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When the First Amendment should come second

Submitted by on Wednesday, 31 March 2010 3 Comments

I’m a big Bill O’Reilly fan today.

I also agree with Michelle Malkin.

And I think an appeals court was dead wrong when it ruled, on free speech grounds, in favor of people who protested at a Marine’s funeral.

There’s one thing and one thing only that could convince me to praise O’Reilly, applaud Malkin and dis the First Amendment: Westboro Baptist Church, which really doesn’t fit any definition of “church” that I’ve ever heard.

The undisputed facts, according to court documents:

  • The “church” – which hates everything and every one, from the military to homosexuals, from Canada to Sweden – picketed at Lance Cpl. Matthew Snyder’s funeral after he was killed in Iraq in 2006.
  • The “church” complied with local laws and police in keeping a certain distance away from the funeral.
  • The “church” continued to criticize – that’s putting it mildly – Snyder’s family after the funeral, through vile missives on one of its Web sites.

Part of the claims were thrown out – the trial court said the speech wasn’t defamation because it was “religious opinion” that wouldn’t tend to hold the Snyders up to public scorn. True enough, because reasonable people quit listening to the “church” along about the time it protested at Matthew Shepard’s funeral. And it is terribly difficult to take seriously a “church” that spews hatred for most mainstream religions.

The “church” also won on some First Amendment issues at trial. The judge said that some of the signs were so general – “God Hates America,” for example – that they couldn’t have applied to the Snyders personally.

Others issues, however, were allowed to go to the jury, with an instruction from the judge that jurors balance the defendants’ rights to religious freedom with the Snyders’ rights to privacy and to be free from reckless or extreme conduct that causes them emotional distress.

Reckless and extreme are probably the two words that best describe Westboro.

But the appeals court didn’t like that instruction, saying that it put what should  have been a legal decision in the hands of the jury.

It gets even more densely legal beyond that, but basically the trial court focused on whether the Snyders were private figures and entitled to great legal protection. The appeals court focused on whether the rantings of the “church” were a provable truth (or untruth, in this case) or whether they were hyperbole and opinion. It decided they were hyperbole and reversed the verdict.

Then this week the appeals court ordered the family to pay $16,000 to cover the “church’s” legal costs. Except, according to court documents, the “church” didn’t have a lot of costs. The “minister’s daughter, who also is one of the defendants, represented the whole lot for free. She told CNN that the money will go to finance more protests.

That’s when O’Reilly stepped in and agreed to cover the costs. Malkin called the protesters “evil miscreants.” Good for them. I wonder why it took Malkin so long to figure that out, but good for them.

Meanwhile, the U.S. Supreme Court agreed to hear the family’s appeal. I’m rooting for the Snyders.

In general, the court has protected even hate speech though there have been exceptions such as in the case of fighting words – “those that by their very utterance inflict injury or tend to incite an immediate breach of the peace”

It’s a slippery slope when courts start whittling away at free speech, but it’s not much of a stretch to see how vile pickets at a funeral would “tend to incite an immediate breach of the peace.”

Copyright 2010 Debra Legg. All rights reserved.

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  • Mountain Mom said:

    I am still reeling is shock over this. So remarkably disgusting that a family who gave their very best loses to a bunch of losers. Devastating!

  • Debra said:

    It’s going to be a fascinating case legally before the Supreme Court because there are actually First Amendment issues on both sides: The Snyders’ right to privacy and religion vs. free speech on the “church” side. The appeals court looked at it primarily from a libel law standpoint and, without getting too technical, seemed to not mind the differences between a public and private person. I can see the Supreme Court ruling the other way without eroding free speech rights in the least.

  • Leslie K said:

    these people are the reason I do not go for this ‘sola scriptura’ thing – nor do I hold to the old ‘truth is relative’ thing either. What is good for them is not only BAD for me it is bad for the entire thinking population of this country. They are, quite simply, wrong and (in the words of my hero, Father Corapi) EVIL.


    I said it.

    and they are jerks.