Snyder v. Phelps (09-751), 2 March 2011, United States Supreme Court. A recent decision of the United States Supreme Court, in which it upheld the rights of a radical anti-gay Christian group to protest at military funerals, provides a useful opportunity to compare free speech protections here to those provided over the pond.
By way of comparison, five men recently failed in a challenge to their public order criminal convictions for protesting with similar signs at a homecoming parade for British soldiers. What does this say about our respective free speech protections?
The US court upheld by an 8-1 majority the First Amendment right to free speech in respect of a Baptist congregation who had for 20 years been protesting at military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in America’s military.
The picketers peacefully displayed their signs—stating, for example, “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys,” and “You’re Going to Hell”—for about 30 minutes before the funeral began.
Fred Phelps, who founded the church, and six Westboro Baptist parishioners picketed the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty. The picketing took place on public land around 1,000 feet from the funeral, in accordance with guidance from local police.
Synder’s father filed an action in tort (civil wrong) against the protesters. In other words, he used the civil courts to sue the congregation for financial damages. A jury held Westboro liable for millions of dollars in compensatory and punitive damages.
The focus of the court was on whether the speech was of public or private concern. If the former, the protesters would be protected under the First Amendment from being held liable for its speech in a civil action. Although the dividing line between private and public concern is unclear, the court has previously said that speech is of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community.“
The court held that, as hurtful as the speech was, it was still protected under the Constitution. First,
Westboro conducted its picketing peacefully on matters of public concern at a public space adjacent to a public street…
This was important as not all speech is equally permissible in all places at all times. But the protesters had been directed to a particular space by local law enforcement, and had complied with that direction. The state now has a law against funeral picketing, but did not at that time.
Synder argued that he was a captive audience to the protests (known as “the captive audience doctrine”). The court disagreed:
Westboro stayed well away from the memorial service. Snyder could see no more than the tops of the signs when driving to the funeral. And there is no indica- tion that the picketing in any way interfered with the funeral service itself. We decline to expand the captive audience doctrine to the circumstances presented here.
The court went on to hold that the speech was indeed of public concern, even if hurtful to many people:
Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. … 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.
Finally, the fact that the speech was hurtful was not enough to take it outside of First Amendment protection. In fact, its hurtfulness was part of the reason that it should be protected:
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.
How does this compare with our own recent decision (see Isabel McArdle’s post), in which the High Court ruled that the criminal prosecution of a group of people who had shouted slogans, including, “burn in hell”, “baby killers” and “rapists” at a parade of British soldiers, was not a breach of their right to freedom of expression, protected by Article 10 of the European Convention on Human Rights?
The first thing to say is that the cases are not directly comparable. The jurisdictions are significantly different and the protecting instruments – the Constitution there and the Human Rights Act here – are quite different too. Moreover, the US case involved a civil action against the protesters where as the UK case concerned a criminal prosecution under hate speech rules. And factually the cases were different, particularly in relation to the proximity of the protesters to the people being protested against.
But, notwithstanding that lawerly proviso, the similarities are illuminating. Both cases involved the emotive issue of what most of society would consider unsavoury radicals chanting hate slogans aimed at soldiers.
In the UK case, five men were convicted of using threatening, abusive or insulting words within the hearing or sight of a person likely to be caused harassment, alarm or distress, contrary to section 5 of the Public Order Act 1986.
In that case, as in the US case, the protesters met with police beforehand and management of the protest was discussed. On the day, the protesters shouted “British soldiers go to hell”, “terrorists” and “cowards”. The men were arrested on the following day, on the basis of video footage of the protest.
They argued that they had complied with directions from the police and there was no evidence the police warned them to cease chanting the slogans. But, as the court ruled:
…dialogue [with police] can only help to reduce the risk of untoward events but it cannot guarantee in advance that the words and conduct of protesters will not contravene the law.
If the line between legitimate freedom of expression and a threat to public order has indeed been crossed, freedom of speech will not have been impaired by “ruling …out” threatening, abusive or insulting speech.
Therein lies the difference. The simple fact is that although our freedom of expression is protected under Article 10 of the European Convention, that article is subject to a number of qualifications, and as such can be restricted in the interest of public safety, for the prevention of disorder or crime. The UK government has decided to restrict political expression with criminal laws against hate speech. And the exercise of this law is generally considered by the courts to be compliant with Article 10.
This means that free speech here is far more constrained than in the United States, where even “hate speech” is generally protected under the First Amendment to the US Constitution (see my post on the Congressman Giffords shooting).
In the US, there remains only a very limited list of forms of expression which are not protected by the First Amendment: obscenity, child pornography, speech that incites imminent danger, and regulation of commercial speech such as advertising. Although the United States does have laws against hate speech, as compared to the relatively low bar of the “likely to cause” English test, in the US speech must incite imminent violence. This is difficult to prove and as such has led to few successful prosecutions.
Hating others’ views
One of the fascinating aspects of this comparison is the major point made by the US court to the effect that a jury composed of members of the public should not be permitted to rule on cases involving public speech. The rationale is clear. By definition, if speech is publicly unpopular, a jury is likely to take a dim view of it. This could hardly be better demonstrated than protesters chanting their hateful views at the funeral of a local hero. But history has shown that societies lose out when speech is regulated by the court of public opinion.
It may be said that this is quite different to UK hate laws, which have been passed by Parliament with careful consideration of its responsibilities to public safety and free speech. But this assumes that Parliament is immune to the public mood in relation to unpopular views. And it is difficult to see how 5 men chanting slogans at a parade can properly be said to have constituted a threat to public safety. What they really did wrong was say things which most people disagree with and would be upset by.
The lesson seems to be that, to paraphrase the US court, as nations we have charted different courses. In light of these protest cases, it is difficult to argue that hurtful speech on public issues in the UK is properly free, and that public debate is not being stifled.
This was originally posted on the UK Human Rights Blog and reproduced with permission and thanks.