In an article in a recent edition of the Washington Post by Prof. Jonathan Turley, Shapiro chair of public interest law at George Washington University, of the same title, the professor, a self-proclaimed liberal and supporter of same-sex marriage, discusses the unforeseen consequences of Justice Kennedy’s majority opinion in the recent Supreme Court decision supporting same-sex marriage. Justice Kennedy cites the issue of “dignity” as the key issue in granting marital rights to homosexuals and lesbians. In Turley’s own words, “He [Justice Kennedy] found a right to marriage based not on the status of the couples as homosexuals but rather on the right of everyone to the ‘dignity’ of marriage.” He continues, “Dignity is a rather elusive and malleable concept compared with more concrete qualities such as race and sex. Which relationships are sufficiently dignified to warrant protection? What about couples who do not wish to marry but cohabitate? What about polyamorous families, who are less accepted by public opinion but are perhaps no less exemplary when it comes to, in Kennedy’s words on marriage, ‘the highest ideals of love, fidelity, devotion, sacrifice, and family’? The Justice does not specify.”
As Turley notes, “Some of the greatest attacks on dignity are often found in the exercise of free speech. Europe and Canada, for example, protect broader dignity rights through laws that penalize statements deemed degrading, hateful or insulting to different groups, including homosexuals. In Britain, for example, a Baptist street preacher was charged with causing “harassment, alarm or distress” by stating on a street corner that he viewed homosexuality to be a sin.”
While I do understand the professor’s concern, I must point out that laws protecting the dignity of groups from hateful or false statements do have merit. Indeed, I was an advocate for just such legislation a number of years ago on the Oprah Winfrey show, when the neo-Nazis had demanded their right to free speech on public access cable television – Tom Metzger’s Race and Reason program. Rather than allow him the opportunity to present his racist and anti-Semitic rhetoric on the public airwaves, the city in question simply closed down public access cable TV. I offered the alternative of legislating law which makes it a crime punishable by a suitable penalty for maligning a group of individuals similar to those laws we have which allow for individuals to sue for libel.
I understand the value of free speech and its significant importance to democracy in the United States. Would the concern be only the matter of “harassment, alarm or distress,” I would not call for such legislation. Yet, there is also the concern, most noticeable in recent years regarding the State of Israel, that placing no limitations upon free speech regarding groups, the constant repetition of a lie concerning a group of folks often leads to common acceptance of that lie, and many times attacks upon that very group. As Jews, we have been the recipients of just such an effort in the past through the anti-Semitic propaganda of Nazi Germany, dehumanizing the Jews to such a degree that otherwise intelligent, sophisticated individuals had no problem massacring six million of us. Today, we face the same problem with the constant maligning of Israel as an apartheid state, a state which daily practices human rights violations, accepted, not only by a growing number of individuals in our society, but tragically by our young on the college campus as well.
A consequence of this is the international movement to curtail any economic relations with the Jewish State. Allowing for unbridled free speech, free speech that permits unfounded vile and blatant lies to be levied against a group, in my view, requires a legal response. Again, I do accept that freedom of speech comes at a price. However, that price should never include the welfare or, G‑d forbid, the lives of the maligned. As King Solomon teaches us, (Proverbs 18:21) “The tongue has power over life and death; those who indulge it must eat its fruit.”