By a vote of 8-1, the Supreme Court ruled yesterday that the First Amendment protects the right of a fringe church to stage anti-gay protests at military funerals. As the Washington Post put it, the decision “writes a new chapter in the court’s findings that freedom of speech is so central to the nation that it protects cruel and unpopular protests – even, in this case, at the moment of a family’s most profound grief.” In his opinion, Chief Justice John G. Roberts Jr. wrote that the picketing by the Westboro Baptist Church–a tiny church in Topeka whose members go around the country to attend military funerals with lewd signs proclaiming that military deaths are divine punishment for the country’s tolerance of homosexuality–“is certainly hurtful and its contribution to public discourse may be negligible. . . .[but] as a nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate.” Albert Snyder, who brought the case against when the church picketed the funeral of his son Matthew, a 20-year-old Marine Lance Corporal who was killed in Iraq , “My first thought was eight justices don’t have the common sense God gave a goat. . . . We found out today we can no longer bury our dead in this country with dignity.”
Mr. Snyder is right: the justices don’t have the sense of a goat because, as Charles Dickens famously observed, the law is an ass. This doesn’t mean that they arrived at the wrong decision: we really are much, much better off drawing bright clear lines around the First Amendment rights, and discouraging courts and legislatures from carving out legal exceptions to these fundamental rights. But the thing that people always get wrong about the First Amendment is that protecting someone’s right to say something is not the same thing as protecting him or her from repercussions.
In many states, these protesters have to stay one thousand feet away from the site of the funeral. Here is a question for the veterans of the armed forces in those communities: how is it that these people can find a place within 10,000 feet to stage their ugly, hateful, contemptible demonstrations?
One is reminded of the scene in The Reverse of the Medal, one of the novels in Patrick O’Brian‘s great series of books about the British navy. In this book, his hero Captain Jack Aubrey naively falls in with some unscrupulous individuals, and in a political trial, is himself convicted of stock manipulation. Aubrey’s punishment is severe: a large fine, removal from the Navy’s promotions list, and the shame of spending an hour in the pillory, where he would be subjected to the scorn of the crowd. Except on the day Aubrey was to be locked in the pillory, the crowd was filed not with the ordinary rabble, but with men from the Navy.
“Bring him out, bring him out, bring him out and let’s have a look at him,” shouted the leader. . . of a band hired by some disappointed stock jobbers, and like his fellows, he carried a bag of stones. Bonden [Aubrey’s helmsman] turned sharp upon him and said “What are you doing here, mate?”
“I’ve come to see the fun.”
“Then just you go and see the fun at Hockley in the Hole, that’s where, cully. Because why? Because this is for seamen only, do you see? Seamen only, not landsmen.”
The man looked at Bonden, and the many closed, dead-serious, lowering faces behind him: brown, tough, often ear-ringed; often pigtailed; he looked at his own people, a pale and weedy crew, and with hardly a pause he said “Well, I don’t care. Have it your own way, sailor.”
Aubrey still had to spend his hour in the pillory–the law, after all, is the law–but he was surrounded by men with whom he had honorably served, who prevented his humiliation. People often find a way to obey the law and still do what’s right.