The Supreme Court’s mad extension of “free speech” rights to gross and horrible insults against the dead at a funeral

James N. writes:

Although I wasn’t surprised, I WAS disappointed by the Supreme Court’s 8 to 1 decision upholding the “right” of Fred Phelps and his Westboro Baptist Church to attack private citizens at funerals by celebrating the deaths of their loved ones, particularly their children.

Among all their other misfeasances, the legal mainstream understanding of exactly what the First Amendment protects has gone seriously off the rails.

The right to speak and the right of the people peaceably to assemble for petitioning are not the same right. No one has a right to do that which is wrong. If mocking the family of a dead child at the child’s funeral is not wrong, then nothing is wrong.

To punish Phelps (who should have been horsewhipped long ago), the court would have to discriminate between assembly to petition the government for redress of grievances and this disorderly (because provocative) mob.

But wait—there’s more! In order to protect Phelps’s “right,” it is required by eight of nine justices that the mourners suppress their natural, healthy reaction to this perverse assembly. If they did not suppress their natural, normal, manly feelings then Phelps would have suffered the consequences of his misbehavior long ago.

As with many other novel “rights,” such as the “right” of women to dress provocatively without eliciting male interest, the government is behaving in a totalitarian manner by requiring humans to behave in a non-human, even anti-human, way.

LA replies:

I agree, except that you mis-identify the right which is at issue here. The right at issue here is not only the right to assemble peaceably to petition the government for redress of grievances, but the right to engage in speech. The First Amendment says: “Congress shall make no law … abridging the freedom of speech.”

So the question becomes, what is the line that divides protected speech from unprotected, abusive speech? As Justice Alito, tragically the ONLY dissenter in this bad decision, clearly explains, the Phelps group was engaging in “fighting words,” which are not protected. I don’t know yet what the majority’s response was to Alito “fighting words” argument. However, we do know that in the last five decades the Supreme Court has redefined “speech” as any expression. Thus the speech no longer has to be for a legitimate or moral purpose in order to be protected. This is the rule of radical liberalism under which we now live, which gives the vile unlimited freedom, and subjects the good to totalitarian restrictions.

Also, as far as I know, the question of the mourners physically attacking the demonstrators did not come up; so that wasn’t an issue in this case.

I must also add, that the only reason this case went to the U.S. Supreme Court is that under the revolutionary, unconstitutional Incorporation Doctrine, which conservatives gave up opposing decades ago (indeed, the number of conservatives who are even aware of the Incorporation Doctrine, one of the principal building blocks of the modern liberal order, is minuscule), the First Amendment’s command that Congress shall make no law restricting the right of the people to assemble and engage in political speech has been turned into a mandate that states and local governments shall make no law restricting the right of the people to assemble and engage in political speech. The Incorporation Doctrine transformed the Bill of Rights from a strict limitation on the federal Congress’ power over the states, into an unlimited grant of power to the federal courts over the states. Without the revolutionary Incorporation Doctrine, the Phelps case would be purely a local issue. The municipality could have made its own rules and stopped the Phelps group from gathering anywhere near that funeral.

I cannot overstate how damaging it is that conservatives now all take for granted that the federal courts have authority over the rules and standards in place in a municipality.

Let us always remember that there are two dimensions to the outrageous distortion of the First Amendment: first, the procedural distortion, which gave the federal courts power over local communities that they were never meant to have; and second, the substantive distortion, which transforms the right of speech, mainly for political purposes, into an unlimited right of expression.

Posted by Lawrence Auster at March 03, 2011 10:55 AM | Send