeting, were to call Person B, a speaker at the meeting, a “whore.” (I’m treating the example as a hypothetical, since I have no first-hand knowledge that it ever occurred.) Suppose Person B is a community activist who had recently run for school board and had already announced his intention to run in the next election. No one reasonably understands Person A to be suggesting that Person B is actually selling sexual services; it’s clear that Person A means that Person B has “sold out” in some way that’s relevant to school issues. Does Person A’s epithet count as speech on a matter of public concern?

If picket signs saying “God Hates Fags” and “You’re Going to Hell” near a military funeral pass the test, it’s awfully hard to see how calling a political candidate a “whore” could fail it.

Depending on the hypothetical, Person A’s comment could certainly run afoul of other permissible restrictions. For example, the board can insist that members of the audience not interrupt those who have the floor. But the board can’t single out for punishment only those interruptions that use harsh but protected speech on matters of public concern.

From some of the commentary online, you would think that speakers at our school board meetings were being routinely shouted down. That’s not at all true. It’s definitely true that at least one speaker has spoken with an intensity and a harshness that makes some people uncomfortable. It’s precisely that intensity and harshness that some people hope the proposed policy will ban; the policy’s defenders have repeatedly argued that it’s fine for people to express criticism as long as they do it “respectfully.” It’s hard to see how that rationale could be constitutional in light of cases like the one above. (And it’s not the only one.)

I consider myself lucky to live in a country with such broad protection of speech. People are free to disagree about that, of course. But, like it or not, First Amendment protections are very broad. When the board members make their decision about the proposed speech regulation policy, they should do so with their eyes open.
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