I’ve been trying — so far, with minimal success — to wrap my head around two stories which I referred to in an earlier post: the Supreme Court ruling on free speech for the Westboro Church, and the nine boys in Afghanistan, killed by NATO helicopter gunners.
The first one is harder to settle on, but easier to approach: the facts are open and agreed upon; it is only the interpretation which is at issue. In the second one, the interpretation is straightforward, but the facts — and here I speak of what really happened, not what is variously reported to have happened — are unclear, at least to me.
Okay: Let us try a thought experiment. Put yourself back in Colonial Times, say around late 1776. One of your neighbors, killed fighting in our War of Independence, has been brought home for burial. The community, gathering at the church for the funeral, is startled by the appearance of strangers who carry signs reading “HE DESERVED TO DIE,” and “GOD HATES MINUTE MEN.”
What would have happened?
My guess is, there would have been a flurry of fists and rocks, and very soon the strangers, ragged and bruised, would be high-tailing it out of town. And I think that suggests the culture in which the framers of our Constitution lived. They — those who created the Free Speech Amendment — would have allowed arguments against the war, but not defamation of the dead and disruption of their funerals.
In fact, I believe they would not have expected such a situation to require constitutional intervention. (But I am no lawyer, and barely more of an historian. Someone may prove me wrong in this supposing, and I will have to rethink, or apologize, or both.)
Still, it is that kind of imagining which I believe the Court has, for most of its life, neglected to try as it struggles to balance “original intent” with unpredictable exigencies of the day.
What it comes down to, finally, is that a line must be drawn, and what we argue over is where to draw the line. I argue — and will continue to, even if my thought experiment proves faulty — that Westboro Church have crossed the line, and that giving them leave to continue their assaults on decency and order will prompt some other madman to push the line farther yet.
I’ll come back later to address our war.