Institute for Justice attorney Paul Sherman raises an interesting question in the wake of last week’s Supreme Court decision upholding the free speech rights of the Westboro Baptist military funeral protestors. As Sherman notes, both The New York Times and The Washington Post editorialized in favor of Westboro Baptist yet each came out against the free speech rights of the conservative non-profit group Citizens United when its case came before the Court last year. As Sherman writes:
While these papers pat themselves on the back for their fidelity to the First Amendment, let’s keep something in mind: These same papers excoriated the Supreme Court when it held that Congress lacked the power to ban a political documentary produced with corporate money. What gives?
The answer is that the Westboro Baptist Church’s speech, while vile, is also totally inconsequential. Nobody is going to be persuaded by their inarticulate grunts of rage. And it is relatively easy to tolerate speech that you do not believe will persuade anyone. What is considerably harder is to stand up for speech that is persuasive, speech that might actually cause people to adopt beliefs or enact policies that you disagree with.