Even Jerks Have Rights

A couple of days ago, the Indianapolis Star ran a story about a group of very odd bedfellows who are urging the Indiana Supreme Court to accept and reverse a case that presents significant First Amendment issues. I was one of those “bedfellows,” and I will admit that I would never have imagined teaming up with Phyllis Schafly’s Eagle Forum, or the “First Amendment” organization run by Jim Bopp! (I have more in common with other members of the group: Jim Brown, former Dean of IUPUI’s Journalism School, the Indianapolis Star itself, the Hoosier State Press Association, and a variety of other organizations.)

The case that gave rise to this challenge was a divorce and custody battle. The Judge awarded custody of the children to the wife, and the husband was furious. He vented his displeasure in a series of blog posts that were–well, just let’s say they were not complimentary. Among other things, the husband compared the decision to award custody to the mother to child abuse.

From what I can tell from the record, the guy is missing a few screws, and is fairly unpleasant to boot.

Being unpleasant, however, is not equivalent to waiving one’s right to free speech. In this case, the lower courts ruled that the husband’s online rants had violated an Indiana statute prohibiting intimidation. That Statute defines intimidation as a threat or threats that have the purpose of making their target behave in a certain way (for example, the man who tells his girlfriend that he will break her arms and legs if she leaves him). The Indiana Court of Appeals decided that the husband’s stated intention to continue publicly criticizing the Judge amounted to such a threat.

If that interpretation stands, the statute would criminalize common, constitutionally protected forms of speech. The purported “threat” was along the lines of “If you don’t reverse your decision, I’ll continue to badmouth you.” As Eugene Volokh, the constitutional scholar and law professor who is representing our group, puts it in his brief, this sort of “threat” is indistinguishable from the following:

(1)  a columnist’s writing, “Legislator A’s vote on issue B is ridiculous, and I intend to ridicule him until his constituents view him with contempt.”

(2)  an advocacy group’s picketing a store with signs saying, “The store owner’s decision to stock product C is disgraceful, and we hope our speech will expose the owner to disgrace and ostracism.”

(3)  a politician’s saying, “The incumbent’s decision D is so foolish that, once I tell the voters about it, he will be the laughingstock of the state.”

The truth is, the right to free speech is often exercised by people who have nothing of value to say. It is often a shield for vulgarity and stupidity. It protects people who use words to attack and diminish others. But so long as the weapon of choice is language–so long as there is no threat of non-verbal harm–the speech is protected against reprisals from government. As numerous courts have reminded litigants, the antidote to bad speech isn’t government suppression; it is more and better speech.

As tempting as it is to use the government to shut down annoying jerks, it’s well to remember that a government with that power can also silence the rest of us.