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A look at our freedom of speech
Written by Kerry Ashmore, Publisher
Posted  3/23/2011
They got it right

We have, a few times recently, criticized the justices on the U.S. Supreme Court for their decisions. It’s only fair that we weigh in on the recent decision in the Snyder vs. Phelps et al case, where we think the justices saw through a highly-emotional set of facts and landed squarely (8-1) on the correct side of history and the U.S. Constitution. The right to free speech, the justices say, trumps the presumed right to be protected from offensive speech during a time of great emotional distress, even while grieving for a member of the U.S. military who was killed in the line of duty.

The ruling is a particularly important statement on the importance of freedom of speech, as almost anyone can find reason to take great offense at the speech that was challenged. It came from members of the Westboro Baptist Church in Topeka, Kansas, who travel around the country and picket military funerals, claiming that military people die because God is punishing the United States for tolerating homosexuality.

Many responsible people pleaded with the justices to make an exception to the Constitution and punish those whose speech is so very offensive. The justices properly rejected those arguments.

Neither patriotism nor humanism nor a desire to enforce standards of basic human decency—however laudable those goals might be—was allowed to obscure the Constitutional issue.

As a society, we must protect even the most repugnant of speech (and for many, the speech in this case qualified as such), or we risk having our Constitutional rights interpreted and re-interpreted at the whim of a given day’s public opinion.

We have no time for messages of intolerance, and our hearts are heavy for those who have lost loved ones in these wars for which all Americans are responsible but a relative few bear the intense personal sacrifice. We mean them no disrespect when we commend the justices for a firm and courageous decision.

They got it wrong

A Hennepin County jury decided that blogger John Hoff (Johnny Northside) should be punished financially—$60,000 worth—for publishing the truth and expressing an opinion about a very public person in a position to receive very public money. The verdict sends a very public message to community journalists: If you expose an unpleasant truth about a public situation, you’ll be punished.

We hope Hoff will appeal, and we expect the ruling will be set aside if he does. But Hoff shouldn’t have to go through an appeal; he should never have had to go through a trial.

In decision after decision, in decades of established law, the courts have ruled that truth is an almost-universal defense against publication-related punishment; and that, in the case of public figures, only deliberate lies or reckless disregard for the truth can result in punishment for publishers. This court ruled that Hoff’s writing was true, and that he was writing about a public figure. Damages against him should have been ruled out.

Of course, the verdict doesn’t say Hoff was punished for exercising his free speech rights. That would never fly. It says he was punished for causing someone to lose a job, and for causing emotional distress. This is merely a pretense to rationalize allowing what the Constitution specifically prohibits in any but the rarest of cases: Abridging the right to free speech. Hoff’s situation is not at all rare, and it’s preposterous to hold him responsible for how other people acted on the information he published. Are journalists now expected to predict what might be done with any bit of information they publish, and prepare to pay if what other people do causes distress or economic loss? Will those who truly wield the power to cause economic loss now be able to say, The journalist made me do it. Make the journalist pay! Preposterous, yes, but for the moment, true.

One can agree or disagree with Hoff, one can like or dislike his style. Your publishers have held all of those opinions at one time or another. But the North Side, and the entire city, are far better off with him than without him; and society should be encouraging more people to speak (or blog) their minds on important public issues. Instead, this ruling suggests that society should silence him and anyone else who, like your publishers, dares to question how public people spend public money.

In 1927, U.S. Supreme Court Justice Louis Brandeis provided good advice for those who would punish free expression: "The remedy to be applied is more speech, not enforced silence." And, more than 2,000 years earlier, Sophocles warned that it’s a bad idea to "kill the messenger." The ruling in the Hoff case gives community journalists 60,000 reasons to clam up. We hope it is reversed soon.

Northeaster Opinion