On Freedom of Speech and Publication: a belated reply to a

young friend
Markham Shaw Pyle
Bapton Books
A young friend of mine writes or wrote: I have been an unconscionable time in replying as he had asked
that I do, and can plead only the press of other business , on social media, as follows (unedited):
Hey there! This is a pretty long post about freedom of speech. Feel free to pass it up, but if youre
tagged here, its because I genuinely value your opinion on this subject and would love to hear your
input. I know its a little long, but Id really like to refine my ideas on this, and make sure theyre
based in sound reasoning and evidence.
So me and Tim got into a rousing discussion about freedom of speech, and I wanted continue that
discussion here. Let me preface by saying we both support freedom of speech (and press, and
religion, and assembly; just mentally add those where theyre relevant any time I say freedom of
speech, free speech, etc.), but for different reasons.
Tim would say freedom of speech has intrinsic valuethat is, you dont have to point to some
positive externality in society to justify it. According to this theory, if youre speaking your mind and
arent directly threatening anyone with physical violence, the government should take your side,
100% of the time. Tim, feel free to pipe up if Ive misrepresented you here.
Tim is right, as we shall see.
Id say freedom of speech has extrinsic valuethat is, freedom of speech does need to be justified by
positive externalities. I dont think that the right to say whatever you want, wherever you want, and
whenever you want is an inherently good thing like, say, the right to live. That said, free speech has
two big positive externalities going for it which make it a worthy right to defend.
The #1 positive externality is being able to criticize public or private institutions openly, without
being worried that those institutions are going to come down on you. Thats the most important,
because if that kind of speech isnt legally protected, historically things dont go well for you if you
engage in it. Just ask Martin Luther, or Galileo. You get the idea. You shouldnt be put in jail, or
under house arrest, because you said something that a powerful institution found threatening, unless
you actually threatened that institution with physical violence (i.e., sedition or sabotage).
The #2 positive externality is being able to discuss your ideas, beliefs, opinions, and tastes openly and
peacefully. That second part is especially important. Imagine youre having a discussion on who
youre voting for this election with someone whos voting for the other partys candidate. You use
neutral language, you work especially hard to back up what you say and not be insulting to opposing
viewpoints, and you avoid slurs and buzzwords. Nevertheless, partway through the conversation, the
person youre talking to decides theyre not interested in hearing your opinion anymore, and
expresses this by pointing a firearm at you. That person is clearly in the wrong. Also, you should
probably leave as quickly as possible.
Or shoot the bastard first, once hes pulled his sidearm.

But heres a more complicated version. What if instead, the person you were talking to didnt pull a
gun on you, but instead called you a fascist, communist, or corporate shill multiple times, and
insulted your family, friends, character, ideals, religious beliefs, race, ethnicity, language, gender
identity, and/or sexual orientation.
Yawn. Welcome to my mornings, brought to you, I might add, by the Left and the Orwellianly self(mis-)named Social Justice Warriors (who, like the Holy Roman Empire, are none of those things).
Theyre extremely vulgar and disrespectful, to the point where they stop making arguments and start
hurling insult after insult after you. You try to leave the conversation, but they block your path
multiple times. Finally, you lose your patience and punch them across the chin and knock them to
the ground. Id argue you shouldnt be held accountable for that, because they used words with
purposeful intent to harm, they stopped saying anything you might learn from, and you tried to
leave the conversation peacefully when it was no longer constructive.
Nope. You lawfully cold-cock the son of a bitch because hes physically blocking your path when you
try to walk away, not because hes ranting like a jackass.
In the 1942 case Chaplinsky vs. New Hampshire, SCOTUS ruled that Certain well-defined and
narrowly limited categories of speech fall outside the bounds of constitutional protection. In the
words of Justice Frank Murphy: The lewd and obscene, the profane, the slanderous, and (in this
case) insulting or fighting words neither contributed to the expression of ideas nor possessed any
social value in the search for truth. Now, Im putting a little faith in SCOTUS and presuming
theres an actual specific, itemized list of these forms of speech, but Im not sure on that. Hopefully
some of the more legally educated people on FB could help me out here.
And so we shall. (I may add that my young friends faith in the Supremes specificity is touching, if
misplaced.)
If I were Justice Frank Murphy, Id probably specify that the words had to be both inflammatory
AND useless, with a very strict definition of useless. If you just presume very inflammatory
statements are useless, you endanger a lot of forms of dissent, like parody, manifestos, satire, etc.
Regardless, I think that refusing to protect speech that is both inflammatory and useless is a pretty
sound idea. The Westboro Baptist Church shouldnt be surrounded by police when they go to a
veterans funeral and gleefully sing mocking songs about how much God hates that veteran and is
currently taking joy in torturing him.
Oddly enough, one of the more notable decisions among the progeny of Chaplinsky is Snyder v
Phelps, 562 US 443, 31 S.Ct. 1207, 179 L.Ed.2 d 172 (2011). Hint: it does not help my young friends
argument.
