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Snyder v. Phelps, et al. (09-751): The Limits of Free Speech and Religion Under the U.S. Constitution: When Two Noses Meet, Who Wins? How About a Compromise?

By Andis Kaulins

U.S. Supreme Court argument was held yesterday, Wednesday, October 6, on the free speech case of Snyder v. Phelps, et al. (09-751), involving a Baptist Church in Kansas that pickets private funerals of other churches as a means to advertise their own particular political message.

Why is a relatively simple case like this -- involving invasion of the private rights of others and misusing tax-exempt religious standing to push personal politics -- so difficult for many in the legal profession to handle?

We see two reasons: 1) intellectually deficient precedents such as the terrible Supreme Court decision in Hustler Magazine v. Falwell, and 2) a basic misunderstanding of the purposes of the law and the Constitution of the United States as regards freedom of speech and freedom of religion.

Where in the Constitution does it say that the rightful exercise of the "freedom of speech" includes speech that intentionally inflicts foreseeable harm upon others in forums where that speech is totally out of place given the purpose of the forum?? Our rule here would be a simple one: you are free to say what you like, but if your speech inflicts intentional harm on others in forums where such dialogue is out of place, then you must take responsibility for that and face the consequences. FREEDOM does not mean "without" responsibility, but quite the reverse, "with" responsibility.

Where in the Constitution does it say that the rightful exercise of the "freedom of religion" includes political picketing and the use of tax-exempt religious status to harass others?? Our rule here would be a simple one: religion is what happens inside the church -- believers pray to THEIR God there -- everything outside that church is in fact and should be treated as politics, and as not being tax-exempt.

Otherwise, as is happening worldwide today, religion is merely an alter ego for the underlying political body, and is being used as an excuse, indeed even as a woeful justification, for the trampling of human rights everywhere. When believers pray to their God, that is religion, and that is what the Constitution protects. When these believers start to push and proselytize others, that is politics, and should be treated like any other political and commercial activity, including without exception, FULL taxation.

When I was growing up, the basic principle about human rights that appeared to be applied among civilized human beings was that: "Your rights end where the other guy's nose begins". The "nose" in that old saying is intended not only in the physical, bodily sense but also in the abstract sense as the full panoply of protected rights that others also enjoy. When confrontations of rights occur, compromises must be made.

No compromise is visible in cases such as Hustler Magazine v. Falwell, where the majority opinion -- not a single dissent! by a court wearing rose-colored glasses -- is marked by a profound theoretical one-sidedness to the evils that are published every day. No effort was made to reach a viable, necessary, compromise solution on the competing rights and human rights of the parties, where such a compromise would have been best for all.

We have no trouble with a caricature or parody which makes fun of things that have actually happened. But to permit as free speech such hateful parodies as in the Hustler-Falwell case -- which were not humorous portrayals of things that actually happened at all -- is a travesty of justice and sign of law at rock bottom, in the worst kind of Constitutional sludge imaginable. Permitting that kind of character assassination as free speech makes a mockery of the law, celebrating limitless free speech on the one hand and relegating all other rights to zero. That is not our idea of how the law works, or should work.

Any exercise of an alleged right by one party which inflicts unnecessary and avoidable harm to other parties under the sham cloak of "freedom of speech" or "freedom of religion" should be viewed with a jaundiced eye.

The Constitutional right to be able to voice one's opinions in appropriate forums and to believe as one wishes in a congregation of believers has, unfortunately, been overextended by well-meaning judges and legislators, not to mention libertarians blind to the realities of the actual world, to include a host of harmful activities that -- in this writer's opinion -- should not have been and should further not be afforded any constitutional protection.

In the instant case, as Lyle Denniston writes at SCOTUS blog:

"[T]he particular funeral they targeted was the final rites for a Marine killed in a war zone overseas. It will surely test the Court?s perception of the First Amendment?s tolerance for harshly controversial speech...."

That is an understatement. As Denniston writes further:

"[Members of Westboro Baptist Church of Topeka] picketed, holding signs that read, among other similar messages: "Don?t Pray for the USA," "God Hates Fags," "God Hates You," "God Hates America," "Semper Fi Fags," "Thank God for Dead Soldiers," "Priests Rape Boys." They did not disobey local laws or police directions."

How would that same Baptist Church enjoy having hordes of demonstrators from non-Christian churches picket comparably in front of their congregatational meetings and activities? Free speech? Free religion?

The form and process of a religious funeral, as in the instant case, is ALSO an exercise of free speech and free religion, which is also protected. When such a traditional human rite is exercised for the express specific purpose of honoring the deceased, then it should not be the right of anyone or any religion to disturb that rite for political or competing religious reasons, whether under the sham cloak of religion or not. 

Numerous organized sects and churches under the sham of religious observance have become a tax-exempt and thus government-supported means for people to attempt to impose their will on others by a variety of means known to all. This case is just another sordid example, here in the case of a Christian sect.

Although it will be difficult for the theoretically-inclined Justices of the Supreme Court to jump over their reality-removed shadows, they should consider seriously a free speech standard that limits the exercise of such speech to proper forums, under the principle that, YES, you have a right to your opinion and can exercise that opinion where appropriate, but not everywhere, NOT EVERYWHERE!

Full post as published by LawPundit on October 07, 2010 (boomark / email).