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January 31, 2007

ACLU Loses One, Wins One

A federal judge has struck another blow against Fred Phelps and his Westboro Baptist gay-hating church, ruling that the "God Hates Fags" activists cannot shout out their beliefs at the funeral services for our fallen soldiers. The group had taken to protesting at these services, claiming the soldiers' deaths were God's retribution on the U.S. for tolerating homosexuals. The Court in essence ruled that one person's rights under the First Amendment can't be allowed to negate another's right to the "free exercise of religion." Because the homophobes had plenty of other times and places in which they could express their views and the state's law barring protesters from military funerals did not reference the content of the speech to be regulated, the Court ruled the state can rightfully deny Phelps's followers (and everyone else) the right to protest at soldiers' funerals. I believe the Court made the right choice here, even though the ACLU sided with Phelps.

Courts have ruled similarly in the past in cases where the recipient of the speech was unable to escape or avoid the speech (a captive audience), such as when protesters gathered on a sidewalk in front of someone's home, directly outside abortion clinics, in or near a courthouse, in or near a polling place, or on public transportation vehicles.

The US Supreme Court has interpreted the First Amendment to mean that speech may be lawfully regulated as to time, place and manner, but that regulation must be content-neutral, narrowly tailored to address a provable significant governmental interest, and may go no further than necessary to achieve that interest. Additionally, the government must opt for the least speech-intrusive means possible to achieve that interest and leave open ample alternative means for the speaker to effectively speak.

The Westboro Baptist Church case is a very different one than the the other anti-gay free speech case the ACLU was involved in and won this week. It the second case, the ACLU defended a Christian protester carrying a sign in front of Wal-Mart that read, "Christians: Wal-Mart Supports Gay Lifestyles and Marriage. Don't Shop There." The protester was ordered by a police officer to stop until he had obtained a permit. The permit application languished for weeks and the mayor failed to approve it, so the man sued. The Court determined that his right to free speech was infringed.

The key difference between these two cases is that in the first, the speakers' message interfered with the First Amendment rights of others, while in the second, no one's First Amendment rights were harmed in any way by the protester's expression of his opinion.

Judicial Watch, which successfully challenged the ACLU in the Westboro Baptist Church case, is, of course, trumpeting its defeat of the ACLU, but has remained mum in the second case. To tout it would not help their current message that the ACLU is a radical group that has no sense of decency. And it would certainly not help them prove that the ACLU is anti-Christian.

Posted by Becky at January 31, 2007 02:12 PM