Now this all might seem like a very unintuitive, slippery slope, and it can be hard to identify with
someone in that position. So lemme offer you this video: https://www.youtube.com/watch?
v=1wcrkxOgzhU
In case you cant watch it right now, Buzz Aldrin was getting harrassed by Bart Sibrel, a moon
landing denier who called Buzz a thief and a liar, said he wanted Buzz to sue him, followed him after
Buzz tried to leave the conversation peaceably multiple times, and then started calling him names.
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Buzz responded by punching his lights out. I have not shown this video to ANYONE who doesnt
empathize with Buzz in this situation. This is a perfect example of what Im talking about, and in this
case, the law agreed with me:
When Aldrin refused, Sibrel followed him and repeatedly called him a coward, and a liar, and a
thief. Aldrin finally punched Sibrel in the jaw, while being recorded. Sibrel later attempted to use the
tape to convince police and prosecutors that he was the victim of an assault. However, it was decided
that Aldrin had been provoked and no charges were filed. Many talk shows aired the clip, usually
siding with Aldrins response. Sibrel said later that he wrote a letter of apology to Aldrin.
Everyone did empathize with Col. Aldrin. Including, obviously, the police and the prosecutor. That
does not really speak to the legal issue, which, had it been charged and tried, might well have been rather
different, including in the result. The defense would probably and with a fair chance of success (even
aside from the defendants being, well, Buzz Aldrin) have argued, not the exiguous fighting words
doctrine, but, rather, Brandenburg incitement. See Brandenburg v Ohio, 395 US 444 (1969), 89 S.Ct.
1827; 23 L.Ed.2d 430.
So I dont think Im being particularly controversial when I say inflammatory, useless, and
demonstrably false statements should not be protected by free speech.
Guess again. In fact, of course, if free speech protects only anodyne statements to which no one
objects, Its Not Free Speech. That is precisely the point.
Id also say that lying on a grand scalelike saying the Holocaust never happenedprobably
shouldnt be protected either. If all youre trying to do is spread misinformation when there is an
overwhelming body of evidence against your position, and youre doing so in order to spread racial
hatred or hateful ideologies like Nazism, then weve gone past the point where youre contributing to
the exchange of ideas. Ideas that have been overwhelmingly proven not only wrong, but downright
poisonous, shouldnt be protected. In fact, thisll probably get some people to polarize against me
pretty hard, but I dont see anything inherently wrong with it being illegal to deny the Holocaust, or
say vaccines cause autism. Allowing those ideas to spread is existentially dangerous to humankind, or
at least, to millions of people.
Uh-huh. And what about socialism and communism? These are demonstrably false nostrums which
have killed millions when- and wherever put into practice, after all....
Just so youre following my logic and dont accuse me of restricting free speech to protect free
speech, remember, I dont posit that free speech has intrinsic value. It has extrinsic value, and its
those extrinsic valuesspeaking truth to power, and speaking your mind openly and peacefully
that we should seek to protect. 99 times out of 100, protecting someones right to say whats on their
mind in their own words also protects those extrinsic values. Im talking about the edge cases where it
doesnt.
Does that mean I think that free speech needs to be more restricted in our society? Not really. In fact,
theres still a lot of de facto restrictions on freedom of speech that need to go away. For example, if
you criticize the company you work for, theyre in a great position to fire you unless you have a really
good union. Thats fundamentally wrong. You should be able to criticize your place of work openly.
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Youre probably spending at least 20 and up to 80 or even more hours a week there, where they can
dictate exactly what you do during that time. Youll probably spend a double digit percentage of
your lifetime at work. If were going to say that you should have a right to criticize your government,
who will have a much less direct effect on your life than your job, you should absolutely be able to
criticize your place of work to the same degree. As of now, it requires significant organization from
workers to allow that criticism without that institution coming down on you.
And theres the main problem with the whole of the argument: my young friend has things absolutely
backwards. Not least in the belief that a company that can fire your trash-talking ass but not keep you
from working somewhere else has less power to ruin your life than does a government that can toss your
ass in jail and shoot you if you resist arrest.
Id say an intrinsic value model of free speech is inherently dangerous, because it allows no penalty to
be dispensed for harmful, grand scale perjury. The anti-vaccination movement, for example, has
shown that allowing people to distribute clear falsehoods while being protected by freedom of
speech can result in existential dangers to society. Look up herd immunity if you want to know a
little more about this. Some people genuinely cant afford to get all the vaccines they need for their
kids.
Perjury is one of those words like treason in the recent election and current post-election
which gets thrown around carelessly. Both have a specific legal meaning; both, as crimes, have specific
elements which must be proven (and specific penalties when proven). Being a screeching Organic Marin
Hippie Anti-Vaxxer is not perjury (unutterable stupidity, yes: you wonder how people that fucking
stupid manage to get the whiskey in the right hole: but not perjury). Even an incomprehensibly stupid
belief or opinion sincerely believed and this is key stated under oath (which is when the penalties of
perjury apply) is not going to be perjurious. If it were, we could (say I, mischievously) prosecute every
Prot on everything, every Muslim on every point of theology, every RC on several points in the
Magisterium, and every last one of my fellow Anglicans whos not a Twenty-Eighter and a believer that
only men can be validly ordained to Holy Orders.... Yes, I am being deliberately outrageous here.
