User Error: Freedom of Speech

Today the Supreme Court will hear arguments on the controversial issue of protests at military funerals. To set the scene: The father of a serviceman KIA is has sued the pastor of a fundamentalist Christian church in Kansas for intentional infliction of emotional distress (that you may remember from Hustler v. Falwell and the movie "The People vs. Larry Flynt") for protesting his son's funeral by holding up signs reading awful and offensive messages, such as, "God hates fags." The pastor and his cronies feel that God is punishing the States for their sins, including and predominantly homosexuality.

The thing is, the pastor and his "church" did everything by the book, legally speaking. They followed all the rules pertaining to rallies or protests, they stayed within their physical boundaries, stayed the appropriate distance away from the funeral procession, and left when they were supposed to. Legally speaking, the "church" did nothing wrong.

There are some facets of speech that are not protected by the First Amendment, such as the famous example of yelling, "Fire!" in a crowded theatre, as that poses an immediate threat, or a clear and present danger of being trampled to death. Similarly, threats and "fighting words" are not protected. Intentional infliction of emotional distress is also not covered under this amendment. Falwell lost the case because, although his emotions were clearly intentionally inflicted with distress, he was a public figure, and public figures should stand immune to that type of speak. The father of the soldier, however, is a private figure, and is not considered to be immune to intentional infliction of emotional distress. Thus if follows (to me) that it makes sense to find the pastor guilty of the tort of intentional infliction of emotional distress. BUT there is another side.

The pastor and his church were not targeting the father of the soldier as an individual. Rather, they were just using his son's funeral as a screen on which to project their bigoted and unrepresentative agenda. I personally see that as a pretty convincing argument, because intentional infliction of emotional distress does tacitly require the offensive material to be targeting the prosecution. This targeted a nation in general, not just the father. So this boils the case down to a tiny minority expressing offensive and unpopular views within the confines of the law at a funeral. It still sounds pretty sick, but to me, it is an example of the speech that the First Amendment was written to protect.

Let me clarify, I am 100% against the pastor and his church's actions. I think that they are wrong and disgusting, and do not condone the participants or their message in any way.

Still - let's flip this around. Let's say that the event that the slim minority was protesting was a big hate rally against homosexuals, just because they're different. And let's imagine that this is the popular view. Would any of use try to silence a small portion of the populous that comes out to protest against this make-believe event? Probably not, because they have the right to express their opinions. No one would be especially happy about it, but that is the kind of speech that is protected by the Constitution. Speech that doesn't infringe on anyone's immediate rights, speech that does not present a clear and present danger, and speech that is expressed within the appropriate legal confines.

So here is my point - as much as I hate to sound like the ACLU and their outspoken legal sector, I do believe that however sick the message the pastor is sending and however inappropriate the times and places he chooses to send that message, he has the right to do it. The problem here is not with the freedom of speech he is exercising. The problem is with the speaker. This speaks more to the fallen nature of humanity and the inability to discipline one's own right to free speech more than a First Amendment gone crazy. This is not a bug in the amendment, this is complete user error.