There’s nothing like a comfortable and familiar phrase — “free
speech,” say — to fuzz up useful discussion of just what meaning
the phrase conveys. Let’s see — “free.” We’re for that, certainly.
“Speech” — that, too; lots and lots of it. Put ‘em together and
you’ve got virtually a creed, at least in the manner the 21st
century has adopted with regard to the effusion of viewpoint and
opinion. In Cole Porter’s clever formulation, anything goes.
Practically anything, anyway, and if we live long enough the
“practically” part may go as well.
Small episodes remind us now and then of the arc we continue as
a society to trace — from discourse as a means of discovery, to
disgust as a reaction to the common proceedings of life.
As so often happens, these cultural developments play out amid
the majestic hallways and columns of the U.S. Supreme Court
building. There, in early March, it was decided that a traveling
band of (so-called) Baptists from Kansas have the constitutional
right to stand at least on the outskirts of a military funeral and
insult the dead soldier, the dead soldier’s family, and the honor
and worth of the country for which he died. Because, you know,
that’s what free speech requires — toleration of the offensive and
antisocial.
As maybe is the case sometimes. Farther and farther,
nonetheless, modern culture stretches the requirement for
toleration, as if toleration itself had somehow taken over the
mediating role of free speech in a free society, asking of
us…what? Intelligence? Nope. Decency? Not that either.
Generosity, kindness, public spirit? I pause for laughter.
Toleration, as lazy substitute for inquiry, is in the driver’s
seat. And it’s a pity.
Let’s go back to the Baptists and the 8-1 Supreme Court decision
that stirred astonishment, animosity, and admiration, not in
necessarily equal proportions. The traveling sideshow based at
Westboro Baptist Church of Topeka — which I have seen in action —
exists for no discernible purpose other than that of making public
commotions with picket signs and mendacious claims. “God Hates
Fags” is one of the sideshow’s favorite anti-gay exhortations —
generally displayed at military funerals. “Thank God for Dead
Soldiers” is another of the Westborians’ bons mots.
You don’t get the connection? The Westborians see our soldiers
as casualties in a doomed nation’s hopeless fight for undeserved
survival. The time I saw them more than a decade ago, they were
picketing the Episcopal General Convention. Well, that’s often a
good idea. What I didn’t like about this particular exercise —
speaking as an Episcopalian — was the picketers’ imperviousness to
conversation with Episcopalians who weren’t supportive of gay
rights either, and considered the tone and tenor of the
demonstration hurtful to the larger cause of morality.
As it happened, the Westborians were just finding their pitch.
Over time they became really obnoxious, to the point that the
father of a soldier killed in Iraq sued them for mental distress,
owing to their bad conduct on the outskirts of his son’s funeral.
He won a large award at the district court level. This award the
high court reversed. Wrote Chief Justice John Roberts for the
majority: “To silence a fringe messenger because of the
distastefulness [“distastefulness” — that’s a nice one in the
Westboro case!] of the message is antithetical to the First
Amendment’s most basic precepts.” Er, um — precepts such as the
ruder we get, the better we live? I think that wouldn’t misstate
the matter by much. Justice Samuel Alito won much praise with a
forceful if lonely dissent that denied the First Amendment was a
“license for the vicious verbal assault that occurred in this
case.”
THE WESTBORO DECISION as constitutional law will get a good
going-over for decades by scholars and pundits as society continues
to grapple with the legalities involved in the display of
contradictory ideas. A larger problem looms over us, like an
eggplant-purple thundercloud. It is the notion that in our time
free speech has come to…well, this: the idea that you don’t have
to have an idea; a shtick or a stunt will do. Step right up, show
us, entertain us, yell at us, and you’re right up there with John
Milton, Tom Paine, John Dickinson, Patrick Henry, &c.,
&c.
The sublime notion of speech as agent of progress and enlarger
of human capacities is down the drain, along with the Clorox and
potato peels. The point takes a little hammering down because we
grow unfortunately accustomed to the stunt as rhetorically
equivalent to the reasoned assertion of opinion and viewpoint. All
this, with the courts’ assent and approval. The whole matter,
nevertheless, can’t be folded neatly and laid at the doorstep of
the judiciary.
The debasement of speech, as experienced in our time, is a
collaborative project. First comes the stunt, then the impassioned
claims of First Amendment privilege, then the mutters of
intellectual approval — academics, editorial writers, and so forth
chiming in with their solemn acquiescences in the evolving ways of
the democratic spirit. A Supreme Court decision upholding the
freedom to claim during a soldier’s burial that God hates dead
soldiers is the capstone on the whole dispiriting process. We might
wonder with some gnawing doubt whether John Milton or John
Dickinson would have a chance to be heard today over the droning
malice of the Westboro Baptists.
Milton, in the Areopagitica, exalted free speech as a
bulwark of Truth. He was for letting it all hang out. Let us have
no licensed printing, he argued in the face of his own folk, the
Puritans. “[W]ho kills a man kills a reasonable creature, God’s
image; but he who destroys a good book, destroys reason itself…”
He wanted the English to have it out — on paper, everybody saying
what he would against everybody else (with no guarantees that
treason or calumny wouldn’t bring down condign punishment).