Deliberately: because expanding the definition of perjury to any incomprehensibly stupid belief or
opinion sincerely believed and stated under oath, or, worse yet, to any such stated not under oath, leads
inexorably to, inter alia, blasphemy laws, prosecutions thereunder, and an establishment of religion just
as much as of any secular orthodoxy.
One last thing Id remind people aboutlegally, the definition of free speech can get stretched to the
point where youre exercising your free speech if you donate to a politicans campaign in exchange
for them supporting your position, so that people who make and enforce our laws have a financial
incentive to support that position even if they dont believe it personally. I think we can all agree
thats not a good thing.
Think again.
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This is the part where I admit my research is from Wikipedia, so again, feel free to fact check this. Ill
list the pages I sourced in a bit. However, saying Wikipedia is unreliable and not producing
counter-sources is not fact-checking. It is a cheap tactic to appear smart on the internet. I think
Wikipedia is a good enough source for an internet conversation, but I recognize that it isnt wholly
reliable. Ill welcome any and all counter-sources people are willing to present if you think any of my
research was in error.
I pause to marvel at the innocence of believing that Wikipedia is a good enough source for an internet
conversation, but the point is not material.
My young friends father, an old pal of mine, reminded him, gently, that I have written on this topic
before. My young friend then added far too long ago, but I have been right busy with actual paying
work I could not in any sense afford to set aside as follows:
***
Hey MSP, Ive made this additional response to prepare for your arrival in equal parts excitement
and terror. Hopefully thisll let us jump off that and explore some deeper issues. Im focusing on a
particular part of my original diatribe, namely where I mention the anti-vaccination movement.
To reuse your quote of John Stuart Mill:
The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race;
posterity as well as the existing generation; those who dissent from the opinion, still more than those
who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for
truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier
impression of truth, produced by its collision with error.
This ideal of free speech would be flawless if the whole world were like the inhabitants of Limbo in
Dantes Inferno, debating the mysteries of the universe in good faith, shackled firmly to logical
principles. In that world, if someone started ignoring the issues and resorted to plain old
demagoguery, or all the other ways you can sneak an idea into somebodys head without them
properly thinking about it, their argument would be dismissed without further ado.
But thats not the world we live in.
Ill assume thats true of the world, arguendo. Its a rather Madisonian point (if men were angels, see
Federalist No. 51). But granting that, how do you then get to the conclusion that government of all
conceivable human institutions ought to intervene?
Id like to give a little personal background before a proper counter-argument, if its alright. My
education is in Marketing, and I wound up leaving it because I saw no way to practice it honestly.
Every single, small detail of how you present to a consumer is meant to worm into their head without
them noticing, without them even being consciously aware that youre affecting their thoughts.
Once I started reading actual marketing research papers in senior year and seeing how marketers look
at human beings, my skin crawled at the prospect of a career in it. Thank goodness I found a
respectable career in IT instead.
My young friend forgets that both his father, and I, are retired lawyers. Marketing has a much rosier
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view of the human condition than has the law. Talk about a trip through a sewer in a glass-bottomed
boat....
It starts to affect how you look at the world. Once you get a detailed knowledge about how this stuff
actually works, you get paranoid, wondering if youve been invisibly influenced by some signage on
the road or a 30 second advertisement on television. Its the major reason I dont own cable, and I
traverse the internet with my ad blocker turned on with only a handful of exceptions. So far, the only
news I trust is NPR and BBC.
Oh dear.
Even then, I give them some cautious glances at times. Theres two simple truths I learned from that
godawful practice: Most people are affected by advertising in some way or another, frequently
without being consciously aware of it, and most people earnestly believe it doesnt affect them at all.
You mentioned, in your treatise, that certain people are afraid of debate because they have subsumed
their identity into an ideology. That fate, in particular, Ive tried to avoid to a nearly pathological
degree. I (try to, at least) treat my ideas like a sultan should treat a vizier who wont stop twiddling his
mustache. So naturally, Ive sent quite a few of my beliefs to the axe. From the start of high school to
now, Ive gone from being liberal, to conservative, to libertarian, to conservative again, to moderate,
and now I see Im leaning left again. Thats why Im really interested in your input. The idea Ive put
up in the main post is shifty, but I dont have hard dirt on him yet, at least from my angle. But hes
got glossed, beady eyes and his mustache curls at unnatural angles. Im sure you share my
reservations.
Alright, enough of all that. Now that you know where Im coming from, lemme get to the people I
want to talk about as a counter-example to Mills statement: Anti-vaxxers. Im sure they need no
introduction.
Anti-vaxxers have been debated, as much as one can debate with them, to hell and back. Everyone
with half a gram of knowledge about medicine and, given Ben Carsons despicable endorsement,
with a half gram of integrity, has told them the whole enterprise is crock, and demonstrated it in
every possible way.
(Any time I think of Ben Carsons endorsement of this movement, I think of Treebeard learning
about Saruman cutting down the forest for his war machine. The wizard should know better!)
