Friend and co-blogger Jason Kuznicki was quoted in the Richmond Times-Dispatch on the Fred Phelps/hate speech case:
The only remaining rationale for censoring hate speech -- or a similar incendiary expression of opinion, such as flag-burning -- is that it inflicts emotional pain. But the Cato Institutes' Jason Kuznicki makes quick work of this by asking a few simple questions: How are we supposed to measure emotional pain? If we could measure it, what level of pain would be sufficient to trigger punishment? If a news organization broadcasts a hateful message to Jews and gays simply by reporting on a demonstration by the WBC, then should the news organization also be held liable for damages? What else should we ban?
And if we are to balance rights against feelings, then what about the feelings of the members of the Westboro Baptist Church? Their willingness to subject themselves to nearly universal loathing suggests they must feel very strongly indeed. Weighed on a purely utilitarian scale against the broader -- but less intense -- feelings of their critics, their intensely felt feelings might win the day . . . especially if their emotional state were added to the feelings of the many people who cherish free speech, and would experience genuine dismay at an act of government censorship.
The wonderful thing about free speech, Kuznicki reminds us, is that it is compossible: One person's exercise of the right does not diminish anyone else's. But a regime in which feelings hold sway inevitably requires government to dismiss some people's claims as less worthy: If a wahhabi Muslim and a gay-rights advocate started denouncing each other's ideals, then whoever could claim to have been more wounded or demeaned would get to silence the other.
A regime of rights lets each of us defend the other's right to speak, without endorsing the message. A regime of feelings, on the other hand, inevitably pits religious and ethnic groups against one another in a war of perpetual indignation. Probably few things could make the Westboro Baptist Church more happy than that.
[Today, the Supreme Court granted cert. in the Snyder v. Phelps case.]