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Saturday, March 5, 2011

Does a Wrong Make A Right?

“To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker.” — Frederick Douglass.

The other night I was viewing quite a dust up between Megyn Kelly and Bill O’Reilly over the recent 8-1 decision in the case of Snyder v. Phelps . The case involved the right of the members of the Westboro Baptist Church to stage protests at military funerals.

The Westboro Baptist Church (WBC) is an independent Baptist church known for its extreme stance against homosexuality and its protest activities, which include picketing funerals and desecrating the American flag. The church is widely described as a hate group and is monitored as such by the Anti-Defamation League and Southern Poverty Law Center. It is headed by Fred Phelps and consists mostly of members of his large family; in 2007, it had 71 members. The church is headquartered in a residential neighborhood on the west side of Topeka about three miles west of the Kansas State Capitol at 3701 West 12th Street, Topeka, Kansas, United States. Its first public service was held on the afternoon of Sunday, November 27, 1955.

The church has been actively involved in the anti-gay movement since at least 1991 when it sought a crackdown on homosexual activity at Gage Park about a mile northwest of the church. In addition to anti-gay protests at military funerals, the organization pickets other celebrity funerals that are likely to get it media attention.

The WBC is not affiliated with any known Baptist conventions or associations. The church describes itself as following Primitive Baptist and Calvinist principles, though mainstream Primitive Baptists reject the WBC and Phelps. groups Jerry Falwell referred to Phelps as "a first-class nut". The WBC picketed the funeral service of Falwell on May 22, 2007.

Snyder v. Phelps was a case heard by Supreme Court of the United States on whether the free speech rights of protesters are more important than the privacy rights of mourners attending funerals. It involved a claim of intentional infliction of emotional distress made by Albert Snyder, the father of Matthew Snyder, a Marine who died in the Iraq War. The claim was made against the Phelps family, including Fred Phelps, and against Phelps's Westboro Baptist Church. The Court ruled in favor of Phelps in an 8-1 decision, holding that their speech related to a public issue on a public sidewalk. Chief Justice Roberts wrote the majority opinion stating: “"What Westboro said, in the whole context of how and where it chose to say it, is entitled to 'special protection' under the First Amendment and that protection cannot be overcome by a jury finding that the picketing was outrageous.” The court's opinion also stated that the memorial service was not disturbed, saying, "Westboro stayed well away from the memorial service, Snyder could see no more than the tops of the picketers' signs, and there is no indication that the picketing interfered with the funeral service itself." The decision also declined to expand the "captive audience doctrine", saying that Snyder was not in a state where he was coerced to hear the negative speech.

Justice Samuel Alito was the lone dissenting justice in this case, beginning his dissent with, "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case." He concluded, "In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner."

Back to the Kelly—O’Reilly dust up (Click link to view). Megyn Kelly, an attorney, was the editor of the University of Albany Law Review and a practicing attorney for nine years prior to joining FNC as a news anchor and host of America’s Newsroom, was defending the Court’s 8-1 decision in the WBC case. O’Reilly, host the popular FNC show The O’Reilly Factor was defending Justice Alito’s dissenting opinion.

O’Reilly put forth the argument that common decency should trump free speech and the actions of the WBC, since they were directed at Snyder and his family, were hate speech directed at a private person and therefore not to be considered protected speech. In essence, as Thomas Jefferson said, “your rights end at the tip of my nose.”

Kelly, on the other hand, claimed that the case was not clear in his fact and that since the protestors were forced to stage their protest 1,000 feet away from the service and that Snyder did not even know of the protests until he returned home and saw a TV news report. She also put forth he argument that no matter how reprehensible and ugly the speech of the WBC was it was to be considered free speech in accordance with the First Amendment to the Constitution and did not qualify as restricted under Justice Oliver Wendell Holmes’ “shouting fire doctrine.

Jonah Goldberg writes in Phelps, the deranged pastor of the Westboro Baptist Church -- which is more like a family entourage of psychos -- has devised a scheme for getting attention: He desecrates military funerals. His group shows up chanting hateful slogans and carrying signs reading "God Hates Fags," "Thank God for IEDs" and "Thank God for Dead Soldiers." They claim that these tragic deaths are divine punishment for social acceptance of homosexuality.

Albert Snyder, the father of a fallen Marine, sued Phelps for protesting his son's funeral. He won millions. The Supreme Court overturned that verdict Wednesday.

I think the decision is a travesty. But, alas, after reading it, I also find it perfectly defensible, probably even correct. Anyone familiar with the concept of "garbage in, garbage out" can appreciate that this isn't necessarily a contradiction.

The court had to deal with the narrow facts of this case, the relevant trial history and precedents, and doing so, they came out in a terrible place: in effect defending a "right" Phelps should not have. As Chief Justice John Roberts put it, "The reach of our opinion here is limited by the particular facts before us. ... (We rely) on limited principles that sweep no more broadly than the appropriate context of the instant case."

But you wouldn't get the sense that this was a narrow, even shallow, victory for free-speech absolutists based on much of the commentary about it. Nearly all of it boils down to a single insight: Just because speech is offensive doesn't mean we can ban it.

