John Whitehead's Commentary

The U.S. Supreme Court will soon hear the case of Snyder v. Phelps, a case that tests the limits of the First Amendment's protections for free speech. At issue in the case is whether members of the Kansas-based Westboro Baptist Church, which was established by Fred Phelps in 1955, have a First Amendment right to air their opposition to policies and laws condoning homosexuality by staging peaceful protests in public during military funerals. However, what this case is really about, and what few people are talking about, is the extent to which war values have seeped into American culture.

The case arose after members of Westboro Baptist Church picketed the Maryland funeral of Matthew Snyder, a Marine who was killed in combat in Iraq on March 3, 2006. As part of their protests, church members held up signs during Snyder's funeral which stated, among other things, "God Hates the USA/Thank God for 9/11," "Fag Troops," "Priests Rape Boys," and "Thank God for Dead Soldiers." Matthew's father, Albert, subsequently sued Westboro for demonstrating 1000 feet away from his son's military funeral and was awarded more than $10 million in damages. That amount was later thrown out by a federal appeals court, which ruled that as distasteful as Westboro's rhetoric might be, it constituted protected speech that focused on issues of national debate. Now it's up to the Supreme Court to determine whether the privacy rights of grieving families trumps the free speech rights of demonstrators.

In a somewhat unprecedented move, 42 politicians--all U.S. Senators--filed a friend-of-the-court brief in the case essentially urging the Supreme Court to declare that respect for the military should trump free speech. These sentiments also underly the arguments in the briefs filed by the Veterans for Foreign Wars, the American Legion, and the John Marshall Law School Veterans Legal Support Center, among others. Attorney generals from 48 states also chimed in with their own brief, insisting on the government's right to protect grieving families from so-called "psychological terrorism."

One common thread runs through all of the friend-of-the-court briefs that were filed urging the Supreme Court to silence the Westboro Baptist Church protesters--namely, that America owes so much to the military and those who die in the line of duty that we should defend their honor at all costs, even if it means sacrificing our own freedoms in the process. But this line of reasoning does nothing more than pay lip service to a false sense of patriotism.

A true patriot understands that it is possible to love one's country while disagreeing with the government or going to court to fight for freedom. Love of country will sometimes entail carrying a picket sign or going to jail, if necessary, to preserve liberty. And it means defending or speaking up for those with whom you might disagree. Tolerance for dissent, we must remember, is a vital characteristic of the citizens of a free society. As Supreme Court Justice Oliver Wendell Holmes said, "If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought--not free thought for those who agree with us but freedom for the thought that we hate."

Thus, true patriotism means being outraged at the loss of others' freedoms and being willing to stand and fight to protect those freedoms, even when our own are not directly threatened. It also means remembering that the prime function of any free government is to protect the weak against the strong.

Matthew Snyder and the more than 5,000 American men and women in uniform like him who have died so far in Iraq and Afghanistan gave their lives for these principles, chief among them to keep America free. However, keeping America free means more than just fighting on a battlefield in service to one's country. It means upholding the Constitution and protecting the free speech rights of extremists like Fred Phelps who, right or wrong, are vocal in their criticism of the military and American values.

If we're not fighting to keep America free for Fred Phelps and other free speech extremists like him--if all we're fighting for in this endless war on terror is some misguided sense of patriotism (and that's all it really boils down to when you study these briefs in support of Snyder), then we're fighting for the wrong thing. You might as well toss the Constitution in the trash can and usher in a military state where it will be against the law to criticize those in power. Rest assured, that's what we will eventually be faced with if the Supreme Court does not draw a protective bright line around free speech--including speech that is politically incorrect and unpopular.

Inevitably, free speech is going to be unpleasant to most people, but it goes hand-in-hand with maintaining freedom in America. James Madison, who authored the First Amendment, noted that the purpose of the Amendment was to protect the minority against the majority. And as Madison knew very well, the minority is made up of extremists who spew forth with offensive speech. When we allow outside concerns to trump the First Amendment--whether it be military values, political correctness, a misguided form of patriotism, or a combination of all three as in this case--we slam the door on open debate and dialogue. And when that door shuts and people are intimidated into silence without a public outlet for their thoughts, hateful or otherwise, those thoughts are left to fester in secret. This is where most violent acts are born. And that is why the First Amendment in its protection of speech is so important. It acts as a steam valve to let those who hate release their pent-up anger in public.

The Phelps case illustrates how far we've fallen as a free society. In fact, the backlash against Westboro Baptist Church and its followers is a manifestation of our politically correct society's constant attempts to control those who persist in acting as if we live in a free society. Censoring unpopular speech sends the message that if we don't toe the line, our lives can and will be controlled by the government. As a consequence, it not only destroys freedom, it tells us that we can't think for ourselves, we can't hold certain views, and we can't speak freely. But the First Amendment is supposed to protect against this kind of mob mentality.

America once symbolized the very essence of free speech, where society's most arduous and insidious ideas could be put to the test in what Justice Oliver Wendell Holmes termed the "free marketplace of ideas." Today, however, we have been captured by the chains of political correctness and an emerging war empire. And if we do not throw off these chains, we will bury freedom along with our fallen soldiers.

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

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