This might well be my entry for “Stupid Idea of the Month.”
But here goes:
In Snyder v. Phelps, a lawsuit regarding 1st amendment free speech rights is in front of the Supreme Court.
The problem is that almost no matter what the Supreme Court rules, it will drastically change society.
The choices are:
1) Yes, it is free speech that is covered under the 1st Amendment.
2) No, it isn’t free speech to be a complete and total offensive jerk.
I think the Supremes will rule that the Phelps’ church annoying activism is free speech. After all, it isn’t yelling “Fire!” in a crowded theater: it doesn’t actually endanger anyone. But if it does rule that Phelps’ special brand of buttheadedness is covered by free speech rules, then it also pretty much specifically protects that speech. There will be pretty much no way to stop it, even though 99.8% (made up stat, but you get the idea) of US citizens consider the speech to wrong, annoying, and offensive.
Those are the only choices we have: complete illegality, or protected by the law with pretty much no restrictions.
Why does it have to be a binary choice?
The Phelps clan is using our legal code. They believe they will get a favorable ruling that their speech is protected under 1st Amendment principles, and they will be free to say what they want.
This isn’t the only issue that gets this 100% or 0% treatment. I’m not going to provide any examples, I’m sure you can think of some yourself.
What I want to know is, why can’t we apply Fuzzy Logic to our legal code? There should be a gray area, that such deliberately offensive speech isn’t restricted/denied, but also isn’t fully allowed, either.
One possible way to do that? Allow the speech, but significantly weaken assault prosecutions in the face of provocation.
Now, maybe I’m idealizing a mistaken view of the past, but it seems to me that 100 years ago, or even 50 years ago, you could give someone a poke in the nose if he was being a jerk, and as long as it was clear the guy was being a jerk, that was about it. Part of that is that you were supposed to be man enough to deal with annoyances when necessary, and the annoyance himself was supposed to be man enough to take the correction in the physical manner. And if/when the jerk was a better fighter, you could go get friends. And if he had friends who could fight and used that power to be a jerk to anyone he wanted, well, that’s where the police would come in. Run into a door a few times, or carelessly get your hands slammed in a drawer once too many, and anyone can learn manners. I’m sure of it.
That’s not the only solution, of course. I’m not a legal scholar.
The point is that there must be a way to preserve someone’s right to protected free speech, including the right to be an idiot and/or jerk…but still keep it within reason.