Two separate news stories today reflect all that is right about the US (or all that is wrong about the US, I guess, depending on your point of view). The first one involved the radically Anti-Gay, Anti-Catholic, Anti-Everything Westboro Baptist Church. They were sued by the parents of Matthew Shepard whose funeral they protested with signs saying “God Hates Fags” and “Thank God for Dead Soldiers” It seems they believe that God is punishing America for its loose morals by killing our soldiers in Iraq and Afghanistan. When a State court awarded millions of dollars to Mr. Sheppard’s family, the Church appealed to the US Supreme Court. As predicted in an earlier post about the case right here on Courtroom Strategy, (https://courtroomstrategy.com/2010/10/testing-the-limits-of-the-first-amendment/) The Supremes reversed the lower court and upheld the Church’s right to protest under the First Amendment. The 8-1 decision was really just the latest in a line of court rulings that, as Chief Justice John Roberts said in his opinion for the court, protects “even hurtful speech on public issues to ensure that we do not stifle public debate.” The lone dissenter Justice Alito stated “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.” Yes Judge, it actually is exactly that. A license for people to say what they feel and think without fear of litigation and punishment. That the speech was hurtful and had a real and visceral impact on the Sheppard family cannot be denied. That it is reprehensible and should be countered by other methods, like counter-protests and loud music to drown out the shouts, is not in serious dispute. But neither should it be in dispute that the Church had the right to stand on a public street and hold up their signs and chant their slogans. It is precisely impactful speech that needs to be protected. In this case, the minority opinion is horrible, but many times that group of five or six people saying something contrary to society’s norms is trying to effectuate change. They need to be protected and to do that consistently the Constitution must be applied in a content-blind manner. Justice Roberts put it this way: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and – as it did here – inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.” To summarize it better for the younger readers, let me quote from that great scholar Eminem: “I guess words are a mothafucka they can be great Or they can degrade, or even worse they can teach hate.”
Now we sail across the ocean to that bastion of civilization, Le France, and we read that Dior fashion designer John Galliano was arrested -ARRESTED- for making Anti-Semitic remarks. In a video that went viral a few days ago, the world-renown flamboyant designer is seen arguing with a couple (presumably Jewish). He then gets louder and shouts at them: “I love Hitler,” and, “People like you would be dead. Your mothers, your forefathers, would all be fucking gassed.” Horrible, yes, repulsive certainly. Was Natalie Portman right to fire him as her stylist? Sure. But he was arrested and is facing 6 months in jail!? Sorry that’s just insane. Can you imagine if that was the law in this country? Mel Gibson would be serving a life sentence! Wait, maybe they’re onto something over there. But despite the occasional positive results for such a weak right to free speech, this global difference has a real impact on speech even here at home. American authors are routinely dragged into court in Europe for defamation suits for books that merely express an opinion. Its called “libel tourism” where folks file suit in England or France even though neither the author nor the subject live in those countries but merely because the book is distributed or available there. It has resulted in successful awards for damages that have caused books to come off of shelves.
The story took look at is that of Rachel Ehrenfeld, author of Funding Evil; How Terrorism is Financed – and How to Stop It, a book she published on the late Saudi billionaire, Khalid Bin Mahfouz. He sued her for libel in London in 2005. By the time he passed away in Saudi Arabia last summer, he had more than more than 40 publishers and authors publish apologies and retractions (part of the British libel law), then dedicated a Web site to his “victories.” The stories in question concerned the alleged role he and others played in funding terrorism. No British court ever aired the merits of the allegations against bin Mahfouz. All he had to do was threaten to sue to deter the publication. Eventually, Ehrenfeld was ordered to pay more than $250,000 in damages and legal fees to Bin Mahfouz as well as apologize and destroy copies of books. She sought protection from a federal court in New York, but the Court of Appeals ruled it lacked jurisdiction to protect Americans on U.S. soil from foreign suits. Shortly after, the New York legislature passed the Libel Terrorism Protection Act (known as Rachel’s Law) in May 2008. It protect American authors from foreign lawsuits that infringe on First Amendment rights as guaranteed by the U.S. Constitution, and gives New York residents the ability to have their day in court by allowing them to sue those who sue the authors here in NY. The law in New York and similar ones in Illinois, California, and Florida provide some protection to writers. (A national bill has failed to pass into law several times). Many people don’t realize that even in allegedly open, democratic countries abroad like England and France, you cannot freely publish books, articles or even speak your mind without concern of a lawsuit.
These cases also send a message about the importance of the freedoms guaranteed by the Constitution and the need for the American public to understand that our laws need to be applied equally to all, even those we don’t particularly like. And to appreciate our right to speak repulsively.