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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It was Justice Oliver Wendell Holmes who in 1919 first gave voice to the task of separating speech deserving protection from dangerous speech that did not.Skip to next paragraph
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"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent," Justice Holmes wrote. "It is a question of proximity and degree."
This "clear and present danger" test was used for decades to uphold the arrest of perceived government opponents and suspected communists, who – in retrospect – never posed much of a threat to the nation. Over time, the standard evolved, beefing up free speech protections. The evolution eventually led to the 1969 Brandenburg landmark ruling protecting the advocacy of unlawful action.
Behind it all is a conviction expressed by various members of the Supreme Court through the years that what is being protected in the First Amendment's free speech clause is the free flow of ideas – the lifeblood of a democracy. It is the principle that the best way to counter a stupid idea, a hateful idea, a dangerous idea, is through the expression of better ideas.
Supreme Court Justice Louis Brandeis identified this dynamic in a 1927 case.
"To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion," Justice Brandeis wrote.
"If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education," he said, "the remedy to be applied is more speech, not enforced silence."
That's what happened in response to Jones's threat to burn the Quran. Muslims expressed outrage. Jones received more than a hundred death threats. But something else happened. Many others spoke out against burning the Quran, including President Obama, Gen. David Petraeus, and a number of religious leaders. Defense Secretary Robert Gates made a personal appeal to Jones in a telephone call. This outpouring of ideas fostered an international debate and an opportunity for education.
"That is the greatness of freedom of speech," says Goldberger, the law professor and former lawyer to a Nazi who wanted to march through Skokie. "It is the power of reason to persuade."
He adds: "What better lesson does the First Amendment teach us all than that the freest democracy is one where there is a give and take, where people listen and are capable – based on what they learn – to modify their course of conduct."
It is perhaps a forgotten footnote of history that although Frank Collin and his fellow Nazis won the right to march through Skokie, they never did.