47 Pages Posted: 2 Oct 2012
Date Written: August 24, 2012
Snyder v. Phelps presented the Supreme Court with a shocking set of facts leading to a result that surprised some and confused many. On a more unsettling note, it showed that existing First Amendment doctrine has difficulty addressing prophetic speakers as they are. Prophetic rhetoric is a unique speech category that warrants nuanced consideration due to its sui generis nature. Seven characteristics of prophetic speech undermine assumptions usually taken to hold true in the Court’s free speech jurisprudence. The law as it currently exists can only address prophetic speech as some variant of a known problem, but it is not like the social commentary in Hustler Magazine Inc. v. Falwell, nor is it like the generalized obscenity in Cohen v. California. Indeed, because it sits at the intersection of symbolic speech and threatening speech, it may be more like the burning cross in Virginia v. Black. Prophecy carries an undercurrent of threat, and only a more nuanced understanding of prophetic speech would allow a court to determine whether it crossed the line to a true threat. The best response would be to expose prophetic speakers to potential tort liability, but also to more nuanced understanding. This sort of measured response would preserve the message, punish only the most harmful instances, and reduce the chilling effect of tort exposure.
Keywords: First Amendment, religion, Free Speech
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