In its October 6, 2010, editorial, "Lamentable Speech," The New York Times stood up for a hard line stance on the right to free speech. As the editors wrote, "To the American Nazi Party, Hustler Magazine, and other odious figures in Supreme Court history, add the Rev. Fred Phelps Sr. and the members of the Westboro Baptist Church in Topeka, Kan. Their antigay protests at the funeral of a soldier slain in Iraq were deeply repugnant but protected by the First Amendment. All of the sympathy in the case of Snyder v. Phelps, which was argued on Wednesday at the Supreme Court, goes to the family of Lance Cpl. Matthew Snyder, the fallen Marine. But as the appeals court in the case observed, using words of Justice Felix Frankfurter, 'It is a fair summary of history to say that the safeguards of liberty have often been forged in controversies involving not very nice people'."
OK, so far so good except, as one comment on the editorial pointed out, where has The New York Times been when hate speech laws were being passed? Why didn't it defend the right of those uttering hateful opinions about blacks? Well, one can only suppose that those folks do not deserve the same protection that was provided to the American Nazi Party or, in this case, the Rev. Fred Phelps Sr. and the members of the Westboro Baptists Church. It would have been politically incorrect or, to use the old fashioned term, impolitic to argue for that.
Even more obvious is The Time's very partial support of constitutional integrity when one thinks where it stands on the takings clause of the Fifth Amendment which suffered a major blow from the U. S. Supreme Court back in July of 2005, in the case of Kelo v. City of New London Connecticut, when it supported the confiscation of private property for the purpose of bolstering the City's tax based by approving its taking of private property to be given to a private firm that was to develop it and then pay big bucks to the city in taxes. (BTW, to this day the property hasn't been developed!) So while it is OK for the court to insist on the full protection of the free speech rights of a group of nasty bigots, it isn't OK for it to insist on the full protection of the equally vital constitutional principle of private property rights against the intrusiveness of city governments. Not a sign of true integrity, me thinks; more a matter of the philosophy of "a living constitution"!
So what is it with The Times and others who appear to hold that the right of freedom of speech is vital – well, except when hate speech is involved – but the right to private property, which actually supports the former right (because, after all, unless property rights are secure, freedom of speech or religion isn't either), can be dispensed with? I hazard to guess that the cherry picking of rights is in the spirit of The Times' pragmatic philosophy, one that actually has no respect for basic principles in any sphere of reality. To pragmatists everything is negotiable. And that doesn't preclude posturing as defenders of principle now and then, when some agenda one is favoring may benefit from it.
What agenda might be served by insisting on upholding the principle of the right to freedom of speech in this case? Well, what pops to mind is that perhaps those soldiers and their families who are being harangued by Rev. Fred Phelps Sr. and the members of the Westboro Baptists Church aren't fighting in a war that The Times approves of. Another might be that The Times is not very fond of the US Military in general. Yet another might be that freedom of speech is only of special interest to The Times – after all, it mostly operates under the protection of the First Amendment as it editorializes and opines about innumerable subjects. (But to come out and defend hate speech would be too much – The Times is too committed to the special interests of certain groups at which such speech is often aimed.)
No, I do not for a moment believe that The New York Times has come to see the significance of principled adherence to the Bill of Rights no matter how readily its editorial quotes Justice Felix Frankfurter. Pragmatism does not forbid making use of principles when it serves the special purpose to which a pragmatist is devoted, just as Communists and Nazis have no trouble making use of the US Constitution as they defend those principles that make it possible for them to attack the very political system that's founded on them.
One needs to be careful not to be taken in by the phony parading of principles by those who really, in the end, care not a whit for principles, for whom integrity is deep down but a sign of naive fundamentalism – consider how defending free market capitalism is ridiculed as "market fundamentalism" by one of the favorite columnists of The Times even though most who stand up for that system do so as a matter of their commitment to principle!