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The Dying First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Very familiar stuff. Or it should be, it’s the first amendment to our constitution. The part I’m concerned with today is the speech clause. Congress shall make no law abridging the freedom of speech…unless.

Unless it’s cross burning; unless the cross-burning is intended to be ideological. Or campaign financing. Or “hate crimes,” which is vaguely dissonant on its face. Or, in some cases, if it’s speech that minorities might find offensive. But, the first amendment continues to protect the important stuff, like nude dancing, and advocating the violent destruction of government property. It also used to prevent the government from setting up certain groups as deserving special treatment under the amendment. That may change, if today’s hearing was any indication.

Today was oral arguments involved a church, whose members picketed military funerals, and the father of a Marine killed in Iraq by adherents of a religion of peace. The church, and I use that word with some reservation, pickets the funerals of service members killed in the war, and says that the deaths are “God’s judgement” upon a sinful nation. They hold up signs with some offensive things written on them, and they shout out the same things at these funerals. It should be noted that the dead in these funerals are the rank and file, not policy makers, who never go to war anyway.

So the father in this case, was burying his son, when the Westboro Baptist Church show up. They start waving their signs, and yelling their inanities, while Mr. Snyder tries to peacefully bury his son. They yell about gays, and immorality, and abortion, and how these war deaths are God’s punishment for our sins. They are one rock thrown away from being our own little Taliban.

So Mr. Snyder, in an admirable show of restraint, waits until after the funeral and sues the church. Mirabile dictu, he wins. To the tune of 5 million bucks. The appellate court throws it out, Snyder appeals, and the Supreme Court agrees to hear the case. The question is, just how far does the first amendment go when it comes to dead military members and their parents.

Apparently, the Supreme Court justices are sympathetic to curtailing the amendment’s protection, suggesting they would like to rule for the father against church members who picketed his son’s funeral. While politics may create odd bedfellows, this case is certainly doing it. Justices Alito, Ginsburg, and Kagan all seem to be looking for something to hang a ruling on. Odd fellows indeed!

Margie Phelps, arguing the case for her family’s Westboro Baptist Church, said the message of the protests at military funerals and elsewhere is, “Nation, hear this little church. If you want them to stop dying, stop sinning.” It certainly puts one in mind of Warren Burger’s assertion that “the courtrooms of America all too often have Piper Cub advocates trying to handle the controls of Boeing 747 litigation.”

The justices asked repeatedly whether Snyder had any recourse. They seemed to be largely reluctant to embrace the idea that people are generally free to say what they will. That is, of course, free to speak as long as they follow the strictures mentioned above. If I had to guess, I would expect the Supreme Court to find rather narrow grounds to reinstate the verdict. And along with that, another nail driven into the coffin of American freedom.

Categories: Uncategorized
  1. October 28, 2010 at 10:39 pm

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