by John Hawkins | March 2, 2011 2:04 pm
Although I’m disappointed that the Supreme Court didn’t choose to allow the $11 million verdict against Democrat Fred Phelps and his Westboro church to stand, it is at least, understandable. After all, they were at least staying within the confines of the law. They were protesting where they were supposed to protest and doing what everyone expected them to do.
It’s also hard to argue this point,
The justices by a 8-1 vote on Wednesday said members of the Westboro Baptist Church had a right to promote what they call a broad-based message on public matters such as wars.
Certainly, they have a right to say “God hates F*gs” all they want.
The real issue, one that appears to have been sidestepped by the court, is whether states can put laws in place that make it illegal to protest in certain ways or at certain times. In fact, they explicitly noted in the decision that they were not ruling on whether that could be done.
Maryland now has a law restricting funeral picketing but that law was not in effect at the time of these events, so this Court has no occasion to consider whether that law is a “reasonable time, place, or manner restrictio[n]” under the standards announced by this Court.
That should be a no-brainer. We require permits for protests in many places and, for example, if you tried to hold a loud 3 AM protest in a residential neighborhood, you’d be arrested for disturbing the peace. Would that mean your First Amendment rights were violated? No, certainly not. You have a First Amendment right to free speech, but that doesn’t mean you can say anything you want at any time you want. The classic example is that, “You can’t shout ‘fire’ in a crowded theater.”
The problem with this is that the Supreme Court has been inconsistent on the issue. You can see that in the way that they deal with flag burning. Personally, I agree with Judge Bork: There’s no constitutional reason that burning the flag can’t be banned,
Bork said he finds it “incomprehensible” that the court ruled flag burning is protected by the First Amendment. Justice Anthony M. Kennedy, named to the court after Bork was rejected by the Senate, cast a swing vote in Wednesday’s 5-4 decision. If Bork had been on the court instead, the 5-4 vote would have gone the other way, he indicated.
…”The flag is a unique kind of national symbol, one of the few symbols of our community,” Bork said on the ABC-TV program “This Week With David Brinkley.” “Preventing its desecration does not prevent you from expressing an idea.”
…But Bork, a former Yale University law professor, U.S. solicitor general and federal appeals court judge, said that Congress cannot overturn the court’s decision without amending the Constitution.
“I think there’s no way of curing this by statute,” Bork said. “I think the only way of curing this decision would be by constitutional amendment, which would really not be an amendment to the Constitution so much as it would be an amendment to some judges.”
If you hate America, there are a myriad of other ways to express that besides burning a flag. If you believe that, “God hates f*gs,” there are a myriad of other ways to express that besides protesting a funeral.
That’s why every state should pass laws banning funeral protests, wait for the Supreme Court challenge, and see what happens.
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