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Distasteful speech protected, too

– I take it personally when people toss around anti-gay rhetoric, call men “fags,” screech about “homos.” I think they have ugly hearts and mean spirits. I’d like to wash their mouths out with soap.

I think the gay-bashing Kansas preacher and members of his church/cult who picket the funerals of veterans are despicable. The members of the Westboro Baptist Church (who have brought their vicious protests to funerals in Fort Wayne) wave signs that say “God hates fags” and contend that God is punishing the nation for its pro-gay views.

But I do not think the Supreme Court should rule the hatemongers can’t do what they do, and I think Indiana’s attorney general was wrong to add our state’s lobbying power to the 47 other states that asked the court to let them stunt the First Amendment when it comes to speech most people find reprehensible.

Since 2006 it has been against the law to carry protest signs, hand out leaflets or in any way block the entrance and exit at the 131 Department of Veterans Affairs cemeteries and Arlington National Cemetery. In addition, dozens of states have adopted laws that restrict protests in the vicinity of funerals.

The Supreme Court case was brought by the father of a soldier who was killed in Iraq and was buried in a private ceremony. The Westboro gang protested; the father won a $5 million lawsuit; an appeals court overturned that ruling; and the Supreme Court has agreed to hear the case.

What the justices will do is decide three questions:

Can someone be awarded damages for hurt feelings?

Does the freedom of speech guarantee in the First Amendment trump freedom of religion and peaceful assembly, also guaranteed by the First Amendment?

Is an individual attending a family member’s funeral a “captive audience” who is entitled to the government’s protection from unwanted blather?

This is an emotional issue. No rational, compassionate person wants a grieving family to function, unwittingly, as the backdrop for some misguided goofball’s social commentary. Especially the family of a veteran. Especially during a war.

But there is something worse than a brokenhearted family enduring the tirades of a small, albeit revolting, group. What is worse is what Indiana and 47 other states want the Supreme Court to allow: piercing the heart of the Constitution and the freedoms those veterans fought to preserve.

Forty-two members of the Senate filed a friend-of-the-court brief arguing that “the right to speak freely about matters of public concern does not encompass insults and verbal abuse intended to invade a private memorial ceremony and injure its participants. Respondents were and are free to convey their repugnant message in virtually any public manner they choose. But they were not free to hijack petitioners’ private funeral as a vehicle for expression of their own hate.”

Bravo to the two Hoosier senators, whose names are not on the brief. I hope that means that Sens. Evan Bayh and Richard Lugar take exception to their colleagues’ contention that the Constitution does not protect unmannerly speech and that bruised feelings – no matter how justified – constitute an injury.

Indiana Attorney General Greg Zoeller and 47 other attorneys general say the case boils down to this:

“May the states protect the privacy and emotional health of grieving families from the psychological terrorism of persons who target such families with hostile picketing at funerals and Internet postings that include personal attacks on the families and their deceased children?”

Psychological terrorism? Really?

Let’s put hyperbole aside and take a deep breath.

The Constitution does not guarantee people the right to a solemn funeral. Americans do have a right to speak freely about public matters. Nonetheless, that does not mean the government can’t put some restrictions on how that free speech can be contained. You can’t, for instance, use a jackhammer at 3 in the morning in a residential neighborhood and insist that you are protesting an increase in sewer rates.

However, the court should not conclude that people can collect damages when protesters make them sadder than they already are. The court should also refuse to categorize funeral attendees as a “captive audience” that deserves special government protection.

What the court should do is agree that states could put reasonable restrictions on actions that can disrupt a funeral. Those restrictions must be narrowly drawn, however, and Indiana’s law that prohibits “fighting or tumultuous conduct” within 500 feet of a burial or funeral ceremony is not reasonable. Five hundred feet is nearly 1.5 times the length of a football field. Some city blocks are not much longer than 500 feet.

Distance from a funeral aside, is a mute protester carrying a “God hates fags” sign the same as “fighting or tumultuous conduct?”

The hardest speech to protect is from socially repugnant groups. But if the First Amendment means anything, it’s those groups that need our protection the most.

Sylvia A. Smith has worked at The Journal Gazette since 1973 and has covered Washington since 1989. She is the only Washington-based reporter who exclusively covers northeast Indiana. Her e-mail address is sylviasmith@jg.net. Her phone number is 202-879-6710.