Freedom of Speech

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. First Amendment~

Freedom of Speech came into the spotlight once again last week as the Supreme Court handed down a verdict in the case of Snyder v. Phelps.  The Westboro Baptist Church, led by Mr. Phelps, is known for protesting anything that stands for LGBT-equality but also for protesting the military funerals of our fallen soldiers.  Communities and states have rallied over the years to enact laws that give those from the WBC a time and place where they can protest without interrupting the services of our fallen soldiers.  But that still hasn’t stopped various lawsuits from going forth against the WBC to try to get them to stop altogether.  But the Supreme Court has ruled (8-1) that the protests are protected by the First Amendment… the Freedom of Speech.

I would tend to think that there are not too many people that like what the people of the Westboro Baptist Church do.  In fact, the congregation is mostly made up of the Phelps family… and probably some confused, narrow-minded people.  At least locally, media coverage of them protesting a military funeral is close to nothing at all… which is probably as it should be since they probably want all the media attention.  And the local LGBT-community is not afraid to stand up to their protests and counter-protest their hate speech with that of love.

When the verdict was announced, most people I know where outraged.  But where others were giving in to their hatred for the WBC, my mind started to think.  Sure, my opinion of the WBC and those that believe in what it preaches is the lowest of all lows, but do they have the right to freedom of speech with the message they are sending out to people?  I surely thought so.  Freedom of Speech is Freedom of Speech, whether we agree with it or not.  Right?  Not so fast.  Upon having a conversation with my friend Deborah that evening, who has studied constitutional law, there is more to this.  And this entire issue is not as cut and dry as one might think.

In the case of Chaplinsky vs. New Hampshire, the Supreme Court ruled that the First Amendment does not protect against what it called “insulting or ‘fighting words’ — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” (315 US 568, 572 [1942]) Chaplinsky was a Jehovah’s Witness who had been arrested by a New Hampshire town marshall after he tried to prevent Chaplinksy from preaching… after which Chaplinsky spouted off by saying “You are a God-damned racketeer” and “a damned fascist.”

If you had noticed earlier, I said that the verdict was 8-1 in favor of the WBC.  It was Justice Samuel Alito who dissented… and it was on this very clause that he did so.  Justice Alito said that the WBC was not protected under freedom of speech because he likened the protests to fighting words and of a personal character.  The other 8-justices disagreed ruling that the attacks were protected because the attacks were public and not personal and that there are local laws that can shield those attending the funerals from the protesters.

A point I want to make with this last piece of the majority’s reasoning.   Just because local laws are in place that can tell the protesters where and when they are allowed to protest, that shouldn’t be used as part of the ruling.  This wasn’t so much a case that was challenging the local laws, this was a case that challenged whether the WBC had the right to protest and say the things it was saying.

Other than the “fighting words” judgment from the Court in 1942, I also can’t help but think now of defamation.  This was something that was taught to me in my Media Law class back in college, and to which my college professor would probably be proud that I remember this.  Defamation requires an allegation of a fact that is actually false and harms the reputation of an individual.  This can come in two forms… spoken slander or written libel.  Could it be considered defamation when the protesters of the WBC hold up signs with the deceased’s name on it and saying that that particular person in in Hell.  Technically, they don’t really know where we go when we die and where this particular soldier’s soul is, and they are harming the reputation of this fallen soldier.  Defamation is also why you can’t claim freedom of speech when you put up a huge billboard along the interstate claiming your ex-boyfriend/girlfriend is a child molester or a rapist when they are not.  So there are limitations as to what you can say or write about people.

So, did the Supreme Court get this decision right?  My initial reaction was yes, but after further reviewing case jurisprudence, I think my answer does switch to the negative.  It would appear that I agree with Justice Alito that the attacks are very personal in nature.  And I might also add that some of what is being said and written borderline on defamation of character.  But what do you think?  Are the protests of the WBC during military funerals protected under the First Amendment’s Freedom of Speech or do you think later Supreme Court decisions restrict them?

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One Response to Freedom of Speech

  1. Deborah Mraz says:

    Very well done James!! I especially enjoyed the fact that you brought up the ‘why’ of the eight justices who gave the majority opinion because their reasoning was not in line with the way our laws and our courts are set up; Local Law trumps City Ordinance, State Law trumps Local Law, Federal Law (read SUPREME COURT RULING) trumps EVERYONE therefore, the Local Law should have had nothing to do with the ‘why’ of the opinion of the majority as Local Law is NOT precedent setting.

    I like the defamation reference!!! The only problem with the ‘soul’ issue is that it was established in United States ex rel. Gerald Mayo v. Satan and His Staff, the District Court for the Western District of Pennsylvania ruled that “the plaintiff has failed to include with his complaint the required form of instruction for the United States Marshal for directions as to service of process.”

    In other words, ‘hell’ ‘satan’ ‘his minions’ (let’s not get into ‘his minions’ because that would make it a class action!) let’s stick to ‘hell’ and ‘satan’ without service of process to ‘satan’ and directions to ‘hell’ for the Process Server or U.S. Marshal you would not have a case…sadly…it’s one of those rights included in The Bill of Rights!

    But, let’s say the WBC folks said that the soldier was this or that (read gay or gay-lover or whatever it is that they like to say best) that IS defamation if it is untrue and the family could then sue for defamation of character!

    I say keep suing the Westboro Baptist Church, eventually Alito (God bless Alito!!) will be able to explain to his constituents why he dissented and why his disstention was correct!

    Deborah Mraz

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