On March 2, the U.S. Supreme Court, in an 8-1 opinion written by Chief Justice John Roberts, handed down its in Snyder v. Phelps, upholding the right of the Westboro Baptist Church to stage vile protests of military funerals. The New York Times, in an editorial titled “Even Hurtful Speech,” the opinion for its “incisive language,” and its recognition that “even deeply flawed ideas must be defended because they are part of the public debate on which this country depends.” The Washington Post, in an editorial titled “The right to even ugly free speech,” shared this , noting, “The beauty of the First Amendment is often most vibrantly expressed under the ugliest of circumstances.”
While these papers pat themselves on the back for their fidelity to the First Amendment, let’s keep something in mind: These excoriated the Supreme Court when it that Congress lacked the power to ban a political documentary produced with corporate money. What gives?
The answer is that the Westboro Baptist Church’s speech, while vile, is also totally inconsequential. Nobody is going to be persuaded by their inarticulate grunts of rage. And it is relatively easy to tolerate speech that you do not believe will persuade anyone. What is considerably harder is to stand up for speech that is persuasive, speech that might actually cause people to adopt beliefs or enact policies that you disagree with.
So the New York Times and the Washington Post have it wrong. The beauty of the First Amendment is not that it leads us to tolerate the insignificant antics of the Fred Phelpses of the world. Rather, it is that the First Amendment permits us—and commits us—to resolve even our most consequential disagreements peacefully, with words, not force.
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