Only ineffective speech should be protected, according to the scribes at major newspapers reviewing the decision in Snyder v. Phelps, which allows the Wesboro Baptist Church to continue harrassing mourners attending funerals of veterans.
While the New York Times ripped the Citizens United decision as thrusting “politics back to the robber-baron era of the 19th century,” the Gray Lady applauded the Westboro Baptist decision because “even deeply flawed ideas must be defended because they are part of the public debate on which this country depends.” Even the Washington Post praised the decision in Snyder v. Phelps, saying that “the beauty of the First Amendment is often most vibrantly expressed under the ugliest of circumstances,” after having blasted Citizens United as opening “a dangerous pathway for corporations to spend money in direct support of — or in opposition to — candidates for federal office.”
So what’s the difference between the two? One form of speech makes a difference, and the other is just annoying. Paul Sherman at Institute for Justice (which filed briefs arguing in favor of Citizens United) exposes the contrast:
So the New York Times and the Washington Post have it wrong. The beauty of the First Amendment is not that it leads us to tolerate the insignificant antics of the Fred Phelpses of the world. Rather, it is that the First Amendment permits us—and commits us—to resolve even our most consequential disagreements peacefully, with words, not force.
Defending speech when that speech doesn’t matter isn’t bravery. It’s posturing.
(Update: I wrote that IJ argued and won Citizens United, but corrected it to say they filed briefs. Great briefs. But didn’t argue it.)
