Speech We Hate, Speech We Protect

If Anthony Lewis issues a revised edition of his excellent book Freedom for the Thought We Hate--A Biography of the First Amendment I have little doubt that he will include a discussion of yesterday's decision by the Supreme Court in Snyder V. Phelps.

There are few better examples of repugnant, hateful, and odious speech than that presented in Snyder, where a group of seemingly half-witted, delusional members of a so-called "church" protested--as is their habit--in the vicinity of a funeral service for a fallen American soldier.* As widely reported, the members of this so-called church have for many years picketed military soldiers to communicate their belief that God hates the United States for its tolerance of gays, particularly in the military. The picketing in Snyder involved the so-called pastor and six of members of his "church," all related to the "pastor." Among other things, their placards included one reading, "Thank God for Dead Soldiers."

As I said: repugnant, hateful, odious. Not to mention half-baked and delusional.

But as the Court held in its 8-1 decision(Justice Alito dissenting), they are protected from tort liability arising from that speech by the First Amendment. As the Court concluded:

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. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

The speech at issue here is speech most Americans hate, but the Court rightly decided it must be protected. The decision does indeed reflect freedom for the thought we hate.

The title of Lewis' book pays homage to a dissent by Justice Oliver Wendell Holmes Jr. in the 1929 case of U. S. v. Schwimmer. In that case, the Court ruled that citizenship could be denied a foreign-born applicant who refused, due to her strong pacifist beliefs, to take an oath to take up arms in defense of the United States. In his dissent, Holmes stated with regard to her beliefs:

Some of her answers might excite popular prejudice, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate. I would suggest that the Quakers have done their share to make the country what it is, that many citizens agree with the applicant's belief and that I had not supposed hitherto that we regretted our inability to expel them because they believed more than some of us do in the teachings of the Sermon on the Mount.

In his book, Lewis recalls the time he first read that passage, around 1960 when it was--literally--handed to him by Justice Felix Frankfurter, and how when he came to the end of the paragraph he felt the hair rise on the back of his neck. (Lewis 37) I am surprised that the spot-on wording by Justice Holmes did not find its way into the Snyder opinion.

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* = Contrary to common lore--particularity on certain talk radio stations--the Court noted that the protests were peaceful and conducted about 1,000 feet away from the funeral service, in accordance with local requirements. The funeral procession itself came no closer than 200 to 300 feet from the protesters. And Albert Snyder, the plaintiff and father of the slain soldier, testified that he saw only the tops of the signs and could not read what they said when the procession passed by the protesters, learning only later that day the content of their speech.

No chance for LaChance

In a to-the-point rescript opinion in Edward D. LaChance, Jr. v. Boston Herald et al.,the Appeals Court of Massachusetts this week affirmed a summary judgment dismissal of defamation and other claims brought by LaChance, an incarcerated prisoner, against the Boston Herald and one of its reporters.

In 2004, while serving a sentence for aggravated rape, LaChance placed a personal ad on a Web site known as “Inmate Connections” (in violation of prison rules barring maximum security inmates from Internet access). 

In 2005, the Herald published three articles on the topic of online “dating" by incarcerated felons. The articles variously stated—incorrectly—that LaChance had been convicted of manslaughter, that he claimed in his ad to be in prison for manslaughter, and that he had committed a brutal sexual attack on an elderly woman.

The Herald and its reporter concede that those assertions were factually inaccurate, in that LaChance was not in prison for manslaughter, did not make such a claim in his ad, and did not commit a crime against an elderly victim.

The trial court ruled that the alleged defamatory statements were either privileged or substantially true, and granted the defendants' motion for summary judgment.

In affirming the dismissal, the Appeals Court concluded that the newspaper articles at issue addressed matters of public concern—the dangers of interacting with violent felons online—and that as a result of his own actions—whereby LaChance thrust himself into a particular public controversy—LaChance was a limited purpose public figure. In arriving at that conclusion, the court noted that LaChance’s ad was misleading and controversial, finding particularly deceptive his assertion that, “I’m not a bad man and I treat everyone the way I wish to be treated.”

The court then turned to whether the subject statements were false and made with actual malice.

Although the articles contained inaccuracies (even a literal falsehood), the court concluded that such statements did not rise to the level of actionable falsity or defamation. The gist of the articles was accurate: inmate ads should not be trusted in general, and LaChance’s ad in particular was dangerously deceptive in that he withheld details of his violent criminal history and portrayed himself in a light that might seem more innocuous to potential respondents on the match-making site.

As LaChance offered no proof of actual malice—that is, that the statements were published with knowledge of falsity or reckless disregard for whether they were false—LaChance failed to carry his burden of proving actual malice.

Finally, the court rejected LaChance’s contention that the fair reporting privilege did not apply to his case. The published article contained a fair and accurate report of a court docket entry as it existed at the time of publication. Even though the entry was in error, it was not corrected until months after the publication of the articles, and the paper had no way of knowing about the error at the time of publication. As such, the reference to a brutal sexual attack on an elderly woman was, although inaccurate, privileged and insulated from a claim of defamation.

And to answer your question ("Who would represent this guy in a defamation case?") ... yes, LaChance represented himself. The media defendants were represented by Liz Ritvo.