Wednesday, April 07, 2010

Protecting Free Speech

Over at Facebook there is a new group whose purpose in life is to end the shenanigans of the Westboro Baptist Church and any of its relatives, spiritual and otherwise. The WBC is (in)famous for its public protesting at the funeral/memorial services of fallen military. They assert that God is punishing the US for its lack of moral rectitude for tolerating homosexuals by allowing the deaths of our soldiers in combat. They are loud and visible, which only exacerbates the grief of the mourners. Some families got court orders to keep the WBC a distance away from the rituals and, in some cases, motorcycle clubs have acted as physical barriers between the WBC and the mourners. Finally, the WBC was taken to court and, surprisingly, prevailed on appeal.

Albert Snyder sued the WBC for defamation and infliction of emotional distress. Snyder prevailed at trial, but WBC prevailed on appeal and now the whole thing has been dumped in the Supreme Court's lap. And what does this have to do with the Facebook group? They want to institute a Constitutional amendment to prevent such activities at military funerals if the Supreme Court rules in WBC's favor on 1st amendment grounds.

OK - I think WBC is despicable and if there is a hell then Fred Phelps will no doubt occupy a special place in it, along with his many minions. But, like it or not, his right to say hurtful things is not necessarily something that requires an amendment to manage. Where would you stop if an amendment is pursued and passed? What other speech would be banned? What would be the basis for drawing a line? Hurt feelings? Because that is what we are talking about here; emotional distress. The defamation part of Snyder's suit went bye-bye and the remaining issue was infliction of emotional distress.

We don't know the Supreme Court's collective mind on this issue, and we won't until they render their decision. But if the ultimate effect is that WBC continues their picketing and noisemaking, then that is the decision. If the laws governing speech need to be redrawn to manage the WBC, and others like it, then redraw the laws. There are already laws regarding libel and defamation, and Maryland apparently has one regarding infliction of intentional emotional distress. Tinkering with the Constitution, while attractive on its face, is not the answer here. If we tinker with the Constitution just because we don't care for the antics of a particularly obnoxious group then we demean the document and its reason for existence.

The Constitution was not written to deal with the (relatively speaking) petty squabbles between opposing groups. It was written to provide the outline of how civil society acts and manages itself in this country. That includes protecting speech. Laws have been passed, and deemed constitutional, that limit speech under specific circumstances. My recommendation is that those who would silence, or at least restrain, the WBC look to other legal avenues for redress. Leave the Constitution alone or you may get more than you asked for, to the detriment of us all.

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