Steve Fogle's Feature

Steve Fogle's Feature Lest We Forget

In 1897, Rudyard Kipling penned the words “Lest we forget – lest we forget!” as the refrain for the poem “Recessional.” These words have been liberally borrowed over the years to invoke gratitude for past service and sacrifices, especially those made by our honored military dead. As I read the United States Supreme Court’s recent opinion striking down the verdict against the Westboro Baptist Church for picketing military funerals, Kipling’s prophetic words came back to me.

In Snyder v. Phelps, the Supreme Court ruled that Westboro Baptist Church could not be held liable for monetary damages sought by the family of a fallen soldier as a result of the church’s picketing the funeral. As the Court explained, “Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials… [and] this Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled[.]” For these reasons, the Court held the verdict violated the church’s First Amendment right to free speech.

In the weeks since the opinion was released, many voices have joined the discussion—and it is certainly a discussion: ongoing, passionate, reflective of our core values, as well as our desire to keep those values relevant for our present and future.

Lest we forget these brave men and women, we fly flags at half mast, drape their coffins with our colors, observe a moment of silence before major events, and wear lapel pins to remind us of their daily and sometimes permanent sacrifice. Most of us are able to make the short leap of reason to understand that the decisions which draw the ire of the Westboro congregation are not the soldiers who stand guard on the wire and in the trenches. We are able, with minimal effort, to separate our feelings between those brave souls who fight our wars and those who send our sons and daughters to fight. In a highly visceral way, picketing the funeral of a fallen soldier to protest a policy decision made by our elected representatives seems foolish and inaccurate at the very least. Compounding the grief of the soldier’s family is cruel and indecent.

Yet, lest we forget, those soldiers also fought and died for the right of others to say they died in vain, that they were pawns in a giant corporate/government chess game that line the pockets of the rich and powerful, that they were just as much at fault for their death because they did not stand up against rules some think are sacrilegious, illegal, and immoral. The Constitution these soldiers swore to defend allows the same room for “bad speech” as it does for “good speech.” At the heart of the matter is our national commitment to keeping the government out of the business of defining speech as good or bad; allowed or not; permitted or not.

The America we strive to create as the marketplace of ideas must be as robust, unfettered, and free-wheeling as possible. There are time, place and manner boundaries, to be certain, but those were not violated in this case. Some argue for new or additional standards but then, how would we treat speech that goes “too far?” It used to be much easier. Take William Twyn for example. In 1663, William printed a book that endorsed the right to revolution. The book was interpreted to envision murdering the King, although Twyn never actually said so. For this ambiguity, he was convicted of treason, sentenced to be hung, cut down while still alive, emasculated, disemboweled, quartered and beheaded. Swift and to the point.

Our national passion for allowing lots of free speech is easy to see in the context of Tywn’s alleged crime. It seems harder to preserve the principle which abolished such extreme and harsh punishment when such events are mere historical artifacts. To do so, we must remember that the Constitution was never meant to mandate good behavior. It was written to fashion a loose form of government that would allow the marketplace of commerce, religion, and ideas to develop themselves according to the will of the people. Messy? No doubt. Aggravating, especially to the elected government? