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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

On March 1, 2011, Sidney Toledano, CEO of the French fashion house Christian Dior, wrote that he was dismissing its chief designer, John Galliano, after the surfacing of a video that showed "his anti-Semitic outbursts at a Paris bar." The word choice of outbursts by The New York Times is interesting, for the actual video shows him in a rather mellow, notably intoxicated, "well you know" mood. The article's writer admits that the designer had used "a slurred voice." Galliano was telling a Jewish couple that they should feel lucky that their ancestors were not killed by the Nazis because so many did not survive. He said ‘‘people like you would be dead,’’ and  ‘‘your mothers, your forefathers’’ could have all be ‘‘gassed.’’ Although applying a rational criterion to a drunk man, I wonder in what sense he meant ‘‘I love Hitler.’’ Considering that Galliano is gay and Hitler sent homosexuals to concentration camps, I suspect that Galliano was lying simply to hurt the couple in what was undoubtedly a back-and-forth in a verbal fight.  Indeed, it takes two to tangle, and the rest of us might do well to recognize the difficulty in interpreting a snipet without having observed the entire contest.

While hurtful and inappropriate even in the midst of a disagreement, Galliano's aversarial comments hardly constituted an outburst, as if he had lost control of himself and thrown his bar table against a wall. Why, one might ask, would a journalist at a major New York paper use a word that (deliberately?) overstates the case against the designer?  Perhaps even in a free society, there is a tendency to gang up on an unpopular, even loathed, minority opinion in a way that distorts the story in order to give occasion for further fulminations. We don't know, for example, what the couple might have said to Mr. Galliano that sparked his vitriole.  Lyes Meftahi, a 38 year old Parisian who runs an audiovisual company, said that Mr Galliano was certainly drunk, speaking slowly and slurring his words. So much for any outburst. Furthermore, the witness said that the designer was keeping to himself and was ‘‘provoked’’ by a woman, who had called Mr. Galliano ‘‘ugly.’’  Mr. Galliano himself was threatened with violence at one stage during the altercation according to Mr. Meftahi. It is difficult for the rest of us to know what happened based on an objectionable snipet.

Rather than defending the designer, whose comments I concur were highly inappropriate (note that I'm applying rationalism again to a drunk person),  I want to contend that the rush to judgment against him had a certain amount of presumption attached. That is to say, we as human beings may tend to presume we are in a position to judge when in fact we are not. Taking ourselves as gods on earth in effect, we tend to assume omniscience rather than limited creatureliness as our mantle. For a part to take itself as the whole is to truncate reality itself into a mere projection of the part. Lest we forget, we are all fallible, even when we judge with apparent certitude.

For example, that Mr. Galliano had "helped to energize Dior after he joined it in 1996 as creative director, increasing sales and making it a jewel of the LVMH Moët Hennessy Louis Vuitton luxury-goods empire" was wantonly or unintentionally tossed aside by Mr. Toledano in what bears all the signs of a rush to judgment. In its statement, Dior said it had ‘‘immediately suspended relations’’ with Mr. Galliano and ‘‘initiated dismissal procedures.’’ It cited the ‘‘particularly odious comments’’ contained in the video. It is as though the weight of history came slamming down on the star designer, suffocating him from even proffering a self-defense before the fall of the guillotine. In the face of this injustice, it might be quelle dommage pour M. Galliano were it not for his own choice of weapon. He undoubtedly esteemed his own faculties too much in assuming he could handle being drunk. Again, human beings do not have as much pith as we tend to think.

To be sure, anti-semitism and racism ought to be relegated to the ash heap following the twentieth century. For all its technological progress, that century was remarkably decadent and stagnant.  In early 2011, the world dared to hope that popular protests sweeping the Middle East might have been ushering in a new progression of freedom in the establishment of republics in what had been autocracies for centuries. Would that region sport the tolerance that is necessary for a free society to truly be free? Can it look to Europe, where certain speech, even in a small group, can get one thrown in prison? According to The New York Times, "French law makes it a crime to incite racial hatred; the statute has been used in the past to punish anti-Semitic remarks."  Yet to incite seems to connote a public broadcasting or speaking format, as in inciting the mob to storm the Bastille (or, as in 1792, the republic's prison filled with aristocrats and clergy--a massacre that Robbespierre denounced as a travesty of the rights of man). Does a person incite hatred against a particular group simply be giving his opinion in a dispute with another person?  The dubious applicability of the French law seems to hinge in this case on treating a private gathering, albeit in a public establishment, as a public (political) event.  Of course, in the United States, even the latter is protected by the first amendment on free speech, but even there hate crimes exist. In the European Union, where speech is punished on account of the Nazi experience, the society looks overly restrictive and unfree, at least from an American perspective. To be sure, the reverse has also been the case. In 1948, for example, the U.S. Government banned showings in the U.S. of the American documentary, Nuremberg: Its Lessons for Today, even as Germans were free (and encouraged) to see it in Germany. The American military did not want Americans seeing the Soviets as allies (and the Germans, whose help the American govenment was then seeking against the Russians, as enemies). It is precisely such a proclivity that the first amendment of the U.S. Constitution was designed to thwart. The human species is insufficiently equipped to be able to curtail innate freedom effectively.

Source: http://www.nytimes.com/2011/03/02/fashion/02dior.html?pagewanted=1&sq=john galliano&st=cse&scp=2

See related essay (essentially completing the wider argument)  in this blog: http://thewordenreport.blogspot.com/2011/03/westboro-churchs-anti-gay-and-john.html