A New Test of Free Speech

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.

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