Book Burning and Gay Bashing: The continuing First Amendment struggles in the United States.

In the recent decision of Snyder v Phelps the Supreme Court of the United States of America, acting in an 8 – 1 majority has affirmed the right to free speech guaranteed under the First Amendment of the US Constitution.  The case centred on the ever controversial presence of the Westbro Baptist Church at the funerals of military personnel killed in active service or combat.   In March 2006 the funeral of Lance Corporal Matthew Snyder, a soldier killed while on service in Iraq became the focus of the Church’s protestations against the willingness of the United States acceptance of homosexuality.  The church displayed signs such as “God Hates Fags” and “Thank God for Dead soldiers” close to where the funeral service was taking place.  Mr Snyder’s father sued the Westbro Baptist church claiming that his personal privacy had been impeded and the actions of the church members’ had caused him lasting emotional injury and distress.   The claim of Mr Snyder enjoyed success in the lower Courts of first instance with the 4^th Circuit district court awarding $11 million in compensation, which was reduced to $5 million.  Eventually, the decision was overturned in the court of appeal on first amendment grounds.

In spite of the ideologically diverse composition of the Court, 8 out of the 9 justices reached the same conclusion (albeit if they differed in their reasons for reaching such conclusions) in deciding a First Amendment case.  In many ways this not only underlines the value which members of the higher judiciary place on freedom of expression in the United States, but it also reflects  the Supreme Court’s current trajectory when deciding upon freedom of expression cases.  Writing for the majority Justice Roberts stated that “As a nation we have chosen … to protect even hurtful speech on public issues to ensure that we do not stifle public debate”.  The lone dissent was issued by Justice Alito who suggested that the Supreme Court’s majority decision in essence meant that the First Amendment would now protect the respondent’s right to brutalise. 

More recently, freedom of speech issues have taken a centre stage in the United States after it was reported that Florida pastor Terry Jones had publicly burned a copy of the Qu’ran after putting the holy book ‘on trial’.  This is said to have been the action which lead to mass protest across Afghanistan, which ultimately resulted in the deaths of over 21 people across the nation including 10 United Nations Staff.  While many politicians condemned the actions of Pastor Terry Jones, many suggested that he was merely engaging with his right to freely express his opinion.   The American Civil Liberties Union suggested that even though the burning of a Qu’ran is ‘ugly’, there is still a right to do it.  

The Supreme Court appears to be consistent in how it rules on freedom of speech cases. As has already been noted, even the ideological diversity of the court could not prevent a massive convergence of opinion when it came to protecting this right. However it would appear that the United States is finding itself in a fairly invidious position with regard to its interpretation of the constitutional protection on free speech.  While the Supreme Court’s decisions would indicate a quasi-romanticist affiliation with the First Amendment, there is no doubt that many people out there will be asking when do you cross the line from free speech, a legitimate and noble constitutional objective, into hate speech with all of its ability to muster up intolerance, fanaticism and upset.

BY MICHEÁL MURPHY.

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