Commentary: Honor, solemnity must be protected

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Last Thursday, a young woman I know, Sgt. Amy Krueger, was murdered, along with a dozen others, at the Fort Hood Army base in Texas. This woman was a friend of my roommates, and she would stay at our house when she was in town.

She joined the military after the attacks on Sept. 11, to defend this country and our freedoms. My roommates are attending a vigil in her hometown as I write.

The same day that she was murdered, I read an opinion from the Fourth Circuit, Snyder v. Phelps, No. 08-1026 (4th Cir. 2009).

In that opinion, the court vacated a $5 million judgment awarded to the family of another brave soldier who lost his life defending our freedom. The defendants were members of a church, the only tenet of which, as best as I can figure, is that anything bad that happens to our country, including the death of a soldier, is a just punishment inflicted on the nation by God as retribution for our tolerance of homosexuality.

Not content merely to spew their brainless hatred in their church and on the Internet, these defendants go further. They attend the funerals of fallen soldiers, carrying picket signs containing vomit such as: “God Hates the USA”; “America is doomed”; “Pope in hell”; “Fag troops”; “You’re going to hell”; “God hates you”; “Semper fi fags”; and “Thank God for dead soldiers.”

The district court awarded the soldier’s family $5 million in damages under state tort law theories of invasion of privacy by intrusion upon seclusion, intentional infliction of emotional distress and civil conspiracy.

But the Court of Appeals reversed, holding the judgment violated the free speech rights of the defendants. The court held that the statements on the picket signs “do not assert provable facts about an individual, and they clearly contain imaginative and hyperbolic rhetoric intended to spark debate about issues with which the defendants are concerned.”

Even accepting that conclusion as valid, and that the First Amendment protects the statements in and of themselves, the question remains how the First Amendment could protect those statements on picket signs at a funeral.

The First Amendment allows for reasonable time, place and manner restrictions even on protected speech. One would think that any reasonable person, asked for an example of a reasonable time, place and manner restriction, would posit picketing at the funeral of a fallen soldier as such a restriction.

Our law makes distinctions in the formation of a contract between mistakes of fact and mistakes of law; we can distinguish between the mental states of malice, intent, recklessness and negligence; and we can distinguish between excusable neglect and inexcusable neglect when an attorney fails to file a document with the court on time.

Yet, somehow all our reason and our capacity for making relevant distinctions fails us whenever a mindless, hateful bigot invokes the First Amendment as a defense to reprehensible behavior (the key word there being behavior, not speech).

In its conclusion, the court acknowledged that the sanctity of solemn occasions such as funerals and memorials may be protected, and that “reasonable and content-neutral time, place, and manner restrictions may be imposed on activities that are otherwise constitutionally protected.”

Nonetheless, the court was incapable of recognizing tort liability as an appropriate remedy for conduct that would destroy the sanctity of the most solemn occasion we have.

However, there is a difference between the expression of an opinion and verbal vomit; and even if our most learned legal minds can no longer distinguish between the two, they should still be able to distinguish between vomiting in one’s own church and intentionally vomiting at a stranger’s funeral.

Freedom of speech is among the freedoms for which Sgt. Amy Krueger and other soldiers risk and sacrifice their lives. But our law makes a mockery of that sacrifice if it refuses to see the difference.