The current U.S. Supreme Court is the most pro-First Amendment court in history, and that has resulted in some recent eyebrow-raising decisions involving freedom of speech, according to Ken Starr, independent counsel during the Clinton Administration and current president of Baylor University.
Starr spoke to Law Center students at a packed lunch hour gathering hosted by The Federalist Society on the topic of “The Westboro Baptist Case and the Public Square.”
He said the high court is adhering to the country’s founding principle that “the baseline is liberty.” The framers, he said, believed “you’d better have a very good reason to intrude on these basic rights.” That has resulted in recent rulings protecting the hate-spewing Westboro church protesters and the right to sell so-called animal “crush” videos. He said the court essentially has ruled that basic rights are so critical that such hateful and vile acts of expression are protected.
Starr said that in the March 2 ruling involving Fred Phelps and his Westboro Baptist Church the court went beyond legal precedent and Maryland law in protecting such speech against private citizens and not just public figures and officials. For 20 years Phelps and his followers, who are mostly relatives, have directed vitriolic protests against homosexuality with a constant theme that God hates the United States because it tolerates homosexuals. In the Supreme Court case, Phelps and his followers protested near a private military funeral waving placards reading, “Thank God for Dead Soldiers,” “God Hates You,” and “Thank God for IEDS” (Improvised Explosive Devices). In an 8-1 decision with Justice Samuel Alito dissenting, the court ruled against the soldier’s father by saying Phelps’ orderly protest complied with all laws and was protected speech.
Alito was also the sole dissenter in the “crush” video case in which small animals are stomped and crushed to death. In dissenting, he maintained that society has the right to protect itself from certain despicable acts.
By way of contrast, Starr cited a lower court decision, currently on appeal before the Fifth U.S. Circuit Court of Appeals, that prevented a child in Plano, TX, from passing out pencils carrying a printed religious message at Christmas. “Speech infringement will most likely occur at the local level,” he noted.
“How do we think through this?” Starr asked his audience about the disparate court decisions.
Western culture is built on the intrinsic human dignity and equality of each and every person, he said. Don’t exclude anyone’s voice, whether it is Christian or Islam or anything else, he said. “If we all embraced this, we’d be a lot happier and there would be a lot less litigation.”