They dont care that, by any reasonable metric, theyve lost the argument. Theyre still trying to
lobby anyone wholl listen. Theyre posting advertisements in the form of memes, banner ads,
whatever they can grab a hold onto, trying to terrify still more parents into doing perhaps the most
irresponsible thing one can do with their child short of throwing them in a ball pit full of Brown
Recluses.
So my question, Mr. Pyle: If an idea holds a truly present, immediate existential threat to humanity
(or at least a very significant portion of it), as I would think the anti-vaccination movement does (the
casualty figures for smallpox alone would make any bloody-minded tyrant blush with jealousy) and
has been soundly trounced in debate over and over again, yet continues to spread, what would you
prescribe? When that clearer perception and livelier impression of truth, produced by its collision
with error never shows up, whats our next move?
Ill tell you what isnt: prosecution.
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When proving an apocalyptically bad idea wrong doesnt make it stop spreading in some cases
makes it spread faster what do we do?
Nothing, unless evil or unlawful action results from the spread of stupid opinion.
But enough of the piecemeal responses.
All right, then. Here we go.
We can begin by Defining Our Terms. (It worked for the Greeks, after all.)
Im not certain precisely what my young friend means by intrinsic value when he denies that
freedom of speech and of the press has it; but lets see if we can untangle this. This freedom is a right. It
does not derive from government: it antedates it. Its protection is one of the legitimate purposes for
which a government is properly instituted. It is a universal human right: that is, every man, woman, and
child (upon attaining the years of discretion and understanding), simply by virtue of being human, has a
right, and very nearly an absolute one curtailed only by the equal rights of others dont perk up: well
get to that , to speak and publish freely. (A child who has not attained to the years of discretion and
understanding exercises the right subject only to parental veto, immediate or delegated, and this is so only
because an unemancipated minor is in law not liable in damages or, generally, in criminal proceedings,
and the parent or the parents delegate is liable for what the child does. This is an important point, as we
shall see.)
Now, how do we know this statement to be so?
Well: imagine the converse. If this is not an absolute human right, one inherent in being human, it
must then be a license or a privilege. Licenses and privileges may be granted or denied by others: mobs,
majorities, or magistrates. Sometimes, they may be granted or denied upon some principle; otherwise,
upon whim, or cronyism, or a nice, fat bribe. And even when granted, they are subject to revocation.
(This is what some elements on the Right and damn nigh all of the Left want: the ability to silence
opponents they cant out-argue. Wherefore social justice and similar rackets.) The licensed or privileged
speaker, one who has not an inherent right to speak, is not free. His moral agency is compromised. He is,
in short, a slave. Well, run up the Stars and Bars and whistle Dixie, but I dont think that a good thing
to be, or that a one of us would tolerate being it. A sympathetic, principled, indulgent magistrate licensing
speech to privileged speakers, and determining who does and who does not obtain this grant of privilege,
may be a kindly slavemaster. But he is a master all the same. As Frederick Douglass noted, the slave of a
bad master wishes for a good master; but the slave even of a good master wishes to be free.
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And this in turn implicates another of my young friends points: the (rash) assertion that
the definition of free speech can get stretched to the point where youre exercising your free speech if
you donate to a politicans [sic] campaign in exchange for them supporting your position, so that
people who make and enforce our laws have a financial incentive to support that position even if
they dont believe it personally. I think we can all agree thats not a good thing.
To the contrary. (As Milton Friedman said, the answer is not to throw the bastards out, its to make it
political suicide for even the wrong people in government to do anything but the right thing. The
financial incentive to which my young friend refers is not a personal one, in that the contributions do
not go straight into the bastards pockets (if they do, on occasion, the bastard goes in turn straight to Club
Fed), but a political one. An Edmund Burke can properly substitute his own principled judgment for the
will of the mob in his constituency; but there are few Burkes in politics, now or ever. If men were
angels....)
If the government, the State, is to expand its habit of picking winners and losers in the marketplace
(where it invariably picks wrongly and backs the horse that collapses out of the gate) to picking winners
and losers in the marketplace of ideas by deciding who gets to speak and who gets to Shut The Fuck Up
on what basis can even a principled magistrate issue this license? Pure democracy, even though it lead to
the tyranny of the majority? No: because if the freedom to support a legislator by action and contribution
is deemed speech, and speech is licensed and controlled, how can the magistrate know what the majority
actually think and believe? Well, then, by some Constitutional standard? Not really: for those standards
must be established by well, by whom? The silenced citizenry? Their alleged representatives who claim
that status by elections inevitably deformed or fixed by the silencing of one or another faction whose
speech is not favored by the State, based upon the States own partiality and partisan interest? I need not,
I think, pursue the reductio to any further nadir of absurdity.
So. The right to speak and publish freely, and to back ones words with ones purse, even or especially
in matters of political speech (theres a reason the Signers pledged their lives, their fortunes in both senses,
and their sacred honour, to the cause), is independent of and antedates and is a prerequisite to the
establishment of any government, the part purpose of which is defending that right.
