There's no such thing as free speech, argued then-Duke University Professor Stanley Fish in a famous essay nearly 20 years ago. Professor Fish is widely praised or assailed for championing what we've come to know and love or loathe as "political correctness."
He provocatively makes the case that all speech has limits beyond which it will be condemned, and that anyone — no matter how enthusiastic about unfettered expression — can be confronted by speech that goes beyond that person's own "pale."
This week, the Supreme Court of the United States ruled that the vulgar demonstration by members of the justly reviled Westboro Baptist Church of Topeka, Kan., at the 2006 funeral of Marine Lance Cpl. Matthew Snyder in Westminster, didn't go beyond the legal pale since it was behavior protected by the First Amendment.
The 8-1 ruling ended the efforts of the 20-year-old Marine's father, Albert Snyder, to collect damages for emotional distress he said was inflicted on him by the Westboro picketers, carrying their notorious "Thank God For Dead Soldiers" placards, and others describing Marines as "fags."
A lower court had awarded Mr. Snyder $11 million (later reduced to $5 million), a ruling that was overturned by the federal appeals court in Virginia. The Supreme Court vote — the sole dissenter was Justice Samuel A. Alito — upheld the appeals court decision.
This church's obnoxious demonstrations at military funerals across the country, claiming that these deaths are God's punishment of America for tolerating homosexuality, are offensive to virtually any decent human being. Yet I find myself agreeing with the eight justices that they should be protected constitutionally.
In the majority opinion, written by Chief Justice John G. Roberts, the court agreed that the protesters' comments were hateful and their contribution to public discourse was negligible, but that since these fools addressed "matters of public import on public property in a peaceful manner in full compliance with the guidance of local officials," their vulgar messages are lawful.
If you've followed this story, you know that Albert Snyder is outraged at the court's reasoning and that he wondered what the permissible boundaries would be were such a demonstration directed at the chief justice. Were I in his shoes, I would feel the same way.
However, the First Amendment is a precious hand-me-down from the framers of the document under which we ostensibly live. In this country, one may pay a heavy personal price for speech that others find hateful, but unless those words are backed by violence, the government cannot throw the person or persons responsible for "hate speech" into jail.
Contrast that with the highly publicized case of fashion designer John Galliano, fired this week from his job as the top talent at the fashion house Christian Dior after a video surfaced showing him using anti-Semitic insults in an argument with a couple at a Paris bistro.
If this incident had happened in New York, instead of Paris, no doubt Mr. Galliano would have lost his job and probably derailed his career, but he wouldn't be facing criminal charges as he is under the French legal system.
In this country, lots of prominent careers have ended because the current ruling taboos were violated. Helen Thomas, the dean of the White House press corps, lost her job and her prestigious seat in the front row of presidential press conferences after she uttered blunt words about Israeli Jews, saying they should "go home" to Europe.
Mel Gibson is persona non grata in Hollywood, 41/2 years after he allegedly went into an anti-Semitic rant after being pulled over by a cop for suspicion of DUI. (The rant confirmed the suspicion.)
Jimmy "The Greek" Snyder, legendary gambler and CBS sports analyst, ended his days miserably after being fired for suggesting black athletes were so dominant because under slavery they had been "bred" for physical prowess.
All this brings us back to Professor Fish and his assertion that the fight over political correctness is an artificial one because it's impossible for individuals or groups to occupy a position above or beyond politics.
Free speech boundaries are determined by the people who hold power. All speech is politically invested. One can pay a mighty high price for straying across those boundaries. But the government can't use its decisive power against violators here, as governments almost everywhere else can and do.
Tolerating Fred Phelps and his inbred congregation's antics is a price we have to pay for a much greater good.
Ron Smith's column appears Fridays in The Baltimore Sun. His e-mail is firstname.lastname@example.org.