Will Militarization of the First Amendment Undermine the Republic?

The U.S. Supreme Court is hearing a case where the father of a fallen serviceman is suing members of a church over its picketing of military funerals with signs that say, “Thank God for Dead Soldiers,” “God Killed Your Sons,” and “Thank God for 9/11.” These protesters are hardly from a left wing antiwar group. They are members of the conservative Westboro Baptist Church, which has picketed the military funerals of about 200 families. The church believes that 9/11 and American soldiers’ deaths in the “war on terror” are God’s way of punishing the United States for tolerating homosexuals.

The trial court said that the members of the church had to pay the serviceman’s father $5 million for invasion of privacy and intentional infliction of emotional distress. But a unanimous three-judge panel of the 4th Circuit Court of Appeals in Richmond, Va., overturned the court’s opinion. The appeals court judges called the church member’s protest “distasteful and repugnant” but protected by the Constitution’s First Amendment right of free speech.

The serviceman’s father’s brief before the Supreme Court says the church members have a right to free speech but not to “hijack [a] private funeral as a vehicle for expression of their own hate.” It argues that purposeful attempts to insult and invade privacy are not constitutionally protected. This is the popular position, especially with the current militarization of American society—with adulation pouring out from politicians and the public for the military and its members. Forty state legislatures and Congress have passed laws restricting such speech at military funerals. The serviceman’s father’s Supreme Court brief has received support from the attorneys general of 48 states and the District of Columbia, the majority and minority leaders of the U.S. Senate, and 40 senators of both parties.

But First Amendment scholars and the media correctly realize, as did the Court of Appeals, that although the speech is vile and repugnant, the First Amendment of the Constitution protects it. If the government starts shutting down speech that it doesn’t agree with or that isn’t favored by a majority of the population, everyone’s liberty to speak freely and influence the government is at risk. According to the Washington Post, one of the members of the church noted that the First Amendment has survived pornography, flag burning, filth on the Internet, and allegedly seditious speech, so the question is whether it can survive a few words from a small church. It needs to.

Admittedly, the church members’ words are unbelievably obnoxious at any funeral where loved ones are mourned, whether it’s military or civilian. The persons doing the protests should be ashamed of themselves. But that is not the question. Preservation of liberty in a republic is undergirded by the ability for people to speak freely without penalty, no matter how distasteful the speech.

How the Supreme Court should rule is clear; but in many past instances they have deferred excessively to the military and national security and public passions about them. And it has gotten worse as U.S. foreign policy has been militarized after the Korean War—with the creation of the first permanent large peacetime army in the nation’s history. After the Vietnam War, the advent of the all-volunteer force, and 9/11, the adulation of the military has reached new heights. The military should have been criticized for blinding incompetence after failing to learn the lessons of counterinsurgency from Vietnam, thus bungling the early stages of the military occupations of Afghanistan and Iraq, but only worship poured out from the American people and its politicians.

Why has this reverence for the military arisen and become patriotic when it runs counter to the nation’s founders’ suspicions of large standing armies and foreign military adventures? A skeptic would attribute the excessive exaltation to guilt. Part of it is overcompensation for guilt from stories of verbal abuse after servicemen returned from Vietnam. How widespread this abuse was is open to debate, but some guilt probably should be present, because unlike the volunteer participants in Afghanistan and Iraq, most of the soldiers in Vietnam were shanghaied for service by their government against their will.

Yet today’s volunteer military also has people feeling guilty. Only a small number of people are needed to fight today’s needless and counterproductive wars, leaving the rest of us to watch the Super Bowl, shop at the mall, etc. Many people feel guilty for not sacrificing more in time of war. Instead of doing this, maybe people should feel guilty about not opposing the wars before the president and Congress send these servicemen into unneeded bogs.

Finally, after the diabolical 9/11 strikes, the public has allowed itself to be duped into thinking that avenging these attacks by U.S. military invasion and occupation of Islamic lands is a good idea. According to Osama bin Laden’s writings, however, U.S. meddling and military occupation of such lands motivated his anti-U.S. attacks in the first place. So maybe avoiding such quagmires, and thus bin Laden’s ploy to get more recruits and money for his cause, would have been a better idea.

Ivan ElandThe Supreme Court may once again succumb to the further militarization of U.S. society by widening exemptions to the First Amendment to include military funerals. This militarization is not only bad for the republic but even worse for the military and its service members. After all, they are the ones left holding the bag when fighting in faraway, unneeded, pointless, and bloody quagmires. Thus, service members should be wary of excessive flattery thrown their way.

Ivan Eland

This article first appeared in The Independent Institute and is republished with permission.

Mein Kampf


  1. Jackass1776 says

    Well we got ourselves a Liberal/progresive who siding with Fred Phelps and Klan picketing Military Funerals and other sick acts. Back in the 90’s Liberals/Progressives where outraged when Fred Phelps picketed at AIDS victims and Gay Funerals while The Religous Right portected Fred Phelps. From 2001 to today Fred Phelps is picketing at Military Funerals and 9/11 victims, where were the Liberals/Progresives outrage? Silence and zero. Why? Since they oppose US involvement in Iraq and Afghansitian the Liberals/Porgresives gave Fred Phelps a Free Pass since he opposed both the wars.

    Since the 90’s Liberals/Porgrisves along with the Anti-War movement lost its moral compass when they sided the the Masterminds of Rwandan Genocide, Milosevic’s racist wars in Bosina and Kosovo, Timothy McVeigh burtal murder of 168 fellow Americans at OKC and Osma bin Laden and the 9/11 attacks and the Darfur genocide

  2. says

    The Westboro picketers go all over the country. They came to Long Beach to picket my congregation (Conservative Jewish), from the presumption (a stereotype, but correct in our case) that we are tolerant of gays. Many local congregations, of various faiths, sent representatives to counter-picket Westboro.

    The First Amendment issue really has nothing to do with whether the funeral was ‘military’ but whether indeed it was ‘private’. A ‘private’ funeral would have had to be NOT a sponsored event of the US Armed Forces (albeit it could have used all sorts of military symbolism); and moreover the grounds used by the Westboro picketers would have had to have been closed to the public, whether generally or for the occasion. Otherwise, either the funeral or the grounds used by the protesters would have been public; and so, one would presume and hope, the First Amendment would protect not-necessarily-disruptive (i.e. silent) speech.

    I therefore wish the article would have clarified the precise circumstances, instead of drumming up a largely fictitious sort of conflict between the US military and the First Amendment (actual conflicts do exist, e.g. DADT).

    The article’s other thoughts – whether correct or not – on the role of the US military are largely beside the point. Yes, people do adore the military, or have patronizing guilt feelings toward it. Yes, the USA would be better off without getting into quagmires abroad. No – despite bin Laden’s self-serving writings – there is scant evidence that if the USA were totally out of such quagmires (as we largely were on 9/11) that Qaeda and other groups would call off their long-term jihad for global Islamic supremacy, for repressive sharia-enforcing regimes in Islamic lands, and against the world’s biggest infidel Satan: the USA.

  3. marshall says

    What would you think of the same church group that attends military funerals giving the same treatment to every gay funeral they could find? I do not think their free speech extends to a point where they are allowed to cause mental harm to others attending a funeral for anyone. What say you??

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