Strengthening Constitutional Self-Government

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The Irrelevant First Amendment

The Supreme Court opinion in the Westboro Baptist Church case (the military funeral disrupters) illustrates why the First Amendment has become increasingly irrelevant to self-government.  Of course free speech is more important than ever, but the Court's majority opinion shows the divide between that fundamental constitutional principle and what has become mere First Amendment "freedom of expression."  As Justice Alito argues in his solo dissent, "Neither classic 'fighting words' nor defamatory statements are immunized when they occur in a public space, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure like Matthew Snyder [the fallen Marine] any differently."  Of course, "funerals are unique events at which special protection against emotional assaults is in order."  The Justice is on his way to becoming the Justice for common decency and the friend of dogs--see his dissent in the animal cruelty case.  

The Court's appalling conclusion about free speech also reminds us of an important political issue for defenders of constitutional government.  First, Justice Alito is on the Court because conservative Republicans protested President Bush's nomination of an unqualified crony.  Second, note Justice Breyer's concurring opinion, which underlines the limits to the Court's free speech defense.  Breyer voted correctly against University of Michigan quotas in the undergraduate case, and he was the swing vote in the Texas state house Ten Commandments display case (he voted the wrong way against the Ten Commandments' posting in a court house).  For one, Clinton nominated Breyer because of the relative ease of confirmation.  Even the perception of political opposition can shape the Court and the lower courts.  Hence the need for robust, incisive argument against nominees who undermine constitutional self-government.   

Categories > Courts

Discussions - 22 Comments

Ken, I haven't read the majority opinion yet, but do you have an idea why Justice Thomas would have signed on with the majority and not with Alito's dissent?

Because Thomas believes in the First Amendment?

Sorry to say it, but I'm ashamed of Scalia, Thomas and Roberts. This is truly appalling. Funerals aren't "public events," but rather semi-private ones where individual families are consoled (in this case, in part by the government that was responsible for the death). To say that the deceased's occupation allows all manner of "free expression" in a semi-private venue opens the door to all kinds of foolishness. Even free speech must have some limits -- in this case when they infringe on the right of families to celebrate and mourn the lives of their loved ones. A truly sickening decision.

First, Justice Alito is on the Court because conservative Republicans protested President Bush's nomination of an unqualified crony.

Harriet Miers was not a specialist in constitutional law. She had not worked as a judge. You can argue about the necessity of either of these (William Dyer argued that the Court needed leavening from people experienced in certain departments of law not then represented) but note when you do that William Rehnquist, Lewis Powell, and Robert Jackson had never sat on the bench and that the bulk of Clarence Thomas' experience in adjudication had been on regulatory commissions. This woman was the managing partner of a Dallas firm with hundreds of attorneys and antecedent to that had graduated 1st in her class at Southern Methodist Law School. None of the sitting judges on the Court in 2005 had been more accomplished in the private practice of law than she. Do you (or George Will) do minimal research before tossing off these insults?

A cemetery is a public place, despite the private grief expressed there. But even if Westboro Baptist has a constitutional right to this sort of rude and unwelcome free speech, don't communities have the right to create local legislation limiting the expression of that right? What if the community said that for nominal fee ($2 for the day) the cemetery was rented property for that period of time. Would that put it off-limits to protesters?

Of course, just because we have a right to something does not mean we must always avail ourselves of the right. We may have a right to be unkind or rude, but we needn't pursue the right. That is a matter of self-government and living civilly within community. I do not see that it would be a good for the federal government to determine what is rude and unkind and what is not. That seems the road to prohibiting "hate speech" -- do we really want criminal penalties for self-expression like this, not matter how foolish or ugly?

If what the Westboro Maniacs are doing is protected by the First Amendment where does it end? Can I start protesting at the funerals of college students because I don't think the federal government should be in the college loan industry? Can Right to Life protest at the funerals of medical workers who happen to work in medical facilities where abortions are conducted? And whatever happened to the once much-vaunted Right to Privacy?

This is not Justice. The Supreme Court, and the American court system in general, has become a formalistic, soulless institution indeed if something so evil is ruled in favor of by an 8-1 margin.

When the Court declared that Freedom of Expression was synonymous with Freedom of Speech, they created an ugly monster without limits.

Can the Westboro Baptist Church protest the government's foreign policy without invading private religious ceremonies of private citizens? Yes. Case closed.

If what the Westboro Maniacs are doing is protected by the First Amendment where does it end?

If they are being legally prevented from doing so, where does that end?

