October 21, 2010 at 5:32 pm EST | by James Saksa
It’s OK to ban ‘God Hates Fags’ protests

Earlier this month, the Supreme Court heard oral arguments in Snyder v. Phelps, a case that pits a grieving father of a dead soldier against a religious fanatic who spreads his gospel of “God Hates Fags” by demonstrating outside military funerals. The legal question is whether statements like, “Thank God for Dead Soldiers” and other such enlightened sermons should qualify as protected speech under the First Amendment, or whether this patriot’s father can sue the bile-spewing hate mongers for intentional infliction of emotional distress.

Legal scholars like to say “bad facts led to bad law.” For the self-anointed defenders of free speech, facts as terrible as these stoke fears that the court will carve out an erroneous exception to their sacrosanct principle. For me, facts as terrible as these severely undermine the stale legal ideology surrounding the First Amendment, and beg for pragmatic reforms to our laissez-faire approach to speech.

The entire justification for limitless speech stems from Justice Holmes’ notion of a “marketplace of ideas,” in which competing politics can fight it out so that their merits and shortcomings are exposed via reasoned deliberation. Holmes believed forcing ideas to compete for mental market share inevitably led to only the strongest surviving.

However, much like the mortgage bond market in 2008, this marketplace is broken, but don’t expect anyone to bail out America’s cognitively bankrupt political discourse.  An efficient market requires both rational actors and perfect information. Perfect information means that the parties agree on the basic facts before they trade ideas, but even this ancillary agreement is increasingly rare. Modern media facilitates selective discourse. Rather than gathering competing ideas in an open arena to duke it out until a clear winner consensus emerges, all of our intellectual fights are rigged.

On Fox, the right can have its preconceived biases confirmed by buxom blonds, while on MSNBC the left luxuriates in a gentle massage of intellectual and moral superiority. And if you don’t trust the “lamestream media,” you can always go online and find a “discourse” that is more coarse, more violent, more extreme and less accurate than even those two loathed networks. The Internet can be a keg of pure, unadulterated lunacy, straight from the tap and free of ideological impurities.

Our faith in rationality is no less naive. In fact, communication scholars like Penn’s Kathleen Hall Jamieson have long noted that politicians make emotional appeals to voters that feed on fear, hatred, uncertainty and naive hopes rather than rational arguments. Social psychologists and behavioral economists both have demonstrated that in such heightened emotional states, an individual’s capacity to reason is greatly diminished and our latent prejudices reinforced. It’s telling that political pundits have criticized President Obama’s calm and reasoned responses to his opponents’ histrionics; emotional appeals to our baser instincts always trump dispassionate analysis.

Human thought is the product of a dialectic between our heads (the cognitively developed, logical part of the brain) and our hearts (the emotional, instinctual part of the brain).

Importantly, most of our thinking on morality starts in the emotional part of the brain. Our head rationalizes what our gut tells us to think. Even under ideal conditions for reasonable debate, our preconceived notions tend to filter out dissent and amplify agreement. But under real-world conditions, disagreeable truths are rarely heard and never listened to, while falsehoods are repeatedly reinforced. This is why otherwise normal people can believe that Obama is a secret Muslim, or that Bush knew about 9/11 but let it happen anyway.

Now, insane extremism, alone, does not bother me; hell, many of my legal peers would call this essay both insane and extreme. But a functioning marketplace of ideas would discredit the extremists and support the moderates. Ours doesn’t. If anything, the opposite is true: the shrillest voices get the loudest microphones, and the rest of us are worse off for it.

So, I’m OK if the Supreme Court says that the First Amendment does not protect harassing military funerals. And I wouldn’t lose sleep if it had said that bans on burning the American flags are fine. That’s not because I hate some abstract notion of liberty, it’s because not one of these sensible restrictions would hinder our democracy. Instead, they would promote a less hysterical, more rational national discourse.

Such sane restrictions on the freedom of speech could help mute extremist cacophony and help us remember that we need not hate someone with whom we merely disagree. Now, doesn’t that sound nice?

  • The issue isn’t whether rationality in public discourse is a good thing or a bad thing. The issue is whether government should act as a gatekeeper. You refer to “sensible restrictions” and “sane restrictions,” but whom do you trust to define “sensible” and “sane” and to enforce those definitions? Would a rule that any positive mention of homosexuality is per se obscene qualify as sensible and sane? Until 1958, the US Government answered that question in the affirmative.

  • That the Snyder v. Phelps case has gone all the way to the Supreme Court points to the two biggest loopholes in our existing laws on libel, slander and defamation of character: 1) They don’t allow sanctions for intentionally defaming the soldiers and inflicting emotional distress on their families, even if the targets of such defamation aren’t mentioned by name, and 2) they don’t allow class-action lawsuits.

    Were it not for those two loopholes, Snyder and the relatives of other soldiers killed in Iraq and Afghanistan could have sued Westboro for defamation. Their protests at the soldiers’ funerals clearly defamed the soldiers character and that of the soldiers’ families.

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