“Memorial Day”

By its nature, Memorial Day is solemn. Many Americans spent this past Memorial Day at cemeteries, visiting those they knew or didn’t know, who fought and died in America’s wars. Surprisingly, this somber practice is currently at the heart of a case before the U.S. Supreme Court. The case involves Albert Snyder, the father Marine Lance Cpl. Matthew Snyder, who was killed in Iraq, and the Westboro Baptist Church. The Westboro Baptist Church has made a name for itself over the years by protesting at military funerals and it is now seeking formal protection the practice. The case requires a balancing of the father’ right to privacy and the solemnity of his son’s burial against the Westboro Baptist Church’s First Amendment right to freedom of expression. The Federal District Court for Maryland ruled for Mr. Snyder, but the Court of Appeals reversed.

The Westboro Baptist Church‘s protests are not about Mr. Snyder’s son per se. To the Westboro Baptist Church, all the tragedies that the U.S. suffers, from hurricanes to tornadoes to the deaths of soldiers, are the result of what they take to be America’s permissive attitude toward homosexuality. America is the new Gomorrah. Protesting at soldier’s funerals is only a ploy to get them attention beyond what their message or numbers merit. Although they keep up a busy schedule, most of their protests only include a few church members flown in from their home church in Kansas.

Knowing this hardly makes the Westboro Baptist Church’s actions more forgivable. It takes a fearsome devotion to the First Amendment to defend allowing a group like Westboro Baptist Church to broadcast their bizarre take on world affairs. In many other parts of the world even considering it would be unthinkable. In Germany, and in many countries in Europe, Holocaust Denial is illegal. In Britain, libel laws are so loose that one can be prosecuted for something said in another country. The vigour with which we defend freedom of speech in the U.S. is unique.

There are limitations, of course. You can’t yell “Fire” during a packed showing of “Avatar,” and if you harangue someone viciously enough to get slugged, the First Amendment won’t protect you. But how many other countries in the world would allow a group of Nazi’s march through a town with a large population of Jews, as we did in Skokie, Illinois? Not very many. So the question we have to ask each other is: Is this type of Exceptionalism really in our best interest?

But looking at the question this way makes it clear that the problem isn’t the First Amendment at all. While it’s true that the First Amendment allows the Westboro Baptist Church to carry out its protests, it isn’t the reason they are successful. The Westboro Baptist Church isn’t a civil liberties organization—they protest at soldier’s funerals because they know it will attract a large amount of news coverage. And it is not the First Amendment that gives them that platform—it is us. If we failed to pay attention, the Westboro Baptist Church would seek ways to get their message out. Could we collectively turn away? There’s good reason for doubt. Newspapers, television stations and websites, like any good businesses, will always find room to publish stories that sell, and outrage has a good track record for sales.

It is worth trying, however, if only because the alternative is so unappealing. Whether the First Amendment serves our interests well or poorly, we shouldn’t carve it up for fringe groups like the Westboro Baptist Church. Where would it end? After all, a group that is willing to protest at funerals would probably be willing to engage in other shocking behavior to get attention. Maybe mass flag burnings? Should we write that out of the First Amendment as well?

Nothing good can come by letting fringe groups like the Westboro Baptist Church rewrite our First Amendment jurisprudence. Whether the freedom of speech as it is practiced in the United States is superior to its treatment in the rest of the world is up for debate. If we should ever wish to change our stance, however, we should make sure we are doing it for the right reasons and not the wrong ones.