California Hippiespeak Comes to the U.S. Supreme Court

Although your Wizard has never personally argued a case before the U.S. Supreme Court, it is undoubtedly a daunting task.  The courtroom itself is majestic and impressive, and it is designed -- if not in intent, but certainly in effect -- to be humbling. 

One can only imagine, then, the butterflies that took up residence in the digestive system of one Jonathan Libby, who recently argued for the respondent in U.S. v Alvarez. 

Mr. Libby's client, Xavier Alvarez, had been convicted of violating the Stolen Valor Act, a 2006 federal law that made it a crime for a person to falsely claim that he had been awarded a medal for service in the armed forces.  It turns out that Alvarez, an elected member of the Board of Directors of the Three Valleys Water District in Claremount, California, stated to his fellow members during a meeting: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medial of Honor.  I got wounded many times by the same guy. I'm still around.”

These statements were lies—he never served in the Marines or received a Medal of Honor. In fact, Alvarez had frequently lied about his accomplishments in the past, often fabricating sensational stories about his purported military service.

After his conviction, Alvarez appealed to the U.S. Court of Appeals for the Ninth Circuit, which reversed the conviction, holding that the Stolen Valor Act violates the First Amendment because it unconstitutionally limits free speech and is not narrow enough to meet a “compelling government interest.”

So that brings us to the argument before the Supreme Court.  After hearing from the U.S. Solicitor General, the Court called on deputy public defender Jonathan Libby:

          MR. LIBBY: Thank you, Mr. Chief Justice, and may it please the Court:

The Stolen Valor Act criminalizes pure speech in the form of bare falsity, a mere telling of a lie. It doesn't matter whether the lie was told in a public meeting or in a private conversation with a friend or family member. And the law punishes false claims to a military award regardless of whether harm results or even is likely to result in an individual case.

CHIEF JUSTICE ROBERTS: What is -- what is the First Amendment value in a lie, pure lie?

 MR. LIBBY: Just a pure lie? There can be a number of values. There is the value of personal autonomy.

 CHIEF JUSTICE ROBERTS: The value of what?

MR. LIBBY: Personal autonomy.

CHIEF JUSTICE ROBERTS: What does that mean?

 MR. LIBBY: Well, that we get to -- we get to exaggerate and create -

CHIEF JUSTICE ROBERTS: No, not exaggerate -- lie.

MR. LIBBY: Well, when we create our own persona, we're often making up things about ourselves that we want people to think about us, and that can be valuable. Samuel Clemens creating Mark Twain. That was creating a persona, and he made things up about himself -

CHIEF JUSTICE ROBERTS: Well, but that was for literary purposes. No one is suggesting you can't write a book or tell a story about somebody who earned a Medal of Honor and it's a fictional character, so he obviously didn't. It just seems to me very different.

 MR. LIBBY: Perhaps. But there are other things. In addition to the fact that people tell lies allows us to appreciate truth better.

So Mr. Libby would have the Court create constitutional doctrine on the psychobabble of "personal autonomy" and "lies allow us to appreciate truth better."  I think Mr. Libby may have spent too many years in the public defender's office or in California or both.  How about "murder is an expression of self-esteem and helps us appreciate life better" -- does that argument work for you?

I cannot predict the outcome of this case -- the Court will be sympathetic to Congress's intentions, but it has applied the First Amendment pretty broadly -- but I pray that, even if Alvarez prevails, the Court does not turn its hallowed courtroom into a haven for arguments more appropriately made on the Jerry Springer or Dr. Phil shows. 

Being a Judge Means Following the Law, No Matter How Distasteful

Last year's Michigan Supreme Court race featured a fairly clear choice between rule-of-law judges and empathy judges.  The former discern the law and apply it as they find it; the latter rule based on personal whim and feeling, contorting the law to fit their preordained results. 

Sometimes, the rule of law is painful to watch, but it is in these moments when it is most needed.  Judges don't get to make only the easy calls; they have to make tough, occasionally excruciating decisions.  This is the situation that confronted the U.S. Supreme Court in the case of Snyder v Phelps, the anxiosly awaited First Amendment case addressing picketing by the Westboro Baptist Church.  The Court issued its opinion today, available here.

Here are the facts, from the case syllabus:

For the past 20 years, the congregation of the Westboro Baptist Church has picketed military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in America’s military. The church’s picketing has also condemned the Catholic Church for scandals involving its clergy. Fred Phelps, who founded the church, and six Westboro Baptist parishioners (all relatives of Phelps) traveled to Maryland to picket the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty. The picketing took place on public land approximately 1,000 feet from the church where the funeral was held, in accordance with guidance from local law enforcement officers. The picketers peacefully displayed their signs—stating, e.g., “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys,” and “You’re Going to Hell”—for about 30 minutes before the funeral began. Matthew Snyder’s father (Snyder), petitioner here, saw the tops of the picketers’ signs when driving to the funeral, but did not learn what was written on the signs until watching a news broadcast later that night.

