ADVERTISEMENTS

I recently spoke with a group of gay rights advocates -- lawyers and laypersons -- about the First Amendment, gay rights and LGBT law, in general. One comment/question struck me, especially in light of the Supreme Court's recent decision in Snyder v. Phelps. "With all due respect, Mr. Waldman, you seem to be justifying anti-gay hate speech in the name of protecting esoteric concepts of free speech." My interlocutor continued: "What I don't understand is how conservatives' bigoted attacks on my private life are entitled to the greatest First Amendment protections as 'matters of public concern,' as you say, when they are the ones who are making my private life a matter of public concern. They're tired of hearing about my gay life? Well, then stop talking about it. I want nothing more than to live a simple life with my family. Why does their hate become political speech when they're the ones making my life a political matter?"

Dan (a pseudonym) used slightly more colorful language, noting at one point that my lack of grey hair and otherwise youthful countenance make me untrustworthy. But, in any event, Dan raises an interesting point: Should it matter who creates the political issue when determining if given speech is political speech?

First Amendment law does not care who starts a fight when determining if the fight is public or private. And, gay rights in general are clearly matter of public concern and raised by both sides -- progressive gay advocates seek state recognition of our unions, our rights to serve our country and our right not to be fired simply for who we are, and anti-gay conservatives use the political sphere to fight and take away those rights.

But, should anti-gay invectives be granted the same vaunted status as political speech when conservatives are the only ones inserting hate into an otherwise political discourse?

In Snyder, the Court stated as follows:

?[S]peech on public issues occupies the ? ?highest rung of the hierarchy of First Amendment values? ? and is entitled to special protection.? Connick v. Myers, 461 U. S. 138, 145. Although the boundaries of what constitutes speech on matters of public concern are not well defined, this Court has 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,? id., at 146, or when it ?is a subject of general interest and of value and concern to the public,? San Diego v. Roe, 543 U. S. 77, 83?84. A statement?s arguably ?inappropriate or controversial character . . . is irrelevant to the question whether it deals with a matter of public concern.? Rankin v. McPherson, 483 U. S. 378, 387.

It is clear from Snyder that hateful anti-gay rhetoric, though "inappropriate," is still "relat[ed] to any matter of political ... concern to the community." Dan does not seem to think that is fair. Why should private matters -- what we do in our bedrooms, whom we love and how we consecrate that love -- be grounds for accepted hate in the public sphere? I imagine Dan is wondering if the Court would have been as welcoming to the Phelps' hate if they made racist comments about African-Americans or anti-Semitic comments about Jews.

My response to Dan was unsatisfying to both of us. The First Amendment permits a broad swath of speech and it includes often hateful comments, and just because you think something should not be discussed does not mean that everyone else agrees with you. I think what Dan misses is that the state has an interest in allowing this inveterate hate in the public sphere, if only to alienate the haters. Reasonable public discourse may even benefit from the Phelps clan like the Yankees benefit from the Redsox, or Duke needs UNC, or Itchy need Scratchy. Good needs evil, right needs wrong.

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.