But what is that right? In other words, against whom or what is the right of free speech and
publication exercised?
It is a right against the State.
The State has two obligations in preserving and defending this right. The first obligation is to refuse,
8

with outrage and due consequences, to prosecute its exercise when urged to do so by cronies, passers of
bribes, shouting mobs of knuckle-dragging pissants, the rich, the powerful, and its own creatures and
servants in government and the bureaucracy or anyone else. The second is to defend the speaker against
mobs, twats, jackasses, crooks, gangsters, politicians (but I repeat myself), SJWs (but I repeat myself),
bureaucrats (but I repeat myself), Trumpshirts (but I repeat myself), brainless (but I repeat myself)
celebrities (but I repeat myself), academically-credentialled morons and fraudsters (but I repeat myself),
fanatic adherents of religion or of irreligion (but I repeat myself), self-appointed Moral Guardians (but I
repeat myself), and so on.
This, by the way, is one of the instances in which my young friend gets it flat-out, plumb backwards.
Where there is freedom of contract, a company can and probably ought to fire an employee who runs it
down by shooting his mouth off. (Should because its officers have a fiduciary duty to the shareholders:
who quite likely are pension funds for retired schoolteachers and first responders, and elderly widows on
fixed incomes, and the like.) It is not an interference with his freedom of speech to do so (unless the
employer is somehow governmental, an arm of the State); and it is in the best interest of his co-workers,
whose livelihood he endangers by his self-indulgent mouthiness. I refer you to a well-stated principle:
The worst crime against working people is a company which fails to operate at a profit. The quotation,
by the way, is from Samuel Gompers. Speaking of unions....
In the private sphere, in other words, exercising ones freedom of speech is not and cannot and should
not be devoid of personal consequences so long as those consequences are imposed by some hand other
than that of the State, with its mailed fist.
Well, what about the mailed fist? When is it proper for the State to intervene?
The short answer is, Damned well damned nearly never.
Lets look at the actual opinion in Chaplinsky. I have moved the Courts footnotes into in-line
citations.
Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well
understood that the right of free speech is not absolute at all times and under all circumstances.
[Schenck v United States, 249 US 47; Whitney v California, 274 US 357, 274 U. S. 373 (Brandeis, J.,
concurring); Stromberg v California, 283 US 359; Near v Minnesota, 283 US 697; De Jonge v Oregon,
299 US 353; Herndon v Lowry, 301 US 242; Cantwell v Connecticut, 310 US 296.] There are certain
well defined and narrowly limited classes of speech, the prevention and punishment of which have
never been thought to raise any Constitutional problem. [The protection of the First Amendment,
mirrored in the Fourteenth, is not limited to the Blackstonian idea that freedom of the press means
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only freedom from restraint prior to publication. Near v Minnesota, 283 US 697, 283 US 714 - 715.]
These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words
those which, by their very utterance, inflict injury or tend to incite an immediate breach of the
peace. [Chafee, Free Speech in the United States (1941), 149.] It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of such slight social value as a step
to truth that any benefit that may be derived from them is clearly outweighed by the social interest in
order and morality. [Chafee, op. cit., 150.]
Resort to epithets or personal abuse is not in any proper sense communication of information or
opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no
question under that instrument. Cantwell v Connecticut, 310 US 296, 310 US 309-310.
Chaplinsky, at 314 315.
Now, what did the Chaplinsky Court actually hold?
At 315, citing Cantwell and Thornhill v Alabama, 310 US 88, 105, it held that, We are unable to say
that the limited scope of the statute as thus construed contravenes the Constitutional right of free
expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within
the domain of state power, the use in a public place of words likely to cause a breach of the peace. It was
not, that is, void for vagueness: cf. Fox v Washington, 236 US 273, 277, 35 S.Ct. 383, 59 L.Ed. 573 (1915).
And at 315, it held, without citation, that, Nor can we say that the application of the statute to the
facts disclosed by the record substantially or unreasonably impinges upon the privilege of free speech.
Argument is unnecessary to demonstrate that the appellations damned racketeer and damned Fascist
are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.
Well and good. But Chaplinsky was decided in 1942. Brandenburg was decided in 1969, and sets out, so
far as anything does, the test for provocation and/or incitement by speech: speech directed to inciting or
producing imminent lawless action and [which] is likely to incite or produce such action. Brandenburg,
at 395. Brandenburg began the process of effectively hollowing out the dubious holdings in Schenck
(while continuing to pay them lip-service), and it explicitly overruled Whitney: which had been the bases
for the decision in Chaplinsky.
Notable among the progeny of Brandenburg is Snyder. Not to get too far into the purely legal weeds
here although my young friend chose that ground himself Snyder is squarely on point as regards my
young friends assertion that
I think that refusing to protect speech that is both inflammatory and useless is a pretty sound idea.
The Westboro Baptist Church shouldnt be surrounded by police when they go to a veterans funeral
and gleefully sing mocking songs about how much God hates that veteran and is currently taking joy
in torturing him.
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Well, the case is styled Snyder v Phelps for a reason. It is four-square on point here. Those toothless
shit-stirrers picketed a Marines funeral (for values of picketing that mean, made contemptible shits of
themselves as usual). The bereaved father sued them.
