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The freedom to be an ideological hypocrite

Gary Caruso | Friday, March 4, 2011

The U.S. Supreme Court this week handed down an almost unanimous landmark ruling in Snyder v. Phelps. The 8-1 decision upheld, as First Amendment protected public discourse, a small church’s hate-filled shouts and picketing at the funeral of a Marine killed in Iraq in 2006. The Westboro Baptist Church’s leader, Fred Phelps, led many protests in which he and followers sullied funerals of fallen warriors with signs like “You’re going to hell” — a perverse hypocritical religious profession that death in war is God’s way of punishing the U.S. tolerance of homosexuality. It is difficult to find even the most ardent advocates of free speech who are delighted that the court approved such a classless ploy as protesting at private military funerals. The venomous tactics Phelps, a so-called church pastor, employs reeks with hypocrisy in the face of the overriding Christian tenet of love.

Phelps never limited his outbursts to slain military hero’s funerals. In 2007, his followers disrupted Christian minister and Moral Majority founder Jerry Falwell’s funeral. According to Phelps, Falwell was too soft on homosexuality when he accused the children’s television show character Tinky Winky of being a closeted gay but stopped short of action. Paradoxically, Falwell himself lost a First Amendment challenge nearly 20 years earlier when the Supreme Court ruled against him in favor of Hustler magazine, which had run a parody of the fundamentalist religious leader.

More recently, Westboro Church members spewed hate speech at synagogues in their anti-Semitic campaign that claimed all Jews are sinners. Phelps cancelled a plan to picket the funerals of those gunned down along with Arizona Rep. Gabrielle Giffords. He seemed to abandon that effort when absolute public furor emanated from all quarters of society.

Most purists will hold their noses to support the absolute freedom of expression for distasteful language. Our high court established a long tradition of historical precedents and principles unique throughout the world — freedom to express such diverse beliefs as anti-American sentiments through flag burning (Johnson v. Texas), vituperative anti-Catholic speech (Cantwell v. Connecticut) and neo-Nazi expression embodied in a parade march through a community of Holocaust survivors (National Socialist Party of America v. Village of Skokie). Regardless of how morally reprehensible or antagonistic the expression, freedom to articulate beliefs has ruled supreme.

In defense of Phelps, the American Civil Liberties Union noted in its friend of the court brief, “Outrageousness, in the area of political and social discourse, has an inherent subjectiveness.” The ACLU noted the court in the Falwell/Hustler case was correct in reaffirming that “a bedrock principle underlies the First Amendment … that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” But therein lays a second hypocrisy, that of the court’s lone dissenting “decider,” Justice Samuel Alito Jr.

Fast accumulating the most ardent conservative record on the court during his five-year tenure, Alito’s rulings thus far usually fall against established precedent or dominant positions of lower courts when favoring business interests or opposing governmental interests. Alito unabashedly wears his conservatism as a badge of honor both on and outside the court. As a speaker or guest at fundraisers for conservative organizations like the Manhattan Institute, Alito depicts such attendance as “not important.”

In his lone dissent this week Alito wrote, “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case. But respondents, members of the Westboro Baptist Church … brutally attacked Matthew Snyder, and this attack, which was almost certain to inflict injury, was central to respondents’ well-practiced strategy for attracting public attention.”

Last year, in United States v. Stevens, Alito also stood alone in opposition to his eight colleagues again professing a greater willingness to curtail speech. By an 8-1 vote, the court struck down a federal law banning videos that depict cruelty to animals as too broad a restriction of speech. Alito supported the ban, likening the limits to the unprotected freedoms of pornography.

In his first term alone, Alito cast the deciding votes weakening the McCain-Feingold campaign finance law and expanding corporate free speech in Garcetti v. Ceballos, but limiting free-speech whistle-blower protections for public employees who exposed government fraud. This flip-flop hypocrisy is typical of a so-called strict constructionist who speaks from both sides of his mouth — in one breath, “The constitution is not a living document, so follow what is written.” Next the caveat, “Except when those illegal aliens sneak in to give birth to a child. Don’t follow what is written; just deny that child citizenship.”

It should be no surprise then that Alito broke with protocol at a State of the Union Message to visually mouth his disagreement with President Obama’s warning of consequences arising from the court’s corporate free speech expansion in the McCain-Feingold ruling. After all, in Alito’s eyes, free speech can only be what he deems is free.

Gary Caruso, Notre Dame ‘73, serves in the Department of Homeland Security and was a legislative and public affairs director in President Clinton’s administration. His column appears every other Friday. He can be contacted at GaryJCaruso@alumni.nd.edu

The views expressed in this column are those of the author and not necessarily those of The Observer.