Free speech can be hard to defend – with a Bill of Rights OR with a written Constitution.
By Gordon Campbell
With good reason, people tend to contrast the relatively weak free speech protections offered by the New Zealand Bill of Rights with the far more robust and embedded protections afforded by the US Constitution. Yet last month, two important free speech cases – one in Wanganui and one before the US Supreme Court – came out with surprisingly similar results. In both cases, free speech finally emerged as the victor but the outcomes under both the NZ Bill of Rights and the US Constitution were hedged, inconclusive and disturbing. That’s no reason to give up on efforts to beef up our Bill of Rights – but it is a useful reminder that free speech issues won’t simply and magically disappear when, and if, we ever adopt a written Constitution.
Locally, Wanganui’s bylaw that banned the wearing of gang patches in public came unstuck in the High Court when Justice Clifford ruled that the ambit of the ban was too sweeping, and that the bylaw had been passed without due consideration of the freedom of expression provisions in the Bill of Rights, as pointed out in the House by the Attorney General.
Meanwhile in the States, the US Supreme Court chose to defend on constitutional free speech grounds, the right of a tiny sect called Westboro Baptist Church to picket the funeral of a soldier killed in Iraq. The sect’s message, the Supremes agreed by an 8-1 margin (against Judge Samuel Alito’s dissent) was a “contemptible’ one – that God had killed 20 year old Matthew Snyder because of America’s condoning of homosexuality, and because of the alleged sins of the Snyder family, which the sect listed on its website. These alleged sins included the soldier’s father Albert Snyder being Catholic, and him recently getting a divorce. Therefore, God had deliberately killed young Snyder, and the sect turned up at the funeral with signs that included “God Hates Fags” God Hates the USA/Thank God for 9/11,” ”Semper Fi Fags,” and ”Thank God for Dead Soldiers.”
In the Wanganui case, one would have thought the right to wear clothes of one’s choice – however much these may annoy or intimidate other people – was an absolute right. Meaning : if you find my T-shirt terrifying then that that’s your problem, or should be your problem. Under our Bill of Rights however, there are only anaemic protections for freedom of expression, and not much yet in the way of case law that is comparable to the protections afforded by the US Constitution, even though these – as we shall see – are quite conditional as well. The undoing of the Wanganui City Council turned out to be section 5 (6) of the gang patch legislation, which says explicitly :
A bylaw must not be made under subsection (1)(a) if the effect of the bylaw, either by itself or in conjunction with other bylaws made under subsection (1)(a), would be that all the public places in the district are specified places.
In Clifford’s learned opinion, the bylaw did just that – it had the effect of turning every part of Wanganui into a no-patch zone. With that in mind and presumably in the interests of marking out a middle ground, Clifford gave a strong nod and a wink as to what sort of bylaw might pass legal muster. Perhaps something, he suggested, that limited “the prohibition to a number of more specific areas including perhaps the CBD, parks and beaches and certain residential streets.”
So….gangs should be prevented from wearing patches up to the border of some arbitrarily defined CBD, and on this suburban street but not that one ? Could one wear patches to a park-like area meant for playing rugby, but not to a grassy park meant for general recreation? The judicial suggestion would leave all sorts of definitional and enforcement problems in its wake, and make Wanganui all too much like Deadwood – turn in your patches boys, because I say so.
In the end, the legal bill for pursuing this kind of populism will probably decide the matter. Taking the case to appeal has been estimated to cost some $40,000, which Wanganui can ill afford. The alternative, of rewriting the law and jumping through all the hoops of consultation and getting a rewritten Bill through Parliament again, would be even more costly. Wanganui is more likely to write off its doomed bylaw as a byproduct of its Michael Laws Experience. Problem being, that still leaves the status of gang insignia in something of a free speech limbo – just waiting for a Laws – like populist in some other town, willing to try Clifford’s blueprint on for size.
As for the US case, it would be easy and comfortable if the Supreme Court finding could be reduced to finding in favour of repugnant and contemptible speech as the price for having a defence for free speech in general. Unfortunately, the Westboro Baptist Church case wasn’t quite like that. In one important respect, it differed from the famous case where preacher Jerry Falwell claimed that 9/11 was “God’s punishment for the secularization of America by pagans, abortionists, feminists, gays and lesbians.” Falwell was attacking America in general. The sect made it clear in the oral argument stage of the hearing that they had attacked the private individuals in the Snyder family in particular for the alleged sins mentioned above. Justice Alito, the lone dissenter on the bench, had plainly been concerned during oral argument about this aspect and its implications.
By the logic of the Supreme Court ruling, the boundaries of family privacy do not extend to being able to express their grief in a context free of politico-religious and ( potentially) commercial disruption. In his majority opinion, Chief Justice John Roberts cited several allegedly mitigating factors. Such as : the Snyders were not the first funeral service the sect had similarly disrupted over the past 20 years. Nor was the funeral service itself disrupted – the sect kept themselves and their placards some “1,000 feet” away. “The protest was not unruly.” Roberts claimed. “ There was no shouting, profanity or violence.” Moreover on the day of the funeral, Albert Snyder saw only the tops of the placards on his way to the service, and fully realized the awful content of the demonstration only that night, after watching television news coverage.
