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The First Amendment protects free speech even if it is as hurtful as signs at a Marine funeral proclaiming "Thank God for Dead Soldiers," the U.S. Supreme Court ruled on March 2, 2011. The Westboro Baptist Church celebrated the death of Lance Cpl. Matthew Snyder in Iraq with signs such as "God Hates You," along with antigay messages at his funeral in Maryland in 2006.

The late Marine's father sought damages for emotional distress. An appellate court had reversed the $5 million award granted by a district court, and the U.S. Supreme Court concurred with the appellate court's decision.  The Wall Street Journal notes that "Chief Justice Roberts nodded to the wrenching set of facts in the case, writing that 'the applicable legal term— 'emotional distress'—fails to capture fully the anguish Westboro's choice added to Mr. Snyder's already incalculable grief.'"  Crucially, however, the justices of the majority opinion would not fall to the temptation of acting on the emotion that naturally follows hearing of such harm.

Interestingly, on the same day as the American high court's decision, the designer John Galliano was being fired by Dior's CEO and investigated by the French police (for inciting racial hatred with anti-semitic statementsm, which is illegal in at least the French and German states of the EU) for having made anti-semitic insults to a couple with whom he was arguing late at night in a trendy bar (cafe) in Paris. There, the emotions got the best of both the designer and those who reacted to the video posted of his comments (albeit showing only a part of the argument). Perhaps a grieving father at his son's funeral reading signs that thank God for dead American soldiers can be likened to a Jewish couple at a bar hearing that they are lucky their grandparents or parents were not exterminated by the Nazis. It is difficult for the rest of us to know how either feels, or how to compare the pain.


In any case, that any human being would want to hurt another so much is truly a sad commentary on our species that otherwise vaunts itself as being in the image of God. Perhaps the question is what kind of God is being envisioned here. A vengence is mine, sayth the Lord sort, which Nietzsche condemns in his writings as already discredited on account of having such a sordid divine attribute as vengence?  The deed is done, according to Nietzsche.  So too, the pain has already been inflicted on the grieving parents and the Jewish couple.  The rest is merely mopping up. 

I contend that the impulsive reaction in Europe to the fashion designer's drunken anti-semetic slurs is inferior to the majority opinion of the American court in the Westboro case because the tolerance of reason is more in keeping with a free society than is vengence or retribution against a disliked opinion. Chief Justice Roberts emphasized that speech on public issues (of which gays in the military is one) "cannot be restricted simply because it is upsetting or arouses contempt," USA Today reports. Roberts pointed out that the jury at the district court level of the case had been told that Westboro could be held liable for the intentional infliction of emotional distresss if the picketing was "outrageous." The chief justice argues that that test is "highly malleable," which is to say, it can change according to what a given person happens to think is outrageous. An old man might think noice in an apartment hallway at midnight is outrageous while a few college students down the hall might simply assume that the party has begun. In such a case, outrageous may have a physiological determinant and thus be innately different depending on the person. Quoting the 1988 case of Histler Magazine v. Fallwell, Roberts said that liability cannot be imposed on "the basis of jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression." Rather, reason must trump passion in such matters. Regarding the Synder case, Roberts said that the small Topeka-based church's messages "may fall short of refined social or political commentary," but discussed "matters of public import," such as the nation's morality and gays in the military and thus are protected by the first amendment to the U.S. Constitution, which guarantees free speech.  A free society is only really free to the extent that we protect even the opinions of those we loath. Otherwise, society reduces to a primitive matter of excluding those we don't like. Such banal convenience is too decadent for a vibrant republic and society. Reason tells us this. The question is whether we have sufficient impulse-control to proffer the degree of tolerance that is requisite. So actually, the matter pivots on us--Americans and European generally--rather than on Westboro and Galliano. They can make us stronger in spite of themselves if we permit ourselves to rise to the occasion rather than satisfy our immediate gratification.  In the end, it is up to us, not them, what kind of societies we have.