“…[W]ho ever knew truth put to the worse, in a free and open
encounter.”
It was speech he was talking about, not theater. Theater would
come centuries afterward. The Founding Fathers certainly meant what
Thomas Paine meant — even those who might have seen him as a jerk
— when they framed and ratified the First Amendment. The biggest
rabble-rouser of them all, Paine roused with words rather than
spectacles. It cannot have occurred to him that, by way of
exhortation, he might have burned a few flags and won praise for
his commitment to ideas. Words were what he cared about. For the
words he had in mind he needed freedom. Freedom and speech in the
classic sense went together. He would have looked brainless,
staging a stunt or thumbing his nose.
The 20th century was pretty much of Paine’s viewpoint — until
halfway finished. The 1960s disordered free speech understandings,
as they disordered pretty much everything else. Readers of a
certain age will recall the juvenilization of protest and something
called free speech that really wasn’t speech at all: more like mere
taunting, at least until the courts pronounced on it. The case of
Tinker v. Des Moines Independent Community School District
was to my thinking central in the transitional process. Three Iowa
high school students in 1965 had worn black armbands to protest the
Vietnam war. Down upon them, and upon any potential imitators, came
the school district, declaring a policy of no armbands in a
building consecrated supposedly to teaching and learning. Oh,
yeah?, said the Iowa Civil Liberties Union, in behalf of the
families of these hyper-committed students. The matter came at last
before the Warren Court, which held, 7-2, that students and
teachers don’t “shed their freedom of speech or expression at the
schoolhouse gate.”
Not that Des Moines schools had “gates,” you understand; the
real point was the theoretical necessity of letting students vent
to their hearts’ content to the annoyance or disadvantage of
students with other things rightly on their minds. An inspiration
had seized the learned justices. In vain did Mr. Justice Hugo
Black, no one’s idea of a surly right-winger, note in dissent that
“if the time has come when pupils of state-supported schools,
kindergartens, grammar schools, or high schools, can defy and flout
orders of school officials to keep their minds on their own
schoolwork, it is the beginning of a new revolutionary era of
permissiveness fostered by the judiciary.”
It proved a pretty fair prophecy. Not that the high court, in
the Des Moines decision, had set its collective face like
flint against hindrances to anything remotely understandable as
speech. What the court had done, likelier, was excite in excitable
minds the notion of free speech as fused forever with personal
expression. Milton had meant no such thing. He posited an ongoing
search for Truth. The search parties didn’t so much fling a
viewpoint in others’ faces as offer reasons for the adoption of
that viewpoint. Outshouting another party was proof of nothing save
lung power.
NONETHELESS, in 1969, a shouting contest had already commenced:
the forces of “relevance” against the blinkered defenders of
institutions and ideas too long (as the protesters saw it)
established. A sit-in, a love-in, a shout-in against “an immoral
war” or “fascist pig Amerika” was the way to go now. All right, it
wasn’t Areopagitica, and so what? It was real, it was
authentic, and the Constitution had to make room for it — all
right? Louder and louder grew the volume of “discourse.” Not in
conspiracy with the federal courts, which hadn’t gone completely
nuts, but rather in consequence of growing indifference to older
beliefs; e.g., that manners matter and that conquest by force isn’t
conquest at all.
Not every social restraint collapsed under the battering. The
debasement of free speech continued apace, even so. In 1989, 20
years after Tinker v. Des Moines, the high court affirmed
(Texas v. Johnson) the free speech right to pour kerosene
on an American flag, then ignite it, in violation of state law.
This was because the government “cannot carve out a symbol of unity
and prescribe a set of approved messages to be associated with that
symbol…” Mr. Gregory Lee Johnson had something to tell us, and
we, the people, had to let him tell it, just as we now have to
allow the clamorous Baptists of Westboro their say in more or less
their chosen manner.
The striking feature of the Westboro decision was the
acquiescence of all the court conservatives — Sam Alito excepted
— in the new understandings of “speech.” That very acquiescence
might be taken as showing the depth to which the modes of the 1960s
have penetrated current understandings of what it takes to live
together.
Commonsense objections to crudity and indecency as forms of
expression no longer hold sway. The too-famous “f’ word has become
pretty much an entertainment industry staple — allowed because
some (too many?) think for now it’s cool. Public nudity is defended
on free speech grounds. Columbia University students earlier this
year booed and heckled a nine-times wounded Iraq war veteran
appearing in behalf of reopening the university to the Reserve
Officers Training program. Way to go, guys — show your love of
freedom by smothering someone else’s right to it. It seems to
happen regularly on campuses these days.
The point isn’t — hear me — that the federal courts nowadays
rubber-stamp every conceivable species of “expression.” The point
is that you can’t count on the courts anymore for generous
deference to ideals that held pretty much together prior to the
Great Disintegration of the 1960s. It’s a shame. We did pretty well
with the norms of intelligence and civility that for the most part
guided discourse. The meaner, uglier mood of modern America — deny
its reality who will — can get only meaner and uglier with the
kind of encouragement the court gives in the Westboro case. Makes
you want to burn a flag or something.
