Free speech: Westboro church Supreme Court case tests First Amendment
A Supreme Court case challenging the Westboro Baptist Church anti-gay protests will test the limits of free speech, with First Amendment implications for other forms of expression such as Quran burning and racist demonstrations.
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"I suspect neither Phelps nor Snyder will change their point of view no matter what happens in the case," says Christina Wells, a law professor and First Amendment scholar at the University of Missouri-Columbia School of Law.Skip to next paragraph
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"Somebody is going to be unhappy," she says. "But the debate [surrounding the case] hopefully will foster understanding of why we have the First Amendment we do."
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The essence of free speech in America is not that you can say whatever you want. There is no constitutional right to libel someone, or to produce and distribute child pornography, or to use "fighting words" that are sure to provoke fisticuffs.
In the most quoted example, there is no constitutional right to falsely yell "Fire!" in a crowded theater. Government regulation of that speech is appropriate because of the predictable outcome of the panic.
On the other hand, the First Amendment's free speech clause is intended to be broadly permissive. Mere offense is not enough to trigger government censorship.
"The problem is, once you start prohibiting speech that is offensive there is no limit to how far you can extend the concept of offensiveness," says Richard Parker, professor emeritus of communication at Northern Arizona University in Flagstaff and editor of the 2003 book "Free Speech on Trial."
This is an issue that arises on the vast majority of American college campuses through the proliferation and enforcement of speech codes designed to ban offensive speech on campus.
Free speech advocates say it is exactly the wrong lesson for young college students training to become productive citizens.
Will Creeley, a lawyer with the Foundation for Individual Rights in Education, says that the vast majority of colleges and universities in the country maintain some version of a speech code. FIRE has found only 12 schools that have no speech code. Among the no-code schools are Dartmouth College, the University of Pennsylvania, and William & Mary.
"Over 70 percent of [public and private schools monitored by FIRE] maintain restrictions on speech that would not stand if challenged in court based on relevant precedents," estimates Mr. Creeley. Rather than teaching the fundamentals of free speech and tolerance of offensive messages, he says, most schools are telling students they have a responsibility to stop hate speech, to engage in censorship.
"We have a saying here, if you go four years to a university or college and you are not once offended, you should ask for your money back," he says. "We feel there is inherent value in having your most deeply held beliefs tested."
Professor Wells, at the University of Missouri, agrees. She says universities are risk-averse and believe speech codes are a magic bullet: "Having a First Amendment is much harder than you think. We tend to view the First Amendment as a rights-giving instrument. But we really ought to see the First Amendment as providing us the space to have these really important and difficult conversations."