December 22, 2012

Why Westboro Baptist gets away with obnoxious shit

and why... even though they are a bunch of obscene, obnoxious, offensive assholes... that is okay.

The 5-4 Supreme Court case of Rosenberger v. University of Virginia has been cited by those arguing that the government may not impose viewpoint-based restrictions by revoking the tax-exempt status of the Westboro Baptist Church. The case involved the University’s refusal to use the Student Activities Fund (SAF) to pay for a Christian student newspaper, Wide Awake. The University argued that an SAF Guideline prohibited funds going to an activity that “primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality.” The District Court ruled for the University, and the United States Court of Appeals for the Fourth Circuit disagreed saying that there is a “presumptive violation of the Speech Clause when viewpoint discrimination was invoked to deny third party payment otherwise available.” 

The Court held that “[t]he Guideline invoked to deny SAF support, both in its terms and in its application to these petitioners, is a denial of their right of free speech.” J. O’Connor, wrote in her concurrence, that “[w}hen two bedrock principles so conflict, understandably neither can provide the definitive answer.”

 J. Kennedy, in the opinion of the Court, wrote:
The first danger to liberty lies in granting the State the power to examine publications to determine whether or not they are based on some ultimate idea and if so for the State to classify them. The second, and corollary, danger is to speech from the chilling of individual thought and expression.

 J. Souter, in his dissent, wrote, after noting the publication’s proselytizing: 
Using public funds for the direct subsidization of preaching the word is categorically forbidden under the Establishment Clause, and if the Clause was meant to accomplish nothing else, it was meant to bar this use of public money.

 J. Souter quoted James Madison’s Memorial and Remonstrance, in which Madison opposed “A Bill establishing a provision for Teachers of the Christian Religion,” and wrote:
Who does not see that . . . the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

J. Thomas points out that Madison’s opposition to the bill that required contribution to religious entities was because the bill singled out those entities for special benefits.

Madison noted that the bill “violates the equality which ought to be the basis of every law.”

 J. Souter notes the inequality, and writes that evenhandedness:
as one element of a permissibly attenuated benefit is, of course, a far cry from evenhandedness as a sufficient condition of constitutionality for direct financial support of religious proselytization, and our cases have unsurprisingly repudiated any such attempt to cut the Establishment Clause down to a mere prohibition against unequal direct aid.
The direct financial aid found in Rosenberger is different from the indirect aid found with tax-exempt entities such as the Westboro Baptist Church. J. Souter’s compelling arguments against direct aid wouldn’t see to apply to the indirect financial aid we find in tax exemption.

Mr. Drumm has this one nailed. We may not like some of the sewage that bubbles up in a cloak of constitutional protection, but we must swallow the desire to deny them that right. If we do not, we disallow ourselves the same protection. 

As abhorrent as I find the Westboro loons, I see no legal remedy that would allow the force of law to silence them that would not come around to bite us all in the butt. 

H/T: David Drumm,  Eugene Volokh, Jonathan Turley.