Tragic irony

Virginia Attorney General Ken Cuccinelli refused to join forty-eight state attorneys general and forty-two United States Senators in petitioning the Supreme Court to reject the First Amendment right of Westboro Baptist Church to picket military funerals. Given that Westboro's message is so reprehensible and so many of his conservative colleagues have contrary views, this must have been a difficult decision for Cuccinelli. Last week, however, the Court vindicated his decision and ruled Westboro engaged in protected speech when it protested the funeral of Marine Lance Cpl. Matthew Snyder, who was killed in the line of duty in 2006.

For many of us, Cuccinelli's bright-line protection of free speech is difficult to tolerate. Matthew Snyder died protecting our country; his family should be able to bury him in peace; and the views espoused by Westboro Baptist Church are cruel and disgusting. We want to see these annoying, belligerent media-magnets go away and we empathize with the families forced to bury their loved ones in the face of such hateful, pain-inducing rhetoric.

But the Supreme Court, in an 8-1 decision by Chief Justice John Roberts, refused to manipulate the Constitution in a myopic effort to placate public outcry. Instead, it asked if the First Amendment, as originally written and historically interpreted, protects this kind of speech. Almost apologetically, the Court answered in the affirmative.

The Court's reasoning was fairly simple: The First Amendment exists to protect public speech. Public speech is speech that can "be fairly considered as relating to any matter of political, social, or other concern to the community." Therefore, when people stand on public land and communicate about issues of public importance-homosexuality, war, or Catholicism, for example-the First Amendment is on duty. At the very least, the First Amendment requires government to ignore the content of speech when issuing regulations or providing for civil liability. In its precedent, the Court calls this "viewpoint neutrality," and it is an inviolable limitation on the government. The question before the Court, therefore, was whether anyone with any public message could stand where the Westboro protestors stood and do what they did.

There are many complicated First Amendment doctrines that the Court could have applied to make this case turn out differently: defamation, captive audience, verbal assault, and fighting words are just a few. But had the Court applied any of these doctrines, it would have expanded their scope beyond anything found in precedent and in the end there would have been less First Amendment protection.

In refusing to do so, Roberts looked forward to a day when the socially-reprehensible speech in question does not belong to Westboro but to someone more sympathetic. If we alter our rights and let the government curtail speech on the basis of emotional distress or social insensitivity, it does not take an active imagination to foresee the chilling consequences. When it is our speech, not Westboro's, that comes under attack, we will be thankful that our First Amendment remains robust and effective and that the Supreme Court on March 3, 2011, refused to let it atrophy.

Matthew Snyder died to protect freedom. In tragic irony, he gave Westboro the right to hold signs outside his funeral that say "Thank God for Dead Soldiers." Yes, Westboro's speech is "protected," but young heroes like Matthew Snyder maintain that protection. The solution to this tragedy is not to give up the freedom that our military defends; rather, it is to take responsibility for it and to make our military proud to defend that freedom. Thank a soldier. Fly a flag. Communicate your gratitude and patriotic love. Drown out this malevolence with the sheer mass of your civil discourse. And, Westboro Baptist Church, you are welcome.

"Like" us on Facebook today!