In terms of federalism, the chief justice noted that states can regulate the time and place of the protests, and the church was already contesting some as too restrictive. As of the date of the court's decision, forty six states had enacted laws to minimize picketing near cemetaries during funerals. In terms of federalism, it might be that the states' respective Supreme Courts might have been the proper venue in interpreting the U.S. Constitution in such cases. Generally speaking, if there can be fifty different sets of regulations on protests, there can be fifty different decisions interpreting free speech. It would not be like fifty different foreign policies. As it is, even with fifty different regulations, the final decider is centralized in the U.S. Supreme Court.

Sources:
http://online.wsj.com/article/SB10001424052748703559604576176323629295598.html?KEYWORDS=first+amendment+protects
http://www.guardian.co.uk/lifeandstyle/2011/mar/04/john-galliano-dior-brand
Joan Biskupic and Kevin Johnson, "Westboro free-speech ruling has its limits," USA Today, March 3, 2011, p. 2A.

On the reaction to John Galliano in Europe, see the essay in this blog at: http://thewordenreport.blogspot.com/2011/03/on-march-1-2011-sidney-toledano-ceo-of.html

I once asked an official from a consulate office of the EU state of Britain about Turkey's possible accession into the EU as another state. He replied that it would be very disruptive—as much as if Mexico were to join the US as a state. The impact of another large state in union would be very significant, he observed. I was stunned that an official from a characteristically Euroskeptic state would make a reference that implies that the US and EU are on the same level. If his comparison is correct, then likening a Mexican state to a state in the US would evince a category mistake. That is to say, it would mean that a federal state could indeed apply to different scales of political organization, as Althusius had theorized in 1603.

Historically, Mexico was part of one colony of Spain called New Spain. For short-hand purposes, we could say that Mexico was a colony. So too was Virginia. While the latter joined a federative union with other colonies, and then sovereign (and then semi-sovereign) republics, Mexico remained as an independent state. At least by the beginning of the twenty-first century, a LAU (Latin American Union) had not formed. This does not mean, however, that Mexico is thereby a union in itself. Like many of the EU’s states, Mexico has provinces or regions, which in the American states would be intrastate regions or even counties. Some of the American states are sufficiently diverse that they would be good candidates for a federal system like that of Germany or Switzerland. Unfortunately, some of the intra-state officials in Europe and Latin America have been able to vaunt their status by calling themselves governors, as though their region were commensurate with France or Texas.

So in 2010 when all six Mexican border “governors” (six meaning that each is akin to a region say of Texas or Arizona and thus not equivalent with an American governor or a European head of state) wrote Gov. Jan Brewer of Arizona to inform her that they were boycotting the 28th annual conference between “governors” of the border “states” because of Arizona’s new law to beef up enforcement of US immigration law, she could well have replied, “Well, I should really be meeting with your head of state anyway.” Just because the semi-sovereign American states do much in common through their federation does not mean that the states have somehow shrunk, such that France, a state in the EU, is now somehow equivalent to the US. That would be like saying that Virginia and the EU are equivalent. Europeans would be very offended. Yet Americans turn a blind eye to the convenient category mistakes that are made by others—and even ourselves—at our own expense.

Source: http://www.nytimes.com/2010/07/07/us/07governors.html?_r=1

On his first visit to the Turkish capital since becoming prime minister in May, 2010, David Cameron of the EU state of Britain likened the state of France’s opposition to Turkey’s bid join the EU to the French veto of Britain’s bid to become part of the EEC in the 1960s. I contend that his is a faulty comparison. Britian and Turkey do not occupy the same situs with respect to Europe. Notwithstanding the claim by some that not being on the contenent renders the British non-Europeans, Britain is in Europe. British culture is European. In contrast, only ten percent of Turkey is on the continent, and the Turkish culture is dissimilar to that in Europe.

