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.