Richard Epstein: Freedom of Speech and Keeping the Haters at Bay

By TAP Staff Blogger

Posted on March 22, 2011


Freedom of speech is a right we hold dear in this country. Recent events in North Africa and the Middle East have shown the fragility of freedom of speech as governments have blocked internet access for its citizens (see TAP blog, “Censorship of Cyber Space: Lessons from Egypt”).

Earlier this month, a completely different event has provoked an examination of freedom of speech. The Supreme Court ruled that the First Amendment protects anti-gay protests at military funerals. The case, Snyder v. Phelps, arose from a lawsuit filed by the father of a dead Marine against the members of a small church in Kansas who picketed his son's funeral to publicize their message that God kills American soldiers because the United States tolerates homosexuality.

Professor Richard Epstein, University of Chicago Law School, joined The New York Times “Room for Debate” segment to put in his thoughts on “Keeping the Haters at Bay.” In his essay, Professor Epstein points out that “…the First Amendment wins, but only by a hair.”

Professor Epstein’s opening remarks:

Ordinary people have a right to be deeply uneasy with the outcome in Snyder v. Phelps, for it is almost obscene that the members of the Westboro Baptist Church think that their path to salvation lies in ruining the lives of others in the moment of their greatest grief. And I am grateful to Justice Alito for writing a dissent so that the public understands that there are two sides to this question.

He also comments:

It seems odd therefore to say that conduct that is widely recognized as unlawful should somehow be necessarily protected under the banner of freedom of speech.

Read Professor Epstein’s complete essay: “Keeping the Haters at Bay.”

Richard A. Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago, where he has taught since 1972. He has taught courses in many areas, including civil procedure, communications, constitutional law, contracts, corporations, criminal law, health law and policy, legal history, labor law. At present he is a director of the John M. Olin Program in Law and Economics.