Private Solemnity, Publicly Expressed

Westboro Baptist Church protesters and Patriot...

Image via Wikipedia

The just-announced decision of the Supreme Court in the Westboro Baptist Church case is a bad one, in my opinion.  I think the behavior of Phelps’ group violates families’ fourth-amendment rights to be “secure in their persons” and is not much different from the oft-quoted prohibition against shouting “fire” in a crowded theater.

It is one thing to be free to express one’s opinion, but someone who decides to set up a soapbox and amplifier on the street within sight and sound of my house and go on a 4-hour rant would, IMHO, be violating MY rights.  So should it be for someone who invades someone else’s public ceremony being held for an expressed private purpose.

The USA Today article the decision noted Justice Roberts’ opinion that, “. . . there was no indication that the protests had interfered with the service.” This would indeed seem to be the crux of the matter, else why would Roberts bother to

Another way to do it, via Wikipedia

point this out? Clearly the dead veteran’s father felt interfered with, or he wouldn’t have been so upset as to sue.  It sure would have bothered me in his place, to have this group usurping the solemnity of the occasion for their own political purpose, which is what they did by planting their protest within shouting distance of the funeral.  Were other venues for freedom of speech available that would not have been disruptive?  Of course there were:  blogging, demonstrating out of sight and sound of the funeral, letters to the press and politicians, etc.

The Westboro group will now be emboldened and perhaps others as well.  The

Head bowed in reflection

Solemnity, by Andy Wilkes via Flickr

ruling, proclaimed “narrow” by Roberts, is now law.  But if the decision is “narrow”, then I ask, why couldn’t a restriction on demonstrating within sight and sound of a funeral be similarly narrow?  I don’t see how that would restrict anyone’s freedom of speech because of the other venues available, and apparently one Justice out of nine agrees with me.

But, the decision is made.  So be it.  I for one will be on the sidelines to cheer the VFW and any other group which chooses to interfere with the interferers.  Too bad the law can’t protect a simple matter of private solemnity, publicly expressed.

About Jim Wheeler

U. S. Naval Academy, BS, Engineering, 1959; Naval line officer and submariner, 1959 -1981, Commander, USN; The George Washington U., MSA, Management Eng.; Aerospace Engineer, 1981-1999; Resident Gadfly, 1999 - present. Political affiliation: Democratic.
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6 Responses to Private Solemnity, Publicly Expressed

  1. wingwiper says:

    I was fearful of this decision.

    What it might mean is that someone with nothing to lose will mete out their own form of justice against Westboro, in a permanent fashion that will constitute a truly “narrow” judgment.

    Why? Because neither self control and common sense nor the Supreme Court itself has proven capable of doing what everyone on the planet knows is right in this limited circumstance. Using that same rationale, as we converse right now, there are those who are using that Amendment to justify the spread of Sharia law within our borders.

    If it happens, I won’t lose a minute’s sleep over it, in either case.


  2. ansonburlingame says:

    To both,

    Obviously, based on my own blog, I support the decision. I won’t repeat those arguments or points herein.

    But I do draw a comparison.

    Watch videos recently shown of the Republican Senator attempting to make his way into the Wisconsin Capital to “do his job”. Now that was in your face free speech and certainly “looked” dangerous to the Senator and his staff. I also saw no cops around.

    In recent months some people, particularly minorities, and more particularly the black minorities may well have been “fearful” or certainly disgusted in the area of a Tea Party rally. Does that mean that such Tea Party rallies should be banned?

    The problem of course, and always has been, is how to distinguish when free speech “descends” to another level of vitrolic behavior and ultimately violence. In most cases such situations START with exercising free speech.

    It then becomes a challenge, for law enforcement and private citizens, to determine when and where to intervene against behavior, but no speech itself.

    Believe me, I detest the protestors at funerals. But I hold the same contempt for the protestors that I now see in Wisconsin, particularly those shown “screaming” inside the actual room following a vote by the Wisconsin Assembly on the Governor’s bill. Once the Senate in Wisconsin votes (and it WILL vote someday) we will probably see the same outrage expressed.

    But again, we have a very long tradition of allowing such outrage to be expressed. No videos of early actions by say the “Sons of Liberty” are available. And I am sure the owners of the cargo on the vessels at the first “tea party” did not like the cost of such outrage. Folks in big cities like Boston and NYC thought the Sons of Liberty were simple outrageous mobs. Bolshevics protesting in Boston in the early 1920’s were faced with the same public distain as well. Then fast forward to the streets of Cairo recently.