Snyder filed a diversity action against Phelps, his daughters—who participated in the picketing—and the church (collectively Westboro) alleging, as relevant here, state tort claims of intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. A jury held Westboro liable for millions of dollars in compensatory and punitive damages. Westboro challenged the verdict as grossly excessive and sought judgment as a matter of law on the ground that the First Amendment fully protected its speech. The District Court reduced the punitive damages award, but left the verdict otherwise intact. The Fourth Circuit reversed, concluding that Westboro’s statements were entitled to First Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric.

Held: The First Amendment shields Westboro from tort liability for its picketing in this case.

Can there be anything more distasteful and sickening than the hate-filled rants of these Westboro kooks?  Does the First Amendment really protect this bigotry and invective?

No and yes, respectively.

Legally, this turned out not to be even a close question -- the margin on the Court was 8-1, with only Justice Alito dissenting.  One has to concede admiration for Chief Justice Roberts, who authored the majority opinion and who, I am certain, wishes he had been able to lead a unanimous court in this important case.  Chief Justice Roberts concluded his opinion this way:

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

Undoubtedly, there will be many who decry this decision and call for, oh, something to be done.  But what?  Congress can pass a law making Westboro's conduct illegal, but such a law would itself be unconstitutional under the principles outlined in the Snyder decision.  

 

The First Amendment makes blogging possible.  Yes, it protects flag burning and Nazi marches, but it also prohibits speech codes and attempts to muzzle a free press and the free expression of ideas that characterizes healthy political discourse. 

 

The Snyder decision is not an endorsement of Westboro or its lamebrained antics; rather, it's a example of the majesty and breadth of the First Amendment and a reminder that the rule of law can be extremely difficult.  It is at these times, at the outer edges of freedom, that we must demonstrate our commitment to the Constitution and the exraordinary framework the Founders gave us.

And we must thank God for the Constitution and pray for all the men and women in our military.  And while we're at it, let's pray for the misguided souls at Westboro, that God may touch their hearts and minds, showing them His way.

A National Day of -- oh, never mind.

A Wisconsin federal court judge's recent decision that the National Day of Prayer is unconstitutional has caused a lot of people to sit up and take notice about just what is going on in our nation's courtrooms. For a look at this case and others, with a clue as to a common factor, go here.

Gretchen Whitmer and the Assault on Free Speech

Conspiracy theorists imagine wide, well-coordinated, concerted efforts to pursue particularized agendas. To some extent, these efforts exist, though I would not necessarily call them conspiracies, since that implies something sinister. For example, when the White House changes its message or adopts new terminology (think about the change from "health care reform" to "health insurance reform" to make insurance companies the target), memoranda go out, talking points are distributed, and the organization -- the MSM included -- delivers a coordinated message.

Beyond that sort of rudimentary message distribution, widespread conspiracies are hard to implement, and one should take such accusations very skeptically. It is far more likely that persons pursue similar agendas, not because they are engaged in a conspiracy, but because they share a particular ideology or worldview.

This is the alarming condition -- the number and variety of initiatives spawned, not by conspiracy, but by a common disregard for constitutional liberties and an infatuation with government power.

Cue Gretchen Whitmer.

Last week, I wrote about Whitmer's SB 668, in which she seeks to force crisis pregnancy organizations to distribute abortion information in violation of their rights to free speech and freedom of religion.

SB 668 could be an isolated meandering into the wilderness, but there are numerous other examples of assaults on free speech that suggest Whitmer is part of a greater problem. For example:

-- Sen Jay Rockefeller's staff has been working for months on a bill giving The One the power to seize private sector computer networks during a "cybersecurity emergency" that would be declared by, of course, The One Himself. (Remember that scene in Episode III where Emperor Palpatine "reluctantly" accepts the
emergency powers bestowed on him by his puppet senators and pledges to relingquish them once the emergency is over? Life imitates art.)

-- The Coalition for Urban Renewal and Education and the Association of American Physicians and Surgeons have sued the White House, alleging violations of their First Amendment and privacy rights. Remember the website set up by The One to allow people to report if they believed their fellow citizens were spreading misinformation about the health care bill? Well, what do you think happened with the complaints the White House received? Apparently, right back to The One's friends, who began their campaign of intimidation. As Kathryn Serkes, AAPS' Director of Policy and Public Affairs, put it, "My hate mail started shortly after the White House issued the 'fishy' request. We were quite visible and vocal before then, so it doesn't seem like a coincidence. Who did they share their data with? With whom might they share it?"

-- Democrats and the SEIU pack "town hall meetings" to keep dissenting voices from being heard, school officials in Florida are prosecuted because they had the nerve to say grace before a luncheon meeting, and on and on.

These events are not themselves connected, but the people behind them are -- connected by a philosophy that treats constitutional rights as obstacles to be overcome or ignored, rather than sacred endowments to be treasured and protected.

Gretchen Whitmer, who wants to be attorney general, is part of this anti-constitution mob. She, like the rest, will pay lip service to the constitution, but ultimately she will side with political expedience and opportunism.