Predictably, in the wake of the Supreme Court's decision the Term before last in Snyder v. Phelps, various states and now Congress have enacted new laws regulating demonstrations or picketing at military funerals.
Snyder overturned a $5 million "emotional distress" judgment against members of the Westboro Church for holding a homophobic demonstration at the funeral of a soldier killed in Iraq. That award violated the First Amendment, the Court explained, because the "distress" experienced by the slain soldier's father (the plaintiff in the suit) "turned on the content and viewpoint of the message conveyed." Things would have been different, the Court suggested, had the Church been held liable for "interference with the funeral itself."
This ruling involved a straightforward application of the "noncommunicative harm" doctrine, which says that, for purposes of the First Amendment, harms arising from negative reactions to ideas or messages are "noncognizable" -- i.e., not a legitimate basis for regulation. The government can impose limits on political protestors and other speakers only to prevent "noncommunicative harms"--ones that can be defined independently of anyone's negative reaction to the speakers' ideas.
Well, the new laws all purport to prohibit demostrations that do or could "interfere" with military funerals in ways unrelated to the "content and viewpoint" of demonstrators' messages. Some impose penalties for blocking or obstructing. And others, like the new federal law, create "buffer" zones that restrict the proximity of the demonstrators to the funeral as a prophylactic measure against those kinds of "noncommunitive" harms.
But will the enforcement of these laws really assure that military funeral protestors are held liable only for "noncommunicative harms" and not for expressing contentious -- and in the case of the Westboro Church, genuinely noxious -- ideas?
Cases based on these laws will turn on facts. Courts will scrutinize the evidence either to determine whether protestors "interfered" with particular funerals or to test the soundness of the governmental determination that without "buffer zones" such interference would be nearly certain to occur. The theory of cultural cognition predicts that factfinders will be unconsciously motivated to conform their assessments of the evidence on such matters to their moral appraisals of the positions the protestors are advocating.
Turns out we've already tested this very prediction. In our paper, "They Saw a Protest": Cognitive Illiberalism and the Speech-Conduct Distinction, 64 Stan. L. Rev. 851 (2012), we presented the results of an experiment in which subjects playing the role of jurors watched a videotape of a protest to determine whether the demonstrators had "pushed," "shoved," "blocked" and otherwise "interfered" with pedestrian access to a building. The answer the subjects gave -- what they saw on one and the same tape -- depended on two things: (1) what we told the subjects about the protest-- that it was one conducted by anti-abortion demonstrators outside an abortion clinic or instead one by conducted by opponents of "Don't Ask, Don't Tell" outside a military-recruitment facility; and (2) the cultural outlooks of the subjects. Basically, if subjects found the protestors' message culturally disagreeable, they saw all manner of "noncommunicative harm," whereas if they concurred with the protestors' message, then they saw no such thing.
In fact, the filmed protestors weren't demonstrating against either abortion or "Don't Ask, Don't Tell." They were members of the Westboro Church, filmed at a protest that they conducted at Harvard University in 2009 (the study, too, was conducted well before the Church's case got to the Supreme Court). Snyder v. Phelps notwithstanding, there's still plenty of room in the law to restrict the funeral protests of the Westboro Church based on the disgust people (quite legitimately) feel toward the Church members' ideas.
The sort of censorship that sneaks through this "motivated reasoning" loophole in the First Amendment, moreover, doesn't limit itself to protestors as pathetic as the Westoboro Church. From1960s civil rights and antiwar demonstrators to last year's "Occupy Wall Street" protestors, politically charged speakers have always generated polarized responses: not about whether it's okay to punish protestors for their ideas--there's really no dispute about that; but about whether protestors advocating controversial positions have crossed the line from speech to intimidation--something we in fact all agree they can be punished for doing. Yet First Amendment doctrine has nothing particularly helpful to say about our predictable tendency to impute danger and harm to those who threaten our worldviews.
There's a lot of John Stuart Mill in U.S. constitutional law -- and I have no problem with that. I only wish there were a little bit more William James and Herbert Simon.