Making funeral protestors "shut up" is tempting, concedes the Detroit Free Press, but "anyone who values their freedom should understand why that's just not the American way to deal with hateful, hurtful speech."

The Supreme Court simply confirmed that "free speech has meaning only if objectionable speech is included," insists USA Today.

For example, in its decision the court upheld severe regulations on funeral protestors. Indeed, Snyder himself couldn't make out Westboro's signs or hear their chants at the funeral, because Maryland officials required the protests to be at least 1,000 feet away (though I'd be fine with making it 10,000 feet). It was only days later that Snyder saw on TV what the protesters were saying, or read on the Internet their vile personal attacks on his family.

Why don't these restrictions offend free-speech absolutists?

Goldberg continues: “Perhaps because, even though we like to mouth platitudes, we actually recognize that some speech is so vile, so beyond the pale, that we as a society understand that it might impinge on other things we hold dear -- like the reasonable expectation that a parent might have to bury his child respectfully and in peace.

And that's why Phelps' tactics are the real issue, as Justice Samuel Alito's compelling dissent makes clear. Westboro deliberately taunts the grieving family, tipping off the press in the process, because it knows such heartless cruelty counts for "news." If the press grew bored with the protests, Westboro would likely invent a new tactic. Screaming obscenities at first-graders perhaps?

Nobody questions Phelps' right to say what he wants to say -- about anything. The question is whether funerals should be "no-free-speech zones," as some absolutists put it.

Forty-three states already say, in effect, that yes, military funerals should be zones of relative decorum. What remains a mystery is why the other seven states haven't followed suit.

Free expression and debate will continue to thrive in the United States even if we prohibit turning cemeteries into speakers' corners and coffins into soapboxes.

Oh, but what about the terrifying prospect of a slippery slope that in short order will take us from banning the desecration and exploitation of funerals to an Orwellian society?

Stephen Wermiel, a professor at American University, warns: "If you start defining and banning offensive speech because someone doesn't like it, it's hard to draw the line, and one day you wake up and find you don't have much protected speech."

I find WBC’s actions reprehensible and obscene and I agree with Goldberg’s weak defense of the decision. But, I believe there is more to this decision than is being written about. Not being an attorney or constitution scholar or even an expert on Supreme Court decisions I believe that this decision will now have the status of stare decisis. This means lower courts will have to give the decision authority when ruling on other First Amendment free speech issues. Yes, this will pertain to pornography, so called hate speech and violent political rhetoric. But, it will also pertain to those who want to enforce the Fairness Doctrine against those in the broadcast industry whom they do not agree with. As Megyn Kelly states, what about regulations against publishing cartoons detrimental to Islam or banning certain speakers from college campuses.

Canada, like many other western nations (The Netherlands’, Germany, France and Denmark) does not have a First Amendments. People can be prosecuted for their speech as Mark Steyn was for his alleged conservative and anti-government comments. What would happen to commentators like Rush Limbaugh, Ann Coulter, Mark Levine and Michael Savage? Recently Ann Coulter was banned from speaking at a Canadian University on the reason she was disseminator of “Hate Speech” Yes, hate speech as being defined as speech you do not agree with.

Even in the United Kingdom the British allow all forms of speech. They have their famous Hyde Park corner in London’s vast Hyde Park. There are radical Islamic Imams peaching jihads against Britain and the world and they are allowed to spout off the vilest things about western civilization. On the other hand there are speakers a few yards distant defaming the Imams and Islam.

800px-PatriotguardThere is nothing stopping the Patriot Guard Riders from attending these funerals all decked out in their riding gear, American Flags on their Harley Davidson bikes I have seen them at the Riverside Medal Of Honor Cemetery attending the funerals of our military brethren who had died in combat or by natural death. They are respectful and patriotic. This is how you counter hate speech or speech you don’t agree with — you speak up for yourself. You do not look to government to regulate speech for someday they will regulate your speech.

Patriot Guard Riders protect military funerals

James Madison, with the agreement of our Founding Fathers believed the right of free speech and freedom of religion were so important they made it the first amendment to in the Bill of Rights. They made the Second Amendment so the People could keep the First.

Someday all of the participants in this case will be gone but this decision will live on. This is the way our laws work. Until the day when this decision is overturned — which could happen — it will be considered the “Law of the Land” and it will protect all of us — those with whom we agree and those who with we do not agree.

Some will argue that the case was flawed and that the decision was based on faulty evidence. Isn’t that the way most Supreme Court cases are? Didn’t Norma McCorvey give false testimony in her suit against Dallas County District Attorney Henry Wade in what was to become the landmark case of Roe v Wade? Legal scholars will tell you this case to was flawed, but aren’t most cases that come before the Supreme Court flawed in some way. When has the perfect case been presented or decided? This is why so many cases are decided along ideological lines by a 5-4 decision. This case, however, was decided by an 8-1 majority with one dissenting opinion. Rarely has the Court spoken with such unity.

As Jonah Goldberg says: “Unfortunately, America is ensorcelled by categorical thinking. Some offensive speech is worthwhile, constructive and necessary. Other offensive speech is reprehensible and indefensible. But, we are told, whether its garbage or gold, it has equal standing before the law. And that's why so much garbage goes in, and so much comes out.”

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