Supreme Court Considers Two Major 1st Amendment Cases

Thomas F. Roeser

1. Snyder v. Phelps Free Speech Case.

The irony here is this: Do heartless, stupid attention-grabbers have the right to free speech even as they denigrate the funerals of brave men and women who have laid down their lives to protect that right? The eccentric sliver of Protestants who attend the Westboro Baptist Church of Topeka, Kansas maintain that the U.S. is paying the price for immorality including toleration of homosexuality by the wars which take the lives of soldiers, which is evidence of God’s wrath.

The church charges that by accepting the legislative enactment of “don’t ask, don’t tell” instead of flatly banning homosexuals, the military is guilty of perverting God’s standards and hence everyone who serves is guilty and those killed in war are testimonials to God’s judgment in punishing America. Interestingly enough the Catholic church is cited since it alleges that Albert Snyder, father of fallen Lance Cpl. Matthew Snyder taught his son to “defy his Creator by teaching him to support the largest pedophile machine in the entire world, the Roman Catholic monstrosity.” Snyder is asking the Court to uphold a jury verdict of nearly $11 million (reduced later to $5 million) for intentional invasion of privacy
I would hope the Court rules that however repugnant, the church has a right under the 1st amendment to protest. Any tinkering with the 1st amendment even in this matter could lead to Court punishment of all sorts of unpopular statements including, under the rubric of “hate speech” (which I abjure) repression of homilies and speeches as seen in Sweden and Canada—usually on the side of censorship of expression of Natural Law-guaranteed rights. “Don’t ask, don’t tell” is nothing more than a protection of privacy which we enjoy every day of our lives. Government should not have the right to pry into anyone’s private life.

It should be noted also that in the free marketplace of ideas where issues like this should be adjudicated, a group called “The Patriot Guard Riders”—motorcyclists who are military veterans—has organized to counter the ideas shouted by the Westboro-ites. There is another consideration that has to do with property rights. Assuming the cemetery is private property and the family purchased the burial plot, what Westboro is doing with its inflammatory signs (“God Hates Fags!” “Thank God for Dead Soldiers”) could amount to trespass. Therefore the city could impose a reasonable distance away from the gravesite for these protesters similar to what Dearborn, Michigan does during its Islamic Day celebration. The worst thing that could happen is if Court liberals, using this isolated outrage as pretext, nudge the door open for further government regulation of dissent.

In this controversy someone who favors government regulation of speech is bound to cite…and misquote…Justice Oliver Wendell Holmes’ dictum which purportedly held that freedom of speech does not give one the right to shout “fire!” in a crowded theatre. The correct version of Holmes’ now cliché-ridden opinion contains the word “falsely”—one does not have the right to shout falsely “fire” in a crowded theatre. If the place is burning down you certainly do have the right but not to mislead.

2. Sossamon v. Texas.

Texas prison inmate Harvey Sossamon sued the state of Texas because he was not allowed to use the prison chapel which he alleges violated his religious freedom. It is true that the Religious Land Use and Institutionalized Persons Act of 2000 protects the right of inmates to practice their faith and the 5th U. S. Circuit Court of Appeals ruled that Texas had violated Sossamon’s rights by preventing him from using the chapel….but. But said the Court, Texas is not responsible for paying Sossamon damages. The Prison Fellowship argues, however, that by denying Sossamon the state cut him off from resources he needed to help him reform his life. The National Association of Evangelicals and the U. S. government filed briefs supporting him (Justice Kagan has recused herself).

I’m with the 5th Circuit. Chapel visits are not necessary to lead Sossamon to reform his life…even Catholic Mass and the sacraments (while desirable)… and while the state was culpable, he should not receive damages.

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