Think Again by Stanley Fish

Author:Stanley Fish [Fish, Stanley]
Language: eng
Format: epub
Published: 2015-12-14T16:00:00+00:00

1. Dennis v. United States, 341 US 494 (1951).

2. West Virginia State Board of Education v. Barnette, 319 US 624 (1943).

5.9

Sticks and Stones

MARCH 7, 2011

In his new book, Philosopher Kings? The Adjudication of Conflicting Human Rights and Social Values,1 law professor George C. Christie notes that with respect to the conflict between privacy rights and free expression rights, the United States and Europe seem to be going in different directions. European jurists will try, as one court put it, to strike “a fair balance … between the competing interests of the individual and of the community as a whole”; American courts are likely to come down strongly in favor of the individual’s right to free expression even when an expressive activity arguably pollutes the community’s conversational space or is intentionally hurtful to other individuals.

At the end of his book, Christie wonders how the Supreme Court will decide Snyder v. Phelps (March 2, 2011), a cause of action brought by the father of a dead soldier at whose funeral members of the militantly antigay Westboro Baptist Church waved signs saying (among other things), “Thank God for Dead Soldiers” and “You’re Going to Hell.” Lance Corporal Matthew Snyder’s father alleged an injury under the tort category of the intentional infliction of emotional distress. Christie declares that he would be “disappointed if the Court were to allow recovery for [this] admittedly grossly tasteless and insensitive demonstration.”

The court did not disappoint him, for, as everyone now knows, it held for Westboro and against Snyder by a vote of 8–1. Justice Samuel Alito was the lone dissenter. He was also the lone dissenter in a case decided a year ago (United States v. Stevens, 2010) when the court struck down a statute criminalizing the sale of videos depicting kittens being crushed to death by the high-heeled “spike” shoes of a dominatrix (see more on this case in 5.8, “The First Amendment and Kittens”). The majority opinion in both cases was written by Chief Justice John Roberts, and the result in Snyder was predictable, given Roberts’s rejection in Stevens of “any balancing of relative social costs and benefits” when it comes to free expression rights: they trump.

A balancing of costs and benefits in the style of European courts would have involved asking questions like: Was the pain caused incidental to the production of speech—was the primary purpose to communicate an idea that just happened to be hurtful to some potential hearers—or was it the very point of the speech to bring the pain about? Was the Snyder family just caught up in a general scattershot diatribe against an America too friendly to gays or was the family the target of the diatribe, despite the fact that the young soldier had not himself been gay? If a lower court’s award of monetary damages had been sustained, would the Westboro Church’s message have been silenced or would it still have been able to proclaim its message in a thousand venues, just not in the venue of a private

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