Does Banning ALL 1st Amendment Activities Violate the 1st Amendment?

Yes.  But after seeing a post from my friend Asa Burck on the funniest Supreme Court decisions, I just had to blog about it.

We previously discussed in class that when there is a content-neutral ban on speech that it doesn't face as tough of judicial scrutiny as other bans.  LAX took it one step further and in 1983, tried to pass a law banning the pamphlet people from hanging around the airport.


Jews for Jesus was the first religious group to get kicked out under the new rule, and they filed a lawsuit.  Justice O'Connor made a somewhat giggle-filled comment, ""The issue presented in this case is whether a resolution banning all 'First Amendment activities' at Los Angeles International Airport (LAX) violates the First Amendment."


The Court unanimously ruled LAX's ban on all 1st Amendment speech violated the 1st Amendment.  No shocker there.  


For more information and to see other funny Supreme Court rulings, see:  http://www.cracked.com/article_19147_5-awesomely-sarcastic-supreme-court-decisions_p2.html#ixzz1KGhXoA5n

1st Amendment Remedies: The Glenn Beck Story

Last week, Glenn Beck and Fox News announced they would be parting ways sometime later this year.  The controversial host has said outlandish things like how President Obama is a racist, 9/11 families complain too much, and the Egyptian Revolution is really an attempt to establish a new world order, known as the "Caliphate."

Prior to this year, Glenn Beck had somehow managed to obtain a massive audience and following.  However, since his antics and theories evolved from fringe to potentially certifiably crazy, his audience left in droves.  In the past year Beck's audience dropped drastically:  29% overall and 35% among 25-54 year olds. Hundreds of advertisers refused to have their products shown while his show was on the air due to his hateful speech.

I contend that this is exactly what the First Amendment was designed to do.  We, as a society, allowed Glenn Beck's ideas to flow freely out into the market place of ideas.  Initially, when this country was struggling and jobs were hard to get Glenn Beck's messages echoed a growing frustration.  But as the economy began to recover and people started to return to some level of normalcy, Beck's incoherent, chalkboard drawn-out delusions did not carry weight.  People turned the channel.  His ideas failed.  Fox News saw the writing on the wall (pun intended) and had to break it to Beck that his time was numbered.  They cordially came to an agreement on departure, but one cannot help but notice why he is leaving.  Less and less people were accepting of him in the free market place of ideas.

No doubt that Fox News is still a powerhouse drawing in the most prime-time news watchers.  Fox News did the right thing if they want to stay that way by eliminating a voice that was not only losing potential sponsors, but was also costing America air-time that could be filled by a more well-reasoned voice.

1st Amendment remedies... sure sounds better than talking about actually killing Michael Moore, which is what Glenn Beck said he wanted to do to Mr. Moore,  who has wildly different political views than him.

For more information on Glenn Beck's departure:  http://www.bloomberg.com/news/2011-04-06/glenn-beck-leaves-as-fox-host-for-new-role-with-news-network-1-.html

Although Constitutionally Protected, Speech Has Consequences: Quran Burning

Last month, a whacked out Floridian "pastor" burned the Islamic holy book, the Quran, after putting it on a mock trial.  This event was deemed newsworthy by some and the news traveled to Afghanistan, where U.S. servicemembers are putting their lives at risk in defense of our great nation.

Once the news reached the people of Afghanistan, thousands went out in the street to protest.  These protests got violent and ended up resulting in the deaths of over 20 people.  Beyond that, these protesters now have yet another reason to try and kill U.S. servicemembers who are deployed there.

Some Senators have thought about taking action against this pastor, but as we all know there is very little chance that can be done.  As Jack Cafferty states, "It's not clear he broke any U.S. laws, just the law against stupidity."

Although this speech may be protected, I think it serves as a grim reminder that although our words may be protected, we have a personal duty and responsibility to try and utilize our First Amendment rights in a way that best serves not only our society, but the world at large.