It is at this point in reading the majority judgement that it begins to sound like Roberts is trying to create wiggle room for the court in both the language and the content of the opinion. Why “1,000 feet” rather than the much closer sounding “300 yards?” Is the apparent sincerity of the Westboro Baptist Church beliefs (as reflected in their 20 year campaign of bigotry ) relevant and should it give them greater funeral disruption rights over any budding, new entrant bigots ? Some critics have already alluded to Roberts’ apparent belief that “God Hates Fags” does not comprise profane speech, while “God Hates Fucking Fags” presumably would. Roberts also seems convinced that the Snyders ‘ funeral service was not really disrupted and that any rights to privacy were not violated because they discovered the full import of the hateful speech only later that same day, and not during the service itself. This seems a very circumscribed notion of grief. Even taken together, most of the distinctions seemquite specious.
Why the distinctions are relevant, is that not even the US Constitution offers an absolute protection to free speech. As Roberts concedes in his ruling,
That said, “ ‘Even protected speech is not equally permissible in all places and at all times.’ ” Frisby v. Schultz, 487 U. S. 474, 479. Westboro’s choice of where and when to conduct its picketing is not beyond the Government’s regulatory reach—it is “subject to reasonable time, place, or manner restrictions.”
In Roberts’ view though, the time, place and manner were reasonable enough this time to pass muster :
“The facts here are quite different, however, both with respect to the activity being regulated and the means of restricting those activities, from the few limited situations where the Court has concluded that the location of targeted picketing can be properly regulated under provisions deemed content neutral. “
The Snyder family (pictured left) begged to differ. In their lower court suit for damages, the Snyders had sued Westboro on three grounds : of intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. One can easily see the free speech issues on the sect’s side. Free speech is free speech. Yet here, there seemed to be a clearly competing right. These were not public figures, nor was the occasion a public event.
What the Supreme Court ruling means, in effect, is that families do not have a right to mourn a family member without the occasion being arbitrarily used for political purposes. As a result of this verdict, private individuals would now seem to be virtual fair game for any political or religious or commercial purpose, at the time when one might have thought their privacy right to grieve comprised – at the very least – a valid competing right. In Maryland, the outcome has been that a special law banning funeral picketing has now been passed.
It is quite hard to see how anti-stalking laws could be maintained in future in the light of this verdict. Proximity, again, can be relevant to the privacy issues involved with celebrity stalking, but the counter argument would surely be that the individuals stalked are public figures, while the Snyders and their relatives and friends were not. This dimension was raised in at least one media report on the oral argument stage of the case :
Attorney Phelps [ for the sect] argued that private individuals should not be treated differently than public figures, that picketing someone’s home was acceptable, as would be following and demonstrating against a wounded soldier who had been returned home. Justice Ginsburg interrupted, asking if a demonstration and exploiting a private family’s grief would be acceptable even if alternative venues were available? “Absolutely,” Phelps replied.
Interrupting Ginsburg, Justice Alito posed a hypothetical question, asking if it would be acceptable to verbally accost a grandmother, a private figure, on a bus returning from visiting her Marine grandson’s grave?
“It would depend,” Phelps hedged, “maybe she’s a public figure?” “No,” said Alito, “she’s a not in the public eye, and she’s a Quaker.”
“It depends,” Phelps began again before Ginsburg interjected, “Isn’t this stalking?” “No,” said Phelps, “it only sounds like stalking.”
Well, it only sounds like stalking because it is stalking. Not to mention the potential for riot and mayhem that funeral picketing creates at a time of intense private grief. (In that respect, the state of Maryland has clearly decided that the situation is not dissimilar to shouting “ Fire !” in a crowded theatre and thus passed its anti-funeral picketing law. The other states that endorsed the Snyder family position on the case may now have to follow suit.)
Taken together, the mitigating conditions that the Supreme Court’s majority opinion identifies – the relative proximity to the occasion, the relative profanity of the protest message, the relative visibility of the placards – begin to sound just as conditional, and just as unsatisfactory, as the Wanganui High Court decision. That’s the trouble with free speech issues, written Constitution or not. They usually involve competing rights, and people will draw the line at different points. Personally, I found myself advocating for the right to wear gang patches – or even Nazi insignia that may be hurtful to those who lost loved ones in WW2 – in public. Yet I’d also defend the right of private individuals like the Snyders to hold a funeral without it being disrupted for religious, political or commercial purposes.
It is, I admit, an arbitrary position. Because even so, should the state deny the right of a protestor to hold up a placard saying “Child Molester “ at or near the funeral of someone like Michael Jackson? Obviously not. Is the family of a soldier killed in Iraq entirely free of residual guilt for his/her role in Iraq ? Maybe not entirely. Yet in the context of a funeral, the search for absolute principles seems a mirage – all that one hope for is that a reasonable civility would prevail. Yet in America’s superheated current environment, that is plainly not enough.