Editor’s Note: A tiny right-wing church whose hatred of homosexuals has driven it to the extreme of staging ugly demonstrations at U.S. military funerals may test the patience of even the most dedicated civil libertarian, but the principle of free speech seems clearly on the church’s side.

Still, the church’s targeting of military funerals has thrown other issues into the debate, including America’s post-9/11 reverence for all things military, and may tempt the U.S. Supreme Court to end-run the First Amendment, warns the Independent Institute’s Ivan Eland:

These protesters are members of the conservative Westboro Baptist Church, which has picketed the military funerals of about 200 families. The church believes that 9/11 and American soldiers’ deaths in the “war on terror” are God’s way of punishing the United States for tolerating homosexuals.

The trial court said the members of the church had to pay the serviceman’s father $5 million for invasion of privacy and intentional infliction of emotional distress. But a unanimous three-judge panel of the 4th Circuit Court of Appeals in Richmond, Virginia, overturned the court’s opinion.

The appeals court judges called the church member’s protest “distasteful and repugnant” but protected by the Constitution’s First Amendment right of free speech.

The serviceman’s father’s brief before the Supreme Court says the church members have a right to free speech but not to “hijack [a] private funeral as a vehicle for expression of their own hate.” It argues that purposeful attempts to insult and invade privacy are not constitutionally protected.

This is the popular position, especially with the current militarization of American society — with adulation pouring out from politicians and the public for the military and its members.

Forty state legislatures and Congress have passed laws restricting such speech at military funerals. The serviceman’s father’s Supreme Court brief has received support from the attorneys general of 48 states and the District of Columbia, the majority and minority leaders of the U.S. Senate, and 40 senators of both parties.

But First Amendment scholars and the media correctly realize, as did the Court of Appeals, that although the speech is vile and repugnant, the First Amendment of the Constitution protects it. If the government starts shutting down speech that it doesn’t agree with or that isn’t favored by a majority of the population, everyone’s liberty to speak freely and influence the government is at risk.

According to the Washington Post, one of the members of the church noted that the First Amendment has survived pornography, flag burning, filth on the Internet, and allegedly seditious speech, so the question is whether it can survive a few words from a small church. It needs to.

Admittedly, the church members’ words are unbelievably obnoxious at any funeral where loved ones are mourned, whether it’s military or civilian. The persons doing the protests should be ashamed of themselves.

But that is not the question. Preservation of liberty in a republic is undergirded by the ability for people to speak freely without government penalty, no matter how distasteful the speech.

How the Supreme Court should rule is clear; but in many past instances they have deferred excessively to the military and national security and public passions about them. And it has gotten worse as U.S. foreign policy has been militarized after the Korean War — with the creation of the first permanent large peacetime army in the nation’s history.

After the Vietnam War, the advent of the all-volunteer force, and 9/11, the adulation of the military has reached new heights. The military should have been criticized for blinding incompetence after failing to learn the lessons of counterinsurgency from Vietnam, thus bungling the early stages of the military occupations of Afghanistan and Iraq, but only worship poured out from the American people and its politicians.

Why has this reverence for the military arisen and become patriotic when it runs counter to the nation’s Founders’ suspicions of large standing armies and foreign military adventures?

A skeptic would attribute the excessive exaltation to guilt. Part of it is overcompensation for guilt from stories of verbal abuse after servicemen returned from Vietnam.

How widespread this abuse was is open to debate, but some guilt probably should be present, because unlike the volunteer participants in Afghanistan and Iraq, most of the soldiers in Vietnam were shanghaied for service by their government against their will.

Yet today’s volunteer military also has people feeling guilty. Only a small number of people are needed to fight today’s needless and counterproductive wars, leaving the rest of us to watch the Super Bowl, shop at the mall, etc.

Many people feel guilty for not sacrificing more in time of war. Instead of doing this, maybe people should feel guilty about not opposing the wars before the president and Congress send these servicemen into unneeded bogs.

Finally, after the diabolical 9/11 strikes, the public has allowed itself to be duped into thinking that avenging these attacks by U.S. military invasion and occupation of Islamic lands is a good idea.

According to Osama bin Laden’s writings, however, U.S. meddling and military occupation of such lands motivated his anti-U.S. attacks in the first place. So maybe avoiding such quagmires, and thus bin Laden’s ploy to get more recruits and money for his cause, would have been a better idea.

The Supreme Court may once again succumb to the further militarization of U.S. society by widening exemptions to the First Amendment to include military funerals. This militarization is not only bad for the republic but even worse for the military and its service members.

After all, they are the ones left holding the bag when fighting in faraway, unneeded, pointless, and bloody quagmires. Thus, service members should be wary of excessive flattery thrown their way.

Ivan Eland is Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland has spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. His books include The Empire Has No Clothes: U.S. Foreign Policy Exposed, and Putting “Defense” Back into U.S. Defense Policy.

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