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Friday, March 11, 2011

Private Lives of Public Concern

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.

Posted by Ari Ezra Waldman on March 11, 2011 at 01:24 PM | Permalink


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If your view of equality is that “everyone may live autonomously in private” rather than “everyone may voice their dignitary harms in public to raise consciousness and realize equal citizenship,” then you’re arguing for a strong public/private distinction and also arguing that no citizen is obligated to debate identity politics issues because they are annoying and interfere with living a good life. But, on that view, gay rights advocates are just as annoying as anti-gay haters, because virtually no advocacy groups go away. Isn’t the argument against the Westboro Church that others wish they’d just go away? The proper response to Fred Phelps is “Listen, jerk. Why don’t you shut the hell up?” The First Amendment gives you the right to say that, to say it publicly, and to say it repeatedly. Constantly being made to shut up only becomes a problem when it consists of you being harassed in private, thereby depriving you of free speech while living your autonomous life. For that, you can sue.

Posted by: Praetor | Mar 12, 2011 5:37:01 PM

As an Executive Coach, I can't help but wonder why we pander to the need for control by governments and individuals. No government should care what goes on in the bedroom nor should any organization unless they impose a behavioral code on their members. In which case, we willingly submit to the control. But otherwise, freedom does not grow in the garden of control.

Posted by: Quinn Price | Mar 12, 2011 3:10:13 PM

What if a group similar to Phelps' were to take similar action in connection with the funeral services of a deceased Supreme Court Justice? (It should be pointed out that the forces of government probably would take steps to pre-empt the ability of such a group to get as close to the funeral services as was the case with the Snyder funeral.)

Posted by: Shag from Brookline | Mar 12, 2011 6:19:45 AM

On a related point, I noticed the Court made no mention of the fact that the speech by the Phelps was also religious speech, which should be near the core of the First Amendment even if it arguably did not address a matter of public concern. Homophobia apparently is a key tenet of the Phelps' religious doctrine. As a result, shouldn't the speech also receive protection through this route?

Posted by: MB | Mar 11, 2011 3:25:26 PM

It seems a bit inconsistent that a speaker cannot make a plaintiff a public figure for defamation purposes - the defamation can't be the basis of making someone a public figure.

But the speaker has more control over whether the speech is a matter of public or private concern. If you advocate an issue enough, it may become a matter of public concern, thus making it easier to show that the speech deserves heightened protection.

Posted by: J.W. Lens | Mar 11, 2011 3:06:14 PM

Indeed, we know that, but this was a talk with laypersons. Even still,
the response is unsatisfying to many, especially since racism and
anti-Semitism are held in much lower regard than being anti-gay in the
court of public opinion, i.e., CNN and FOX regularly have anti-gay
hate groups as experts, but would never do so for anti-Black or
anti-Semitic groups.

Posted by: Ari Ezra Waldman | Mar 11, 2011 2:28:02 PM

*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.*

Hasn't the Court shown itself to be just as welcoming (I prefer permissive) of that hate? R.A.V. could burn a cross, the Nazis could march in Skokie, etc. (the most recent cross-burning case, Virginia v. Black, is an odd maybe-exception, but still).

Posted by: Howard Wasserman | Mar 11, 2011 2:08:11 PM

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