God Hates Hate

My brother-in-law and I were discussing yesterday's jury judgement of $11 million dollars against an anti-gay church that picketed the funeral of a soldier who died in Iraq, and we were discussing whether or not the church group's First Amendment rights were violated by the jury verdict and award.

Now, I've posted regularly in discussions on Slashdot that a lot of people do not understand what "Freedom of Speech" or even "Freedom of Religion" mean, because they think these are absolute terms. But the Supreme Court has regularly ruled that these are NOT absolute. You can't intentionally incite a riot or panic, your municipality can enforce noise ordinances, and cities can require you to obtain permits for public gatherings above a certain size (i.e. park protests or protest marches). And that's just speech.

Prostitution was a key part of being a priestess of Ishtar in the temples to Ishtar in ancient Babylon. So a woman declared herself a priestess of Ishtar and started having sex with men in exchange for "offerings to the goddess". She went to jail and her conviction was upheld on appeal. Unnecessarily cruel animal sacrifice, polygamy, child molestation... all of those have had someone say it was a religious practice protected by the First Amendment, all of those arguments were struck down by the courts, and all of those people had their convictions upheld.

So now we get to the Westboro Baptist Church and whether their protest was protected by the First Amendment. The article says: "Their lawyer Jonathan Katz said the funeral was a public event and their actions were protected by the constitutional rights to free speech and religious expression."

First, let's discuss the concept of "fighting words". This is a concept where the Supreme Court stated in a 9-0 decision: "insulting or 'fighting words', those that by their very utterance inflict injury or tend to incite an immediate breach of the peace" are among the "well-defined and narrowly limited classes of speech [which] the prevention and punishment of...have never been thought to raise any constitutional problem."

That comes from a 1942 decision and later decisions have narrowed the definition of "fighting words" so that acts that merely make you mad because you violently disagree with them, like burning the flag, remain protected. Still, picketing someone's funeral with signs that state "Thank God For Dead Soldiers" and "God Hates Fags" might merely be offensive to the general public, but can be construed as intentionally inflicting injury on the families of those dead soldiers, and thus constitute fighting words when the families are present.

This is sort of a fringe argument, though. As demonstrated by these examples, getting speech ruled as unconstitutional fighting words has been very difficult ever since the doctrine was introduced. Still, I'm sure that the attorney for the plaintiff will include it in his brief to the appeals court.

Another element to consider is that certain rights trump other rights. The main argument of the family's lawyer was that the the church's actions violated the family's right to privacy. By violating the family's right to privacy, the church lost its First Amendment protections in that instance. The church argues that a military funeral is a public event and that the family had no right to or reasonable expectation of privacy.

In this case, the challenge is whether the military funeral for Lance Corporal Snyder was a public or private event and what rights the family had to grieve without disruption. Now, on a gut level, you say that parents grieving for a child should be entitled to a certain level of privacy, even if the funeral holds some level of public interest. But one of the reasons we may agree with this statement is because the protesters were so offensive to us.

What if a soldier who was court martialed for killing babies, but got off on a technicality, was being buried in a military cemetery? What if the protestors were decorated war veterans, protesting against a dishonorable baby killer being buried among their fallen comrades. Should the family of the baby-killer have the right to sue the veterans for violating their privacy?

I'm not saying Lance Corporal Snyder was a baby killer or anything anywhere near that. I'm not comparing him to one. What I am saying is that we feel sympathy for Lance Corporal Snyder's family, while in the other instance we might feel sympathy with the war vets. But the law can't be based on who we feel sympathy for. If we let the soldier's family sue the hatemongering church, then we have to let the baby-killer's family sue the decorated war vets. We have to say that the event (military funeral) trumps the circumstances, and whether you agree with it or not, you have a legal obligation to let the family grieve in peace.

Now, I'm not saying that the courts will agree that the event trumps the circumstances and state that protesting a military funeral is not protected speech. By virtue of being military, the funeral is politically charged, and might lose some privacy protections because of it.

Viscerally, an $11 million award against this church feels good, because it punishes a bunch of jerks for being jerks. And most people, even if they believe homosexuality is a sin, think these people are jerks. But in America, you have a constitutional right to be a jerk (to an extent). The question for the appeals court is probably going to come down to whether they went beyond the extent of their right to be jerks, or if the right of these parents to grieve in private trumped their rights to be jerks in that place at that time.

I believe that God hates hate and that these protestors are sorely mistaken. But whether they're civilly liable... that's a lot less clear cut.

This entry was posted on Thursday, November 1st, 2007 at 5:25 pm and is filed under Politics & Religion, Society.You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.