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Freedom of expression is the 'essence of our democracy,' according to Faust Rossi

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John Carberry

The right to free expression has been at the core of U.S. democracy since its inception. On the issue, the U.S. Constitution is unequivocal: Government "shall make no law ... abridging the freedom of speech," the framers wrote.

But does the First Amendment have limits? Should even the most abhorrent and hurtful speech be protected?

Faust Rossi, Cornell professor of law, posed the question in a lecture March 13 at One Day University in New York City.

"Freedom of speech is said to be the most cherished of our constitutional rights. It is the essence of our democracy," Rossi said.

But it's not always easy to stomach. Consider the recent Supreme Court case of Snyder v. Phelps, in which members of the Westboro Baptist Church picketed with highly offensive signs outside a military funeral.

The father of Matthew Snyder, a soldier who was killed in Iraq, filed a suit arguing that the demonstrators intentionally inflicted emotional harm and intruded on a private event.

That case -- in which the Court ruled eight to one in favor of the church -- was the latest to test the limits of the First Amendment, Rossi said; but it reaffirmed some of the principles set forth in a landmark case from 1977.

In the Village of Skokie v. the National Socialist Party of America, the Supreme Court heard similarly compelling arguments in favor of limiting speech. Frank Collin, a self-proclaimed Nazi, sought to march with his followers in Skokie, Ill., a Chicago suburb in which many Holocaust survivors lived. Village residents protested, arguing that the psychological damage the march would inflict outweighed the group's right to free speech.

The case took nearly three years to resolve. Along the way, Rossi said, it played on the fears and rage of Holocaust survivors, the broader Jewish community and the public.

At first, the village decided to allow the march and simply advised residents to stay away. Pressured to resist, the village filed a suit arguing that Skokie was unique for its concentration of Holocaust survivors, who would suffer psychological harm; and that the march would lead to violence.

The village won an injunction barring the march; a series of appeals followed. Ultimately, the Illinois Supreme Court ruled in favor of Collin's group. The court noted that the possibility of violence was not great enough to justify restricting speech, and that residents were free to avoid the protest if they objected. The injunction was lifted.

And that, it turned out, was enough for Collin. Having achieved his goals -- a win in court and worldwide publicity -- he canceled the march.

Skokie's residents were also satisfied. Public opinion had been on their side, they noted; the world had been reminded of the Holocaust; and the Nazis stayed away. "Everyone declared victory," Rossi said.

But the case lives on, Rossi said; most recently with its echoes in Snyder v. Phelps.

And it marks a key difference between the United States and most other industrialized democracies, he added.

"Many other countries -- European democracies included -- see the state as having an affirmative duty to protect the honor and dignity of its citizens. They would not tolerate the result in Skokie," he said. "Indeed, it's very possible that if Frank Collin tried to operate in France or Germany, for example, he would not be able to march anywhere. He would be in jail."

So, which philosophy is better?

Rossi said he knows which side he would take. But he left that question to the audience.

 


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