    Democracy is far more than free expression and elections. For Democracy to prevail it takes a very “mature” public, a public that can “yell all they want” but then have the faith in democracy that “good” will ultimately prevail through such a system.

    So this issue, along with many others occuring around the world today, brings that question into sharper focus. Are we in American today, still mature enough as a “people” to allow democracy to ultimately prevail?

    As the divide in our country increases, I am beginning to wonder about the answer to that question, today. But for sure the Supreme Court is going to “let the yelling” continue, as it should, in my view.



  3. Using the 4th Amendment in this context is interesting. I hadn’t thought to apply it here. I am curious to read Alito’s opinion. I can understand the 1st Amendment claims made here, but I’m intrigued by Alito’s willingness to break with the other eight. My guess is that he didn’t want the court to be unanimous in support of Westboro, but its also possible he’s carving out another interpretation of the 1st that differs with the others.


  4. Jim Wheeler says:

    @ All,

    I have been conflicted on this First Amendment issue since I posted it. I even had trouble sleeping last night because of it. I have an inner voice that nags me when certitude is incomplete, which it is in this case.

    I believe in the power of the First Amendment, including such things as the right to burn the flag of our country in protest over . . . whatever. I hate being on the other side of this issue. But in this Westboro case the source of my disagreement was its personal nature, that is, it appeared to be a personal attack on the soldier and his family. Why personal? Because the hate group targeted the time, place and participants of a private and ceremonial meeting. To me this made it personal, more of an attack akin to “fighting words” which enflame tempers than any kind of discourse.

    Now I’m no lawyer, and I do consider myself a law-abiding citizen, but if someone approached me and shouted noxious and defamatory epithets at me I would be likely to respond in kind and perhaps even be drawn into violence.

    Now it turns out that there is a concept in law called Intentional Infliction of Emotional Distress (IIED, for short). Apparently Justice Alito felt that this case was one of IIED and that coincides with my own feelings. The majority disagreed with Alito on the grounds that:

    “Westboro’s speech was at a public place on a matter of public concern.” And, as such, “that speech is entitled to ‘special protection’ under the First Amendment.”

    OK, that’s a legal gotcha. But, it seems like a misleading technicality to me, one that ignores the private and ceremonial nature of the occasion , i.e., a funeral. I say that such a nature makes IIED applicable and apparently Justice Alito thinks so too. And, it turns out there was other evidence that the Westboro group held specific animus for the Snyder family as well. Below is a link to a thoughtful essay on the subject.



  5. ansonburlingame says:

    WW and others,

    I have to go back to my “maturity” question again. If a group in Joplin protested with signs, screams, blocking traffic, etc (but no outright violence) in support of Shari Law, I would personally join a counter demonstration with my own signs, etc.

    BUT, I would not resort to rock throwing, in your face screaming, etc. At the end of the day I would rely on the “sanity” of the American people and “our” government, to prevail in that situation.

    Now fast forward to Wisconsin. For sure the protestors there and the unions behind them are NOT confident that our “people” and government will do the next “right” things. Thus they protest to the “limit” of American values, still “peaceful” for now, but…..?

    And thus again, my point. Are we as a democratic country losing our “maturity” today that is a direct result of the economic divide now very much upon us?

    And IF I am correct in thinking, yes, to that observation (which I do so believe), what can or should be done about it?

    If nothing else, President Obama’s ascendancy to high office has crystalized that divide today. For sure we had a divide during the latter Bush years, but NOTHING like the Tea Party and Wisconsin that I see today, two years after Obama promised to heal such divides. Even liberals I hope agree that our divide nationally today is much worse than in November 2008.

    And I don’t believe ANYONE today can predict where a real American majority might “come down and STAY DOWN” in the coming few years.

    BUT I am also absolutely convinced that until we the people accept a government that can and will “live within its means” pure economic laws will continue to aggravate the current divide until it becomes a chasm across which civil discontent might well not reach. Think of such as TWO CLIFFS so far apart that only…. will build a bridge?



  6. Jim Wheeler says:

    To all interested in the Westboro church flap, there is this statement by one of Fred Phelps’ 13 children:


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