Footnote Four

A collection of thoughts on Law and Politics and how small, seemingly unimportant things (like footnotes) can become large and important vehicles for historical transformation (like the infamous Footnote Four).

Wednesday, February 01, 2006

Free Speech at Funerals?

One of the more controversial stories I've seen in the news recently has to do with a group from Kansas who travels the country protesting at the funerals of American soldiers killed in combat in Iraq. When I first heard of this group on the evening news the thing that struck me was that they must be some sort of Cindy Sheehan, anti-war group. The kind that drives cars with bumper stickers that say "No one died when Clinton lied." I couldn't have been more wrong.

The group, loosely affiliated as a church from Kansas, is one of the most radical, right-of-center groups I've ever heard of. They strike me as nothing short of the Michigan militia, except under the guise of a church. Their platform is that God is allowing these deaths to occur because the United States is a supporter and enabler of homosexuality. According to their website, (no, I am not kidding), the main purpose of the Westboro Baptist Church (WBC) is to preach "the Gospel truth about the soul-damning, nation-destroying notion that "It is OK to be gay." Through their weird logic (that anyone who has taken the LSAT could pick apart), they have decided that it is their Christian mission to travel around telling the mothers and fathers of this world that their children died because the U.S. condones homsexuality.

This obviously presents a problem to a number of family members who are attending the funerals of their loved ones and who are understandably distraught. It seems though, that since they've begun to receive all of this recent attention, they've decided to branch out a bit. Now it seems like their main purpose is to get on television as much as possible. They've moved on from soldier funerals to other high-profile funerals so that the mass media will see them out there pushing their hate message as far as it will take them. They just announced that they will be protesting at the funeral of Coretta Scott King, a woman who is almost universally loved throughout the United States.

In response to this though, many state legislatures have beefed up thier efforts to speed through laws aimed at curbing their speech, atleast as it relates to funerals. While the intention is good, it probably isn't a legal action. According to Professor Stone at the University of Chicago Law School, you can't prohibit the content of speech near a funeral, but you can prohibit "noise" near a funeral parlor or other public place as long as the prohibition is enforced equally to everyone. Several states had announced their intention to pass laws that would prohibit protesting within several hundred feet of a funeral, but these will almost certainly fail. However, Indiana seems to have passed a good resolution that may pass constitutional muster. A few weeks ago they passed a bill which "makes disorderly conduct a Class D felony if it occurs within 500 feet of a funeral, burial, memorial service, funeral procession, or viewing." (Full text here)

It seems to be neutral in its application, but obviously challenges will be raised at the true meaning of "tumultuous conduct." One advantage of the law is that it simply is an amendment to a preexisting law which has withstood any challenges in the past on free speech grounds and it makes no mention of content, simply disorderly conduct. Also, the Supreme Court has said in the past that "fighting words" do not constitute a protected area of the First Amendment. It seems that given the right set of circumstances, the actions of the WBC could certainly incite violence and their speech may certainly constitute fighting words. In the Chaplinsky case, the Court held that a phrase such as "a damned fascist" constituted fighting words because it doesn't tend to convey an idea, but is only used to incite a breach of the peace. According to the WBC's own website, some of their written words are far more inciteful than that, so I can only imagine what they say when pushed out in public.

Whatever you believe about homosexuality, this group preaches hate speech in its most awful context and should be put out of business. However, doing it constitutionally may not be an option. As one of the parent's of a dead soldier said, this is what their son died for, the rights of the Constitution, but hopefully as this group continues to picket they can be removed from the line of the sight of those who have turned out to mourn the loss of their loved ones.


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