The Court held, as it really had to hold, as follows:
The Free Speech Clause of the First Amendment Congress shall make no law abridging the
freedom of speech can serve as a defense in state tort suits, including suits for intentional infliction
of emotional distress. See, e.g., Hustler Magazine, Inc. v Falwell, 485 US 46, 5051 (1988).[footnote
referring to dissenting opinion, Alito, J., omitted]
Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns
largely on whether that speech is of public or private concern, as determined by all the circumstances
of the case. [S]peech on matters of public concern is at the heart of the First Amendments
protection. Dun & Bradstreet, Inc. v Greenmoss Builders, Inc., 472 US 749, 758759 (1985)
(opinion of Powell, J.) (quoting First Nat. Bank of Boston v Bellotti, 435 US 765, 776 (1978)). The
First Amendment reflects a profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open. New York Times Co. v Sullivan, 376 US 254,
270 (1964). That is because speech concerning public affairs is more than self-expression; it is the
essence of self-government. Garrison v Louisiana, 379 US 64, 7475 (1964). Accordingly, speech
on public issues occupies the highest rung of the hierarchy of First Amendment values, and is
entitled to special protection. Connick v Myers, 461 US 138, 145 (1983) (internal quotation marks
omitted).
(This, by the way, puts paid to my young friends complaints about political speech, including
campaign contributions.)
[N]ot all speech is of equal First Amendment importance, however, and where matters of
purely private significance are at issue, First Amendment protections are often less rigorous. Hustler,
supra, at 56 (quoting Dun & Bradstreet, supra, at 758); see Connick, supra, at 145147. That is
because restricting speech on purely private matters does not implicate the same constitutional
concerns as limiting speech on matters of public interest: [T]here is no threat to the free and robust
debate of public issues; there is no potential interference with a meaningful dialogue of ideas; and
the threat of liability does not pose the risk of a reaction of self-censorship on matters of public
import. Dun & Bradstreet, supra, at 760 (internal quotation marks omitted).
We noted a short time ago, in considering whether public employee speech addressed a matter of
public concern, that the boundaries of the public concern test are not well defined. San Diego v
Roe, 543 US 77, 83 (2004) (per curiam). Although that remains true today, we have articulated some
guiding principles, principles that accord broad protection to speech to ensure that courts themselves
do not become inadvertent censors.
The Snyder Court also inevitably held, as it was constrained to hold, that the Respondents the
Westboro First Church of Heretic Assholes had complied with reasonable, content-neutral time, place,
and manner restrictions in their demonstration of utter and despicable viciousness.
Simply put, the church members had the right to be where they were. Westboro alerted local
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authorities to its funeral protest and fully complied with police guidance on where the picketing
could be staged. The picketing was conducted under police supervision some 1,000 feet from the
church, out of the sight of those at the church. The protest was not unruly; there was no shouting,
profanity, or violence.
The record confirms that any distress occasioned by Westboros picketing turned on the content
and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group
of parishioners standing at the very spot where Westboro stood, holding signs that said God Bless
America and God Loves You, would not have been subjected to liability. It was what Westboro
said that exposed it to tort damages.
Given that Westboros 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. Texas v Johnson, 491 US 397, 414 (1989).
Indeed, the point of all speech protection is to shield just those choices of content that in
someones eyes are misguided, or even hurtful. Hurley v Irish-American Gay, Lesbian and Bisexual
Group of Boston, Inc., 515 US 557, 574 (1995).
Now, we no doubt agree that the alleged church here is a gang of morally deficient aments. And it may
be that my young friend would like to see the law, and the composition of the Court, and perhaps even
the Constitution, changed to reflect that view. I can only say that hell need free speech, including in the
form of the ability to back his political speech with political contributions, even to hope to effect that
change.
And hed do well to remember that if Snyder be in fact wrongly decided so is Cohen (the famous
Fuck The Draft case), and every other case which acknowledges the right to protest. If to use
examples which may appeal to him now that my young friend is a liberal i.e., a Leftist for the
moment Snyder is wrongly decided, then anti-war protestors, Muslims angry at US foreign policy,
Occupy sorts, anti-Trump demonstrators, BLM marchers, persons intent on re-enacting the Stonewall
Riot, feminists marching for whatever wave of feminism were up to now, and everyone else must also
Watch Their Step and Watch Their Tone....
Our holding today is narrow. We are required in First Amendment cases to carefully review the
record, and the reach of our opinion here is limited by the particular facts before us. As we have
noted, the sensitivity and significance of the interests presented in clashes between First
Amendment and [state law] rights counsel relying on limited principles that sweep no more broadly
than the appropriate context of the instant case. Florida Star v B. J. F., 491 US 524, 533 (1989).
Westboro believes that America is morally flawed; many Americans might feel the same about
Westboro. Westboros funeral picketing is certainly hurtful and its contribution to public discourse
may be negligible. But Westboro addressed matters of public import on public property, in a
peaceful manner, in full compliance with the guidance of local officials. The speech was indeed
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planned to coincide with Matthew Snyders funeral, but did not itself disrupt that funeral, and
Westboros choice to conduct its picketing at that time and place did not alter the nature of its
speech.
