Thursday, March 3, 2011

The intersection of the Westboro protestors and lawyer blogging

The SCOTUS Synder v. Phelps opinion (ABA Journal synopsis here) has little to do with social media, but very relevant to the topic of Free Speech under the First Amendment.

(also, it is all the online law school community could talk about yesterday, which shows the impact that social media has on the dissemination of important matters such as this one. Within fifteen minutes of logging onto my laptop yesterday, I was informed that this opinion had come down, without having opened a newspaper or turning on the television)

Here are some powerful words from the Court, which ultimately held, in an 8:1 decision, that Phelps’ Free Speech rights must be upheld:
“Such a risk is unacceptable; in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.”

And this is at the core of the First Amendment:
“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 intersection between blogging and news sources as free speech under the First Amendment will be discussed in a later blog. In short, the Court uses the New York v. Sullivan [1] test to determine that the Westboro speech was protected. It stated,

“Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment.”

My question is this: Are the Westboro Baptist Church protestors different than, say, an attorney who speaks unfavorably about a judge on a blog? (remember Kristine Peshek ? I don’t believe they are. In addition, blogs are arguably of a greater public concern because they are a permanent record of a public matter.

[1] New York Times v. Sullivan, 376 U. S. 254, 270 (1964).

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