It's often said that unpopular speech is the type that needs to be defended, since popular speech will rarely face a meaningful threat. Speech that is disagreeable and persuasive will probably seem less appealing than speech that is disagreeable but unlikely to sway anyone to its cause.
It is telling, then, that the New York Times and Washington Post editorial pages vociferously opposed last year's "Citizens United" Supreme Court ruling, but defended the court's decision on Wednesday to preserve the right of the Westboro Baptist Church to protest the funerals of those who die defending that right.
Paul Sherman of the Institute for Justice, which filed a brief in the "Citizens United" case, phrased it this way:
…the Westboro Baptist Church’s speech, while vile, is also totally inconsequential. Nobody is going to be persuaded by their inarticulate grunts of rage. And it is relatively easy to tolerate speech that you do not believe will persuade anyone. What is considerably harder is to stand up for speech that is persuasive, speech that might actually cause people to adopt beliefs or enact policies that you disagree with.
So the New York Times and the Washington Post have it wrong. The beauty of the First Amendment is not that it leads us to tolerate the insignificant antics of the Fred Phelpses of the world. Rather, it is that the First Amendment permits us—and commits us—to resolve even our most consequential disagreements peacefully, with words, not force.
With that in mind, consider J.P. Freire's review of the Times' and Post's treatments of the two court decisions in a blog post Friday:
While the New York Times ripped the Citizens United decision as thrusting "politics back to the robber-baron era of the 19th century," the Gray Lady applauded the Westboro Baptist decision because "even deeply flawed ideas must be defended because they are part of the public debate on which this country depends." Even the Washington Post praised the decision in Snyder v. Phelps, saying that “the beauty of the First Amendment is often most vibrantly expressed under the ugliest of circumstances," after having blasted Citizens United as opening "a dangerous pathway for corporations to spend money in direct support of -- or in opposition to -- candidates for federal office."
The Times and the Post dislike both the Westboro Baptist Church and many of the groups empowered by "Citizens United." But while the WBC is unlikely to sway any person to their cause, electioneering communications by ideological groups can and do affect political attitudes.
Those facts make it far easier for the Times and the Post to stick up for the rights of the Phelps family - who they know have little chance of swaying anyone to their cause - than for the groups affected by Citizens United, which both papers likewise disagree with, but which are far more likely to actually have an impact on the national political debate.
In short, the editorial positions of the Times and Post respect the free speech rights of ideological opponents only when the groups exercising those rights are unlikely to gain anything by it.
That's a strange position for a pair of leading newspapers to hold.