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.
All right. Thems our principles. But I want you to bear in mind the posture of Snyder. Although Mr.
Snyder lost that round in court (and although the Westboro Baptist Kluxers lost yet again in the court
of public opinion: theres hardly a socially-conservative evangelical, however dubious about the morality
of that King Charles head of theirs, homosexuality, whod so much as pee on the Westboro Bastard
Church members if they were on fire), consider how the case got to court, and what sort of case the
Supremes were deciding.
My young friends basic concern is, in his words, this:
If an idea holds a truly present, immediate existential threat to humanity (or at least a very significant
portion of it), as I would think the anti-vaccination movement does (the casualty figures for smallpox
alone would make any bloody-minded tyrant blush with jealousy) and has been soundly trounced in
debate over and over again, yet continues to spread, what would you prescribe? When that clearer
perception and livelier impression of truth, produced by its collision with error never shows up,
whats our next move?
When proving an apocalyptically bad idea wrong doesnt make it stop spreading in some cases makes
it spread faster what do we do?
For starters, theres a category confusion here. My young friend begins by describing an idea, or a
movement, as holding a truly present, immediate existential threat to humanity (or at least a very
significant portion of it). Ideas and ideologies in fact do not, in and of themselves, do anything of the
sort. Islamism and Salafism; anti-vaxxer idiocy; flat-earth cosmology; Creationism; anti-Semitism; leftism;
drooling, gawping belief in aliens, healing crystal pyramids, chakras, Obama as light-worker, Trump as
solution, Hillary as a viable and honest candidate; the new BCP; Calvinism; absurd refusals to accept the
facts of, oh, biology and, say, cardiology (Id like to watch the Fat Acceptance Movement talk to the team
that did my triple-bypass, except that the fun would be diminished because Im no longer allowed to have
salt and butter on my popcorn): people can and will believe any damn fool idiocy that comes down the
pike. And as long as they dont act on those idiot beliefs in a way that harms or infringes upon the rights
of others, I Dont Give A Rats Ass, and no more ought you or, especially, the government to do.
Im partial to the formulation in the Constitution of the Great State of Texas-By-God. The Founding
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Farmers were on to something when they decreed that Every person shall be at liberty to speak, write or
publish his opinions on any subject, being responsible for the abuse of that privilege [they meant, right:
this is a distinction less apparent in their time than in ours]; and no law shall ever be passed curtailing the
liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct
of officers, or men in public capacity, or when the matter published is proper for public information, the
truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to
determine the law and the facts, under the direction of the court, as in other cases. (Emphasis added.)
Worried that Idiot Notions and Nostrums are going to Get Us All Killed? Let me introduce you to the
saviors of the Republic. Not the government or its agents. The plaintiffs Bar.
Plaintiffs lawyers get a lot of bad press. And theyve come by it honestly: theyve earned it, many a
time. But, and howsoGoddamnever.
Obviously, if the Kluxers or the Neo-Nazis want to march through Skokie, they have that right so long
as they dont put a foot out of line by unlawful action; and the Republic has the right to expect that if
they do put a foot out of line, they get a nightstick to the head.
But belief, and speech, and advocacy? Thats not action.
By and large, the State is and must be, for everyones sake, constrained in what it can do, and then even
in the most limited circumstances, as regards speech and expression. But action....
You dont punch a jerkass for being a jerkass, unless his words rise to Brandenburg incitement, in
which case you give the son of a bitch what hes literally asking for. You dont throat-punch some
screaming asshole for screaming; but you may well be legally protected for doing so if he is unlawfully
detaining you by threats, violence, and physical force or the prospect thereof.
So lets assume some muu-muu wearing slattern in a double-wide is convinced by the vapid vaporings
of some D-list Hollywood rent-girl-cum-actress sleb to refuse to vaccinate her snot-nosed little bastards.
Lets assume the said little bastards come down with the Black Death or some damn thing. The State has a
right and duty to intervene, and prosecute, and strip her of her parental rights, not because of her beliefs
(to the extent a woman that stupid has beliefs), but because of her actions and inactions predicated on
those beliefs.
(If you think thats a fine distinction, consider this. Recent rises in, and reappearances in this country
of, incidents of disease wed thought wed licked, are causally linked to the failure to control illegal
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immigrations from various Second and Third World hellholes. When does my young friend wish to start
locking up open-borders advocates?)
Lets further assume that all of this and the ensuing incipient pandemic is the fault of a Movement
led by Hollywood dwarf-starlet Bubbles Brannigan. All she has done is express an unutterably stupid
belief and advocate for junk science predicated upon shit research (hi, Michael Mann!). She didnt force
Miz Dreama Beefalo-Charolais of Pig Slop, Aladamnbama, to not vaccinate her little snot-nosed bastards.
What in the words of the old sea-shanty shall we do with the drunken floozy, early in the
morning?
