Mark Levin agrees completely with her and I'm pretty sure he knows a lot more about the issue than FR's in-house PDS/Paul-bot "constitutional scholars."
From Wednesday night's show...
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Well, the Supreme Court ruled today in an 8-1 decision, Justice Alito being the dissenter, that the inbred types — I don’t know that they are; they just appear that way and sound that way to me so I’m not saying it factually — that the Westboro Baptist Church have the right through free speech to interfere with funerals of..our soldiers killed in the line of duty.
I knew it would be a tough case, no question about it. The Supreme court has made a mess of free speech in the First Amendment, as it has most of the Constitution quite frankly. But I would like to ask the 8 justices a question, not an emotional question, a factual question and see how that might fit into their analysis:
If the Westboro Baptist Church members, all 12 of them, went on public property in a public elementary school where they are holding pre-school, nursery school, and they stay outside but they go up to the window and they scream the things that they scream at these funerals...would that be unconstitutional?
I’m just wondering, because the Court has ruled in classroom cases that you don’t have absolute free speech because of, you know, issues like discipline. How are you going to teach kids if they can jump up, say, in high school or middle school or what-have-you and start screaming things, claiming first Amendment rights? So, if the inbreds are screaming them through the window, or let’s say they’re 100 yards away from the window but they’re on school property and they’re screaming these things at nursery school children, would that matter? What would you do? I’m just curious.
Now you’re going to hear a lot and read a lot about ‘this is a great decision for the First Amendment.’ Let me explain something: I am very much a purist when it comes to the First Amendment, but the Supreme Court is not. The Supreme Court has a variety of tests depending on what kind of speech it is. For instance, if the core part of the speech is political expression, it has a higher test if you want to limit it or control it or regulate it. Umm, there’s other forms of speech that are highly protected with copyrights and so forth. Obscenity is less protected depending on what type it is, like pornography and so forth. Whether the speech creates an immininent threat of danger, clear and present. Imminent lawless action. And I already told you about the school situation. So there’s all kinds of tests, factual scenarios where the Court comes out differently because it’s made a hash, as we say, of the free speech part of the First Amendment as with most of the First Amendment.
And yet in this one instance, this one instance with all those exceptions, with all those tests, they couldn’t find one here. I’ll be perfectly honest with you...if I were a Justice I sure as hell would have looked for one, or scrapped them all.
You can’t tell me a fidelity to ‘Congress shall make no law regulating free speech’ that you have complete fidelity to that when you don’t.
The question is, always, where do you draw the line? To what extent can the government intervene? I understand that. To what extent can another party challenge the “speech of another party” on public property? But it seems to me if disrupting a classroom is a test, then disrupting a funeral of a killed soldier comes close enough.
I know I’m upsetting a lot of people who are purists. And I’m saying if the Supreme Court wants a purist test — OK. But they don’t. Where are all those tobacco ads on television? They were banned. Our Judiciary has upheld those bans. They uphold all kinds of bans on commercial speech. ‘Can’t have this kind of ad because it applies to kids.’ We have bans on pornography. OK, I got it. And as I said, students are not free in public school or government schools to jump up in the middle of class and attack gays or attack anyone or make demands or what-have-you because you can’t possibly run a school system that way, can you? So the Court makes adjustments, but not here. It was very rigid. I mean I can’t, other than what they’re written which is pretty much pro-forma to be honest with you, I can’t delve into everybody’s thinking.
But take campaign laws: One of the things the Founders clearly intended to protect was free political speech, yet we have all kinds of rules that apply to free political speech. We have limits on how much you can contribute. They say that’s different than how much you can spend. We prohibit certain entities of people, like corporations, from making direct contributions to individuals. Why is that? Because the Court decided, that’s why. Congress said, prohibit it. Court said, fine. Why? Well, they just did. And yet that is core political speech, fundamental to the First Amendment and free speech. Yet they regulate it. Why?
So please don’t lecture me on purity of the First Amendment when I can tell you case after case after case when the Court has not held that way. Even though, even though it is one of the aspects of the First Amendment that has been less molested than other aspects of other amendments and the rest of the Constitution. But still, they’ve created quite a muddle, haven’t they?
Anyway, that’s my 2 cents worth.
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