Can the Westboro Baptist Church protest the government's foreign policy without invading private religious ceremonies of private citizens?

The protesters were standing 1,000 feet away. In what sense does that constitute "invading"?

Let the members of the WestBoro Baptist Church (church - Ya, right) speak and protest all they want. They will come to a bad ending a some point because the Supreme Court is really not in charge. The Supreme Being is and He will take care of it. In all due time and in His way.

Have you even read the opinion? It quite explicitly explains why this is NOT the mushy freedom of expression of the pasties and porn cases but is part of the core freedom of political speech. You may not agree that this speech qualifies as political speech (though I'm not sure how). Or you may not agree that even political speech shields this kind/level of abuse. (This is Justice Alito's position.) But the least you can do is actually address the arguments made.

@Kate. Some cemeteries are publicly owned, some are privately own. But none could be reasonably considered "public forums" under the Court's free speech jurisprudence. However, the Westboro maniacs never entered the cemetery but remained outside on a public street, were following the local laws, and were peaceful, which makes it a different story.

Thank you.

We can protest Westboro Baptist protestors all we want. We have that right since they have the same right. No matter how much we dislike the situation and the silly, misdirected protest, those people have a right to free political speech and we have to protect that right if we wish free political speech for ourselves. How would the Supreme Court decide otherwise? Free speech, freedom of assembly -- we've got a right and so do the nutcases at Westboro Baptist Church.

What would the penalty be for the protestors? What would you guys like to see the federal government do to them? Prison? Fines? I don't even want the IRS to revoke their tax-exempt status, as that could extend to churches whose stand on abortion became offensive to -- someone.

As private people we can write letters to Westboro Baptist Church and try to persuade them of the error of their ways. Heck, we can organize protests of their church as long as we stay off their property. Right? Heck, maybe if we all ignore them they'll go away.

I'll give a cheer to cowgirl on this one. Those poor boneheads are God's problem. I don't want a US judgement on them; that giveds too much power of discernment to the federal courts. We are stuck with loathing them. Tea Party protestors, abortion protestors, any other kind of poltical protest could be next if we open that door.

You don't find intentionally traveling from Topeka, Kansas to Maryland in order to attend private citizen Lance Corporal Snyder's funeral and standing as close to the ceremony as local authorities would allow them with signs reading "You're Going to Hell" and "God Hates You" to be intrusive? Agree to disagree, I guess.

No, the Court did not use "freedom of expression"--but how does this theater count as political speech? Does printing a campaign flyer make a death threat (on the other side) political speech? As for Meiers, I defended her selection initially (having done "minimal research") but was persuaded by those who knew her and her own self-destruction that President Bush placed his trust in the wrong nominee.

The freedom of expression was kind of a reply to Kate (but mainly because I think it's undefinable and ridiculous). But since you're in a "just the facts" mood:

From the opinion of the court: "But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech."

The court held that because WBC's speech was political in nature and because they acted peaceably their protest is afforded the special protection of the First Amendment.

Court: "On the facts before us, we cannot react to that pain by punishing the speaker."

In other words, under different circumstances, they could have punished the speaker (they noted several technicalities which weakened Snyder's case). Were the circumstances different, according to the court, Mr. Snyder would have won in spite of the special protection afforded the WBC's political speech.

From the concurrence: "... suppose that A were physically to assault B, knowing that the assault (being news-worthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means."

I believe that is essentially what happened here and that a private citizen's funeral was exploited in order to gain publicity for what would otherwise be protected speech. The dissent believes this is exactly what happened and explains why in detail.

From the dissent (responding to Justice Bryer's concurrence): "This captures what respondents did in this case. Indeed, this is the strategy that they have routinely employed—and that they will now continue to employ— inflicting severe and lasting emotional injury on an ever growing list of innocent victims."

Indeed, they may continue doing this and will because it gets them publicity. As Justice Alito noted, they did so at the funeral of the 9-year old girl who was killed at the AZ massacre.

Dissent: "The First Amendment allows recovery for defamatory statements that are interspersed with non-defamatory statements on matters of public concern, and there is no good reason why respondents’ attack on Matthew Snyder and his family should be treated differently."

Exactly. The problem here is the court is giving blanket protection to the WBC, even though signs such as "You're in Hell" are clearly directed at the deceased (a private citizen) and thus not protected by the First Amendment.

Dissent: "If the First Amendment permits the States to protect their residents from the harm inflicted by such attacks—and the Court does not hold otherwise—then the location of the tort should not be dispositive. A physical assault may occur without trespassing; it is no defense that the perpetrator had 'the right to be where [he was].'"