For more information on the Quran burning issue, please go to:  http://www.cnn.com
Jack Cafferty's Blog on the issue:  http://caffertyfile.blogs.cnn.com/2011/04/04/should-anything-be-done-about-the-pastor-in-florida-who-burned-the-quran/?iref=allsearch

Take Me Out to the Ball Game

In 1908, Jack Norworth and Albert Von Tilzer wrote "Take me Out to the Ball Game."  For Opening Day 2011, I thought I would set aside my serious thoughts about the First Amendment and enjoy a form of speech that almost every American can enjoy and sing.  Here are the original lyrics to "Take Me Out to the Ball Game."

Katie Casey was baseball mad,
Had the fever and had it bad.
Just to root for the home town crew,
Ev'ry sou  Katie blew.
On a Saturday her young beau
Called to see if she'd like to go
To see a show, but Miss Kate said "No,
I'll tell you what you can do:"

Take me out to the ball game,
Take me out with the crowd;
Buy me some peanuts and Cracker Jack
I don't care if I never get back.
Let me root, root, root for the home team,
If they don't win, it's a shame.
For it's one, two, three strikes, you're out,
At the old ball game.
Katie Casey saw all the games,
Knew the players by their first names.
Told the umpire he was wrong,
All along,
Good and strong.
When the score was just two to two,
Katie Casey knew what to do,
Just to cheer up the boys she knew,
She made the gang sing this song:

Take me out to the ball game,
Take me out with the crowd;
Buy me some peanuts and Cracker Jack
I don't care if I never get back.
Let me root, root, root for the home team,
If they don't win, it's a shame.
For it's one, two, three strikes, you're out,
At the old ball game!!!!!

Happy Opening Day, America!!!

Westboro's "Epic" on Matt Snyder

This week's blog asks one question:  Do you find this posting by the Westoboro Baptist Church to be actionable (libel?  IIED?)?  It was put up on the internet for all to see in conjunction with the protests at his funeral.

“God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD! You did JUST THE OPPOSITE—you raised him for the devil.

. . . . . Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic monster they condemned their own souls. They also, in supporting satanic Catholicism, taught Matthew to be an idolater.

Then after all that they sent him to fight for the United States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life, putting him in the cross hairs of a God that is so mad He has smoke coming from his nostrils and fire from his mouth! How dumb was that?”

Huckabee's your Huckleberry

Former Governor of Arkansas, Mike Huckabee, has shown how our freedom to speech may have significant social limitations.  When Huckabee stated:

And one thing that I do know is his having grown up in Kenya, his view of the Brits, for example, very different than the average American.... But then if you think about it, his perspective as growing up in Kenya with a Kenyan father and grandfather, their view of the Mau Mau Revolution in Kenya is very different than ours because he probably grew up hearing that the British were a bunch of imperialists who persecuted his grandfather.

The obvious problem with this comment is that Obama did not grow up in Kenya.  He grew up in America and spent 5 years of his youth in Indonesia.  Huckabee tried to correct his (mis)statement when he said he meant to say Indonesia instead of Kenya.  Well, that doesn't make much sense either because Indonesia was a Dutch colony and the Mau Mau Revolution happened in Kenya.

While Mike Huckabee certainly has a Constitutional right to make comments about the public discourse of our country and our President that equate to nothing more than bologna, the public market place for ideas most certainly should let this rant by Huckabee sink to the bottom along with Glenn Beck, Rush Limbaugh, and other "birther" comments.  My hope is our society will place an appropriate "limit" on speech like this by rejecting this misinformation and by not making Mr. Huckabee a viable candidate for President.

Here is the Fact Check on Huckabee's comments: 
http://voices.washingtonpost.com/fact-checker/2011/03/huckabees_kenya_clarification.html

Alito's Dissent in Snyder v. Phelps is the Voice of Reason and Law

As many of you know, I have been following the Snyder v. Phelps case for an extremely long period of time.  Today, the Supreme Court issued the final word on the issue as to whether the First Amendment protects the Westboro Baptist Church from tort liability stemming from their protests of a fallen Marine’s funeral.

What many of you may not know is that before the ruling today, I was leaning towards the idea that this speech was protected under the First Amendment.  In fact, after I read the 4^th Circuit opinion in 2009, I was certain the Westboro protests would be upheld by the United State Supreme Court.  What I didn’t know is that after reading today’s majority opinion and the dissent by Justice Alito, I would actually change my mind and find the speech by the Westboro Baptist Church not to protected by the First Amendment.  In the following paragraphs I will point out exactly why I agree wholeheartedly with Justice Alito.

