Before I go off spouting my opinion, I'd better tell you the facts. The controversial Westboro Church lead by Fred Phelps has found a new way to make the paper. For those of you unfamiliar with this church, these are the confrontational people who protest against gay rights at almost every junction possible. They made national headlines protesting outside of the Matthew Shepard murder trial with signs of their catch phrase, "God Hates Fags."
In an attempt to get even more media attention, they have made a practice of showing up at military funerals, despite the sexual orientation of the deceased, with their cavalcade of characters shouting and prancing around in an effort to "promote" their views. Apparently this tactic did not sit well with the family of fallen marine Matthew Synder, which slapped Phelps and the gang with a lawsuit. After originally receiving a judgment for the Synder family of $10 million, Phelps has how appealed all the way to the SCOTUS on the grounds that the suit violated his First Amendment right.
Now that I've gotten through that let me get to the meat of the argument. The Supreme Court has, as it usually does with the Constitution, added many dimensions to the first amendment which originally were never intended. Through cases they have determined that there are multiple forms of speech and not all of them are protected under the First Amendment. For example libel, obscenity, and "fighting words" are considered unprotected speech and can be regulated. For everything else the court has reserved the right to apply "strict scrutiny" based upon whether or not there is a "compelling state interest" in abridging free speech. The best example is the classic "fire in a theater" story.
Based upon this case law, it is very hard to determine how the court will swing in this one. I believe, though I'm emotionally against it, that Phelps will be vindicated in this case. While I completely disagree with his motives, actions, and having to refer to this man as human, he did nothing speechwise that would fail the scrutiny test of a "compelling state interest" and therefore allow the state to ban such practices. My thoughts are simply that it truly depends on the character of the event in which he attended. It was a military funeral, therefore there could be an argument that it was a public event because of its state sponsorship. On the other hand a funeral, despite who is paying for it, is intended to be a private event for those to mourn the lost.
There is also an argument that this can be categorized under "fighting words." Phelps' conduct usually involves the use a bullhorn, getting in people's faces, and shouting at people condemning them to hell. Therefore the conduct of group could be seen as without political merit and solely to try to instigate violence -- making it unprotected.
However this case goes, the unspoken consequence of banning this type of speech could give the state the ability to block similarly controversial protests. While I cannot endorse the homophobic rants against the mourning family of a fallen Marine, if banning that denies me the right to protest wars, or government in general, I'll let the guy shout his stupidity. My Contstitutional law professor at SUNY-Fredonia always had a saying for something like this: "Bad cases set bad precedents." I'm sure we'll see more of this in this case, though I don't know how much worse they could get.
"Amendment I
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."
"Article III, Section 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; - to all Cases affecting Ambassadors, other public Ministers and Consuls; -to all Cases of admiralty and maritime Jurisdiction; -to Controversies to which the United States shall be a Party; -to Controversies between two or more States; (between a State and Citizens of another State; )* -between Citizens of different States - between Citizens of the same State claiming Lands under Grants of different States, (and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.)*"
* Changed by the Eleventh Amendment.
Under the Constitution only the Congress may make law. On the subject of Free Speach any law is an abridgement. This is so because Government lacks the capacity to make anything free.
This is widely misunderstood. The Government cannot make anything free because it is against the laws of physics for ANYTHING to be made 'free'. Specifically it is contrary to the Law of Conservation of Energy. Any product or service the Government might choose to offer cannot spontaneously spring into existence on the government's demand.
Rather, someone must create the good or service. When they create it, they expend energy - thus the good or service is not free. It costs energy, effort, resources. And the Government may only offer the good or service to some at no cost by means of expropriation of that labor or resource without recompense from those who produced it - ergo by means of slavery.
This fact is widely misunderstood because Government is the province of Politics, while the Law of Conservation of Energy is the province of physical reality, and the study of physical reality. So, whatever proclamations individuals or governments may make, we must understand that those proclamations have no bearing on the laws of they physical universe.
To claim otherwise is to suppose a state of existence which is in controvention to the observable and independently verifiable facts of existence. We know this because we know that the laws of physics are not permeable to the whims of ANY human, politician or otherwise. And such a supposition is the very definition of the term 'insane'.
Because the Government cannot make anything 'free' - to cause to come into existence without sources or resources - it cannot make speach appear by that means either. Thus, any law the Government makes with regard to free speach can only reduce - ergo abridge - the speach which existed before its intervention.
And, as under the Constitution, Congress is restrained from making laws on the subject of Free Speach, and the United States is created by the Constitution - having previously been a Confederation of States, there can exist no Law under the united states on the subject of Free Speach other than the Constitution itself - as already referenced.
And as there can be no Law under the Constitution, which also means under the Laws of the United States, nor any treaty, on the subject of Free Speach, under Article III Section 2 the Supreme Court can have no standing in any case on the subject of Free Speach except to restrain Government when it has made itself a party, in accordance with the Constitution.
Being that in Snyder Vs Phelps the Government cannot be said to be either Snyder or Phelps, and that the site of the issue in the case was a private cemetery, and that the case was heard by the courts of the State of Maryland and not by any Court arising under the Constitution or under the United States, the Government cannot be said to be a party to this case at all.
The Constitution in Article III Section 2 CLEARLY ENUMERATES the field of the Supreme Court's jurisdiction. But EQUALLY CLEARLY Article III Section 2 is SILENT with regard to suits between individuals in the SAME STATE UNLESS the Government is a party to the suit.
Therefore, if we accept that the Constitution is Law, then we must conclude that the Constitution specifically excludes itself and all its creatures from interfering in the matter of Snyder Vs Phelps.
Otherwise, if we do not accept that the Constitution is Law, then the argument is without meaning. For if the Constitution is not Law, then there is no Government, no United States, and no Supreme Court.
..but I will defend to the death your right to say it."
Lance Cpl. Matthew A. Snyder died to protect the rights of all Americans, including the disgraceful Phelps. Freedom of Speech means that someone, somewhere, is eventually going to say something disgusting, and yet the freedom of that slob to say his or her peace codifies my right to speak against it. Freedom can be ugly, but there is no middle ground.
It's sad that the Westboro-bigots insist on spreading their hatred, but while I can only imagine the fury that must have been rife throughout the Snyder family that day, I'm saddened more by their inability to see the true beauty of their son's sacrifice; that he died to protect all of us, even the basest, most hateful (one might say, especially the most hateful) among us..
Thank you, Marine, and may you rest in peace.
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