The Rev. Fred Phelps and the Westboro Baptist Church are infamous for their protests at military funerals, bearing signs like “God Hates Fags.” The father of one deceased soldier, Matthew Snyder, sued Phelps for damages for emotional distress. Phelps claimed that his speech was protected by the First Amendment and the Supreme Court agreed.
The decision in Snyder v. Phelps relied heavily on the facts of the case, which have been largely ignored in the press. Westboro informed police authorities about their intended protest and complied with instructions. The 30-minute protest was held out of sight of those attending the funeral. The only protestors were Phelps, his two daughters, and four grandchildren.
The very fact of the protest undoubtedly added to Mr. Snyder’s anguish. However, speech can rarely be prohibited solely because it is hurtful. As the Court observed, “Westboro thinks America is morally flawed; many Americans might feel the same about Westboro.” Expression of both views is entitled to protection. We rely on the court of public opinion, not courts of law, to decide who is right.
It’s worth recalling that the “freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.” Ironically, Mr. Snyder’s lawsuit was a vehicle for reaffirming this core principle of the American system that his son fought and died to protect.
Copyright is always a divisive issue and an upcoming Supreme Court case promises not to disappoint. The issue in Golan v. Holder is the constitutionality of a law, enacted as part of a global trade agreement, which restores copyright protection for foreign works that have previously been in the public domain in the U.S.
The case involves musicians, educators, performers, publishers, archivists, and distributors of creative material. Some have gone to great effort and expense to identify, restore, record, manufacture, and distribute works that were in the public domain, including symphonies by Stravinsky, Prokofiev and Shostakovich; books by C.S. Lewis, Virginia Woolf and H.G. Wells; films by Federico Fellini, Alfred Hitchcock and Jean Renoir; and artwork by M.C. Escher and Picasso. The ability to perform, share and build upon these works now requires a licensing fee, which in some cases is prohibitive. The government defends the law on the grounds that other countries do not always afford copyright protection to American works, and that the promise of reciprocity would protect American copyright holders of American works abroad.
The Copyright Clause allows Congress “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The clause attempts to balance the free speech interests of the creators of intellectual property and its consumers, but there has always been a tension between the economic interests of copyright holders and the interests of the public in an expansive public domain for intellectual property. In Golan, the Court has been called up to decide between these competing interests.
We have reported many times on the seemingly endless fight over whether the FCC “decency” regulations violate the First Amendment. Last summer, the Second Circuit Court of Appeals invalidated the regulations on the ground that they are unconstitutionally vague because they fail to give broadcasters a clear definition of what might be deemed “indecent.” Broadcasters and others claimed the regulations create a chilling effect because they have been inconsistently applied. For example, Saving Private Ryan was not considered indecent while a segment of The Blues, a PBS documentary series created by Martin Scorsese, was slapped with a fine for indecency. On April 21, 2011, the DOJ asked the Supreme Court to overturn the Second Circuit decisions. In this situation, the policies of Democratic and Republican administrations seem virtually indistinguishable.