As the dissent notes elsewhere, the WBC could have done this in thousands of different locations - from the White House to the Supreme Court, to any number of state and local courthouses and assembly halls, but instead they chose the funeral of a private citizen.

The Supreme Court got this wrong. You should not be allowed to terrorize private citizens simply to gain publicity for your political speech. An injustice was done to the Snyder family.

It is truly sad what has happened to the First Amendment's guarantee of free speech. Originally, it was intended to protect political speech, meaning speech which is part of the deliberative process leading to the making of laws or the setting of policies. In the hands of Progressive Supreme Court justices, beginning nearly a century ago, it became a license to advocate doctrines totally at war with republican government, not to mention free speech, so long as no violence was advocated or resorted to. That was odd because the Communists, Nazis and KKKers whose speech was so gratuitously protected, resorted to violence almost as a matter of course. If that wasn't bad enough, free speech was stretched to cover otherwise immoral '"expression," doubtless because the likes of Assoc. Justice William O. Douglas had perverted tastes. (He actually wrote that the "articles" in girlie magazines contributed to greater public understanding of sexuality.) And then there was a Left's new-found concern for the evil of "hate speech," which turns out to be any speech of which it disapproves. Then the Right, failing to appreciate or acknowledge the corruption in constitutional law which the left had wrought, glomps onto the rump of what passes for free speech in order to carve out constitutional protection for its views, which by any reasonable understanding don't rank as obnoxious, except to the Left. The more we connect free speech to the maintainance and perpetuation of republican government, the more healthy an understanding of free speech the nation will have. As it is now, free speech is merely anything even remotely connected to public things, no matter how destructive it is to effective deliberation and to the friendship of fellow citizens for each other. Frankly, I don't know what can be done to repair the horrendous damage that's been done to the great good of public discourse, but at least we can be honest about what a disaster we have on our hands.

Minor point, but Breyer is not exactly the go-to guy on affirmative action. The dissents not in Gratz (undergrad case) but in Grutter (the Michigan Law School case) made the better case against affirmative action. Race should not be the measure of any citizen's rights under the Constitution.

Agreed, I was only voting his dissents (maybe the only ever) from liberal orthodoxy.

The Constitution does defend even offensive speech. At the same time, the Supreme Court seems wrong when they allow commercial speech to fall under criminal laws when it is offensive. The Supreme Court has an uneven interpretation of the Constitution, where whether or not pay is involved seems to be the defining principle whether offensive speech is either subject to fines or criminal actions.

You don't find intentionally traveling from Topeka, Kansas to Maryland in order to attend private citizen Lance Corporal Snyder's funeral and standing as close to the ceremony as local authorities would allow them with signs reading "You're Going to Hell" and "God Hates You" to be intrusive? Agree to disagree, I guess.

I find lots of things intrusive, as well as annoying, irritating, offensive and outrageous. This is not sufficient grounds for making them illegal.

In any case, you used the word "invading" in your original post. If your definition of an invasion is standing 1,000 feet away and shouting obnoxious slogans, then it's a good thing you weren't at Normandy.

The Supreme Court that is willing to ban this form of political protest would not, I believe, hesitate to ban aggressive protests outside abortion clinics on the grounds that these are "instrusive" to the women seeking to end their pregnancies.

Your point about what you advocated when is irrelevant. You gratuitously insulted Harriet Miers. She was not and is not an 'unqualified crony'. She was a member of the elite bar of Texas. It was a financial sacrifice for her to serve as Counsel to the Governor, Counsel to the President and on the Dallas Board of Education. One can also wager these positions were less challenging that representing Disney and Microsoft in court and superintending a firm with several hundred lawyers in it. If you wish to insist that the court does not benefit from the addition of someone whose forte is corporate or commercial law, do so. If you wish to argue that a Justice must have been a judge previously, go ahead (just realizing you are taking out the late Mr. Justice Rehnquist in the process). Just quit lying about who she is.

Fair enough, I used the wrong word.

And they already do ban protests outside abortion clinics.

Were this a regular political protest, using gay slurs against the military and Catholic priests, at a public venue the likes of which they used, it would be afforded the special protection of the First Amendment. However, they targeted and exploited the death of a private citizen for their personal gain. Again, personal attacks against an anonymous private citizen have never been protected speech, and shrouding such attacks in protected political speech should not save them from tort liability for the damage they caused.

Meiers was not the only crony President Bush hired, and these people did not serve him well. In his defense, he thought he was nominating a sure pro-life vote, but she simply does not measure up as a Justice.

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