Today’s 8-1 Supreme Court ruling defends free speech, not Westboro Baptist Church, its ideology or even its right to continue protesting at the funerals of fallen military personnel. Writing for the Majority, Chief Justice John Roberts was very clear about all three of these points when saying, “On the facts before us, we cannot react to that pain (caused by the protestors) by punishing the speaker.” Going even farther, Justice Stephen Breyer wrote, that in other circumstances, governments would not necessarily be "powerless to provide private individuals with necessary protection."
The Court defended the right of free speech Wednesday, not the rightness of Westboro or its members, and like the defense of all rights, there is an implicit challenge to all those who cherish those rights. There may even be genuine costs to defending those rights, and real question is who will pay these costs and can they be paid in a way that protects those most hurt by the church’s grossly insensitive behavior.
As decent people, people who put the pain of grieving families ahead of any religious or political ideology, and people who also cherish freedom of speech, we are all challenged by today’s ruling. It is now that we must decide if free speech means more than the freedom to say and hear what we personally can tolerate. Are we prepared to defend the rights of those with whom we most deeply disagree, at least as long as they do not pose a physical threat to our security? That is the personal challenge with which we must each wrestle.
Collectively, are we willing to stand up against the protestors? That is the next challenge which the Court has put before the American people. The court did not say that all bans against protests would constitute a violation of the right to free speech. In fact, the court’s ruling invites us to work with local and state authorities, wherever we live, to draft and support legislation which could pass the test of constitutionality while ending the current form of protest.
We are also challenged by this ruling to do for mourning families what the law cannot, and may in fact be better accomplished by people anyway. Imagine if hundreds of people showed up to act as human shields wherever families were conducting the funeral that Westboro wanted to protest. Imagine that those people stood between the mourners and the protestors, assuring that their ugly signs and hateful presence could not be seen or felt by the mourners. After all the best response to bad speech is better speech, and what could be better than protecting mourners and letting them know that they are not alone?
It would be far easier to ban the protests by Westboro, and certainly more comforting in the short term, at least. But, it may be that the Supreme Court has done us all a favor by not taking that easy road. In making an unpopular ruling, they are offering us all an opportunity to strengthen our national commitment to free speech, strengthen those laws which keep it from being abused, and strengthen our commitments to each other both as citizens and as neighbors.
If we rise to all three of those challenges, this will go down in history as a great day. It’s up to us.
Brad Hirschfield is the author of "You Don’t Have to Be Wrong for Me to Be Right: Finding Faith Without Fanaticism," and the President of Clal-The National Jewish Center for Learning and Leadership.