It is important to first note that our Constitution, Supreme Court, and society as a whole has placed the First Amendment nearly in a league of its own.  We especially ensure speech conducted in the public discourse receives special protection under the First Amendment.   As the Court points out, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”  Connick v. Myers, 461 U.S. 138, 145 (1983).  Exactly what kind of speech is public or private, however, is not as easy of a distinction as it sounds.  In order to determine whether speech is of public or private concern the Court must review the “context, form, and context” of the speech, “as revealed by the whole record.”  Id. at 147-8.  In other words, the Court needs to look at the totality of the circumstances surrounding the speech communicated to determine its nature.

When looking at the speech in its entirety, the majority opinion makes a tragic flaw by only analyzing the signs as part of the public discourse.  As Justice Alito’s dissent points out, Westboro issued a press release announcing they were attending Matt Snyder’s funeral, got as close as they could to the service without actually trespassing, and “launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability.”  The Westboro Baptist Church went far enough in their press release to state how Matthew Snyder “died in shame, not honor.”  Beyond that, after the funeral, Westboro Baptist Church wrote an online account, titled “Epic,” that explicitly names Matthew and his parents using language that most certainly is outrageous.  See Justice Alito’s dissent for the language of the Epic.  Justice Alito appropriately points out “[t]he protest and the epic are parts of a single course of conduct that the jury found to constitute intentional infliction of emotional distress.”  Westboro Baptist Church consciously and deliberately went to the Snyder funeral in an attempt to stir up pain and emotion on behalf of Matthew’s loved ones.  When looking at the speech in its entirety, it was “abundantly clear” Westboro Baptist Church went far beyond any form of public commentary and because of this, their speech does not enjoy First Amendment protection normally afforded to speech on public issues.

After ascertaining the speech of Westboro was not protected as public debate, the intentional infliction of emotional distress (IIED) claim becomes quite easy to parse out.  The majority opinion explains that In order to win on an IIED claim, the plaintiff must show the defendant “intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress.”   Did Westboro Baptist Church intentionally go to Matthew Snyder’s funeral and outrageously show signs like “Thank God for 9/11,” ”Semper Fi Fags,” “Thank God for IED’s,” and “God Hates You”?  Yes.  No one disputes that.  No one disputes these signs are outrageous.  Second, did Westboro Baptist Church cause Mr. Snyder severe distress?  Yes.  In fact, experts at trial pointed out how his emotional anguish from the protests has not only caused severe depression, but has also exacerbated his pre-existing health conditions.

Justice Alito’s dissent also appropriately points out that it is not a proper defense that Westboro Baptist Church was standing where the police told them to.  One does not have to trespass on another’s property in order for speech to be defamatory or for it to be considered “fighting words.”  Imagine the absurdity of a defendant admitting he defamed the plaintiff, but because he said it at the public park his speech was protected.  This is not what our First Amendment was meant to protect.

This was a private funeral.  After making a press release about Matthew Snyder, Westboro Baptist Church came to and bombarded the area immediately next to the location of the funeral service.  They had signs directed at Marines (which Matt Snyder was), signs dealing with roadside bombs (which caused Matthew Snyder’s death),  signs thanking God for fallen service members (which Matt Snyder was), and signs saying “You’re Going to Hell” (at Matt Snyder’s funeral, which certainly makes one think the sign was directed at the deceased).  After the funeral, Westboro Baptist Church posted an online article again specifically naming the Snyder’s while using degrading remarks towards them, causing great emotional pain to the entire Snyder family.  

After looking at the speech in question in its entirety, I do not believe the Westboro Baptist Church’s actions enjoy protection under the First Amendment and would find them liable for damages under the IIED claim.  For the reasons above, I join in Justice Alito’s dissent.

I strongly recommend you read Justice Alito’s dissent in its entirety as it is one of the most eloquent dissent’s I have read in quite some time.  Here is the opinion for the majority, concurrence, and dissent:  http://www.supremecourt.gov/opinions/10pdf/09-751.pdf