Not Every Situation Is a Vehicle for Personal Expression
In celebrating activism, we are losing the notion of "picking your spots"
One of the more interesting constitutional cases of the last couple of decades was Snyder v. Phelps. The Rev. Fred Phelps’ Westboro Baptist Church was virulently homophobic, as are many conservative evangelical denominations. But Rev. Phelps was different. Rather than, for instance, merely sending out homophobic literature, or producing a TV show expressing homophobic beliefs, Westboro decided to picket military funerals. You heard me right. They showed up at military funerals with signs that said “God Hates F**s” (they spelled out the word). Why military funerals? Because they felt that the military’s “Don’t Ask Don’t Tell” policy (which itself imposed significant restrictions on gays and lesbians in military service) was overly tolerant of homosexuality.
Westboro won its First Amendment case. The government can’t censor your speech because it does not like your message. That is a truly important principle
And yet, what the Supreme Court did not pass on, which is to me the most important issue in the controversy, is “why do these people think its appropriate to picket a funeral of a dead servicemember?”. Sure, they had a right to- I don’t contest that and in some sense I am thankful they do. But I would think that reasonable people- and even some generally unreasonable ones!- would agree that it’s terrible to picket that event. Indeed, as I noted, there are many churches with similar viewpoints on homosexuality who nonetheless do not protest at military funerals and would not think to do so.
The point is, just because something’s protected by the First Amendment does not mean you should do it. We all know this. Using the n-word is protected by the First Amendment; people nonetheless should not do it. Distributing “animal snuff” videos is protected by a Supreme Court case. I wouldn’t do it.
But I am concerned that a lot of people have lost this thread. For instance, right now, articles are being written criticizing the Olympics for having rules against protests on the medal stand. Yes, I know, John Carlos and Tommie Smith. And guess what- on the merits of their protest, Carlos and Smith were right! Societal conditions for Black Americans in 1968 were awful.
But the Olympics did not send Smith and Carlos home because of racism- indeed, the white Australian Peter Norman, who protested alongside Carlos and Smith, and at the time one of the fastest sprinters in history, was also blacklisted from Olympic sports as a result of his stand. They were sent home because the Olympics are an international diplomatic event and dependent on protocol. A rule that allows a Black American to protest on the medal stand also allows a Taiwanese athlete to kneel when the Chinese national anthem is played- and it’s perfectly obvious that the Olympic Games could not survive that sort of incident.
The basic point here is that my comment on Snyder v. Phelps applies to many, many human activities. Not only should you not protest at military funerals, but you shouldn’t protest at diplomatic events where you are a representative of your country (and that includes Olympic medal ceremonies), a lawyer shouldn’t wear a protest ribbon during a jury trial that might offend jurors and harm her client, news reporters shouldn’t be attending demonstrations as participants (because it might interfere with the privileges of reporters at such events to avoid arrest), etc. There are innumerable situations where a person’s right to self expression, while perhaps constitutionally protected, is simply not the paramount value.
I can’t conclude this without pointing out what’s happening on the political right, where this same sort of individualism is contributing to the anti-vax and anti-mask sentiment. COVID safety protocols are also not the venue for your personal expression. If you don’t like the government and don’t like scientists, by all means speak out against such things, but doing things that deliberately increase the risk that someone else can get a deadly virus is not a responsible exercise of free expression; it’s pure selfishness.
The right of free speech implies nothing about our responsibility towards each other. The law entrusts us to choose the right times and places to speak out. Most of us aren’t nearly as bad as Fred Phelps at the funerals, but that doesn’t mean that we are making good choices.