U.S. Supreme Court loses compass in free speech v hate-mongering

By Narayan Lakshman,The Hindu, from the website, March 4, 2011
Resurrecting the United States’ centuries-old philosophical tussle between freedom of expression and hate-mongering, the U.S. Supreme Court ruled in an 8-1 decision on Wednesday that the virulently anti-gay Westboro Baptist church could continue to picket funerals of U.S. soldiers killed in Afghanistan.

The Supreme Court’s decision upholds an earlier ruling issued by a federal appeals court in Virginia, which overturned a preliminary verdict in favour of the father of a slain soldier. That man, Albert Snyder, father of a 20-year-old marine, Lance-Corporal Matthew Snyder, had taken issue with his son’s funeral service being disrespected by the Westboro Baptist protestors.
In the immediate vicinity of Mr. Snyder’s funeral proceedings the church members were reported to have carried placards saying “Thank God for Dead Soldiers,” “You're Going to Hell,” and numerous derogatory terms for gay persons.
The church, described by some as “the most detested church group in America,” has regularly appears during military funerals in support of its view that god was punishing the U.S. for its tolerance of homosexuality and the U.S.’ military engagements in Afghanistan and Iraq were manifestations of that punishment.
In the ruling of the apex court, Chief Justice John Roberts argued that “Speech is powerful... It can stir people to action, move them to tears of both joy and sorrow, and – as it did here – inflict great pain.”
Yet, he said, arguing for the majority on the bench, under the First Amendment it was unconstitutional to “react to that pain by punishing the speaker.” Rather, he argued, the constitution’s commitment to free speech required protection of even hurtful speech on public issues to ensure that we do not stifle public debate.
In his dissenting note Justice Samuel Alito wrote that “The verbal attacks that severely wounded petitioner in this case complied with the new Maryland law regulating funeral picketing.”
However, “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” he said. Justice Alito was reported to have added that the Westboro church “may speak out in many ways in many places and should not be allowed to capitalize on the private grief of others.”
Compare that ruling with the following from the Canadian Criminal Code:
The Criminal Code of Canada Sections 318, 319, and 320 of the Code forbid hate propaganda.[3] "Hate propaganda" means "any writing, sign or visible representation that advocates or promotes genocide or the communication of which by any person would constitute an offence under section 319." Section 318 prescribes imprisonment for a term not exceeding five years for anyone who advocates genocide. The Code defines genocide as the destruction of an "identifiable group." The Code defines an "identifiable group" as "any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation." Section 319 prescribes penalties from a fine to imprisonment for a term not exceeding two years for anyone who incites hatred against any identifiable group. Section 320 allows a judge to confiscate publications which appear to be hate propaganda. Under section 319, an accused is not guilty: (a) if he establishes that the statements communicated were true; (b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text; (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

And then this, from the Canadian Human Rights Commission
The Canadian Human Rights Commission administers the Canadian Human Rights Act.[8] Section 3 of the Act prohibits discrimination based on "race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted." Section 13(1) addresses the issue of hate speech. The section states:

It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.
Section 13(2) makes clear that posting hateful or contemptuous messages to the Internet is prohibited. Section 54(1) allows a Canadian Human Rights Tribunal to order a respondent to cease any discriminatory practice, to compensate the victim where the discrimination was wilful or reckless by an amount not exceeding $20,000, and to pay a penalty of not more than $10,000.
Clearly the U.S., by virtue of the decision of the Supreme Court, has lost its compass, with respect to the balance between free speech and hate-mongering. And, while it pains me to write these words because I never actually believed I would agree with him on anything, Justice Alito has maintained his bearings, his critical balance between the two forces, and his dissent is a beacon of light in an otherwise very dark cave.
Balancing free speech, in this case, that of the Westboro Baptist church's anti-gay cadre of protesters at the funeral of a gay serviceman, with the human rights and dignity of his family to conduct their funeral without such a despicable imposition of what can only be called hate-mongering against gays, (and in the name of Jesus Christ) would likely not be overwhelmingly difficult for the average grade nine student in the average American high school.
Somehow, even those who take an anti-gay position, I would like to think, in Canada, would not use the funeral of a serviceman just returned from active combat duty, as the stage for their protest. Somehow, such an act would be considered, (again I would like to think) "out of bounds" socially, politically and culturally in Canada. Perhaps the guide of our laws leads me to that hypothesis. Perhaps my own sensibility nudges me in that direction. Perhaps it is merely naive optimism that tells me we have not fallen so low as to think that such a protest would occur on the streets of our cities, towns or villages at such a time.
While there are many aspects of American life that the world can and does admire, this is not one of them.
While there are several aspects of Canada's political and cultural mores that one can find objectionable, this tolerance of diversity is one I find most honourable and worthy of upholding, celebrating and raising the flag in support.
Matthew Shepard was murdered and left hanging on a fence post in Wyoming a dozen years ago, after meeting two young anti-gay men in a bar. Shepard was gay and his parents established a foundation to educate people about the issue of gay tolerance. Perhaps, their foundation would find fertile ground for their work in both the Westboro Baptist Church and in the U.S. Supreme Court.
www.matthewshepard.org/ for more information, please use this link.