Cameron also pointed to Turkey’s role in NATO, particularly with respect to the alliance's role in Afghanistan.  However, Turkey made it clear that it will not join EU sanctions against Iran over its nuclear program. Turkey does not have the same interests as do the states in Europe. For European leaders to essentially use Turkey as a state in order to have more influence in the Arab world is problematic. First, the Turks would not necessarily be welcomed by the Arabs as intermediaries, given the history and perceptions between the two groups. Secondly, the accession could force the EU to take an active role in resolving the Kurd issue in eastern Turkey (and northern Iraq). Rather than giving the Europeans more influence in the Middle East, having Turkey as a state could put the EU in a mire it can ill-afford, given its own challences within the current EU. In short, European strategic over-reaching could compromise what has been accomplished thus far in terms of European integration.


To add a very large Middle Eastern state to a union of European states would compromise, and perhaps buckle, the EU.  Already, the EU has struggled to make changes internally to accommodate its expansion to the east.  Turkey’s very different culture and interests could render the EU impotent, given the amount of power still being exercised by the governments of its states. Rather than use the EU to gain leverage in the Middle East, I recommend that Europeans solidify their “ever closer union” so it will be able to withstand the inevitable political storms in Europe.

As Britain is one of the more “euroskeptic” states in the EU, it is possible that Cameron made his statements in the hope that expanding the EU beyond Europe would effectively relegate the union into an international organization. As the EU stands now, it has an executive branch, a legislature (a Parliament and a Senate, or Council), and a supreme court (the ECJ).  From a euroskeptic standpoint, the EU’s government simply does not exist.  Admitting Turkey (and other non-European states) would make the EU more international and less of a federal union of governance. That is to say, the move would undo the EU.

To be sure, Britain is just one of 27 states in the EU. With regard to Turkey’s accession as the 28th state, 35 “chapter,” or subject areas, would need to be agreed on. As of July, 2010, only 13 had been opened and only one — research and development — had been provisionally concluded. Most of the rest were blocked — five by France — leaving the realistic prospect that only a further three could still be opened.

Source: http://www.nytimes.com/2010/07/28/world/europe/28iht-britain.html?_r=1&hp

Thousands of Romania’s Roma, also known as Gypsies, have been heading for the relative wealth of Western Europe, and setting off a clash within the European Union over just how open its “open borders” are. Migration within the 27 nations of the European Union has become a combustible issue during the economic downturn. The union’s latest expansion, which brought in the relatively poor nations of Romania and Bulgaria in 2007, has renewed concern that the poor, traveling far from home in search of work, will become a burden on wealthier countries. The migration of the Roma is also raising questions about the obligations of Romania and Bulgaria to fulfill promises they made when they joined the union. Romania, for instance, mapped out a strategy for helping the Roma, but financed little of it.

Nicolas Sarkozy of the state of France has demanded that the Romanian government do more to aid the Roma at home. He vowed to keep dismantling immigrant camps and angrily rejected complaints from EU Commission officials that the French authorities were illegally singling out Roma for deportation. Mr. Sarkozy has tried to revive his support on the political right by deporting thousands of them, offering 300 euros, about $392, to those who go home voluntarily, and bulldozing their encampments. The European Commission has threatened legal action against Paris over the deportation, calling it disgraceful and illegal.

This case illustrates the problem the EU has in enforcing compliance of the terms of the accession talks of new states. In addition, this case puts the power relation between the EU and its state governments under palpable pressure. Lastly, the case showcases the difficulty involved in integrating Europe.  More than a common market, the EU states have open borders.  This appreciably decreases the power, and indeed sovereignty, of the state governments such as France and Germany—governments that were hitherto used to being in the driver’s seat.  So it will be interesting to see whether Sarkozy bows to the EU government or the ECJ (the EU’s Supreme Court) when he is under what must be strong domestic pressure to get rid of the Roma.

Relative to Arizona’s new immigration law, France’s deportation of a race of people is radical. Yet whereas in the US France’s policy would produce a vitriolic response from the media and the left, in the EU it is largely the EU government that is objecting. This difference points to a difference between American and European culture.  Perhaps due to the relatively recent history of racial slavery in some of the American states, there is more sensitivity to race in the US—yet there is also racism in the US. Perhaps the racism in the US is one on one now, whereas the racism in the EU is in some state policies.

Source: http://www.nytimes.com/2010/09/17/world/europe/17roma.html?pagewanted=1&_r=1&hp