Sue her panties off (if shes wearing any, and not that it ever took a lawsuit in the past to get them off
her). Remember, Snyder, although a narrow win on its particular facts for the West Burro Bupkis
Kleagles, was a suit in tort, for damages. Now, Dreama Beefalo-Charolais, the Bubonic Matron of Pig
Slop, Alabama, cant very well sue Miss Facelift 1999 for her advocacy: contributory negligence would be
fatal to her action. But everyone else in Pig Slop and throughout the piney purlieus of Mulefoot (our fair)
County has a pretty decent shot, probably in a class-action. Foreseeability, after all, is a defense available
only to persons who can show themselves reasonable, as Bubbles Brannigan likely cannot: any idiot with a
room-temperature IQ ought reasonably to have foreseen that advocating something this stupid would
have consequences of this sort. I dont say the good folk of Pig Slop and of Mulefoot County would win
(I dont say theyd lose, either: It Depends); but the very suit would serve a public function in bringing
this jackass idea further into disrepute, and if we know one thing from Snyder, its that no one suggested
the plaintiffs theory was untenable as a matter of law, and no Court trial or appellate regarded the
plaintiffs theory as so far-fetched to be sanctionable. Such a suit can generally at least survive summary
judgment and/or a 12(b)(6) motion.
Speech, with all that that implies, must almost always not be prosecuted and almost always must be
protected: the consequences are too grave to do otherwise, tending as Patrick Henry would say
towards tyranny. Action predicated upon these beliefs and notions, and on this speechifying, can be dealt
with, and ought to be, in two ways.
If a nutty belief translated into unlawful and threatening action is held by nations or peoples or creeds
or organized groups or non-state actors, their putting their speech and spoken beliefs into action may be
prosecuted by the State if it contravenes the law, or, if it rises to the appropriate threat level, dealt with
militarily. Certainly there are a few Neo-Nazis knocking about, and babbling and frothing like the rabid
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sons of rabid bitches they are: take that little bastard in South Carolina, the one who looks like Angela
Merkel (which may be what drove him nuts). (Ill bet you money, marbles, and chalk that his bug-eyed
obsession with mythical Black men taking all the white women derives from his seeing the mythical
white women as competition for his deepest, most shameful, unspoken desires: which is another good
reason to give him the chair rather than let him live out his fantasy of being a prison bitch.) But you dont
find enough Paleo-Nazis (in the non-dietary sense) to field a Zugtrupp. This notion that you cant kill an
idea is horseshit. You kill enough of the bastards who hold the notion, youve effectively killed the
notion.
Something Hamas and Fatah and Daesh and the Iranians and all might want to consider, there.... Its
our duty to protect the freedom of conscience and religion for those adhering to Islam as a religion (I like
Gervs observation that his only problem with loyal, British Pakistani Muslims is their habit of bowling
him out for duck); Islamism, as a political philosophy, can be held by whoever likes as long as they dont
act on it.
Small-timers whose idiot notions have led to punishable actions, should be tried and, law permitting,
fried. Mass action based on evil notions, when it does evil, should be bombed back into its native Stone
Age, and all its adherents with it.
Additionally, concurrently, or where these are not options under the Constitution, wrongful actions
torts, and I dont mean Sachers based on wrong-headed beliefs ought to be sued back into the Stone
Age. Boycott the adherents. Punish their advertising sponsors. Bankrupt their channels. Sue the sons of
bitches for damages. Make life so miserable for them that they keep their opinions if they like, but do not
act on them in unlawful ways.
When was the last time you got anything but a 404 from Gawker?
In doing this, I do not suggest and shall not countenance forcing anyone to abandon his beliefs.
Anyone: whether it be some wild-eyed leftist who signals her virtue by telling customers to go elsewhere if
they voted for Cheeto Jesus for president (its a secret ballot, folks: how the hell is the silly moo going to
know?), or some pious, Psalm-singing baker who refuses to be compelled to speak or act expressively in
support of a position he rejects. I know that we at Bapton will shut down rather than be compelled by the
State to publish books we reject; and if we fold because no one likes the ones we accept and publish, well,
thems the breaks: we sure as hell have no right to get the government to force people to buy them to keep
us afloat.
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But thats the point. Speech is free as against the government. Speech has consequences in the
marketplace because the other participants in the marketplace have the self-same rights. Notice I said Id
not tolerate forcing anyone to abandon his beliefs: force is a monopoly of the State, and it is the State
which must not, save in the rarest instances, impose upon beliefs and their expression by force. Boycotts,
by contrast, are fair game.
Under the true threat doctrine see Watts v US, 394 US 705, 89 S.Ct. 1399, 22 L.Ed.2 d 664 (1969),
and cases decided thereunder and Brandenburg and its progeny, saying that son of a bitch ought to be
shot is, quite properly, protected. Shooting the said son of a bitch, or organizing a firing squad, being
action rather than speech, is not. Its a brighter line than my young friend thinks, and specifically inciting
a shooting in a way that meets the Brandenburg test is an easy instance of where the line is.
Short of that line, howsabout we all stay in our own lanes, for the sake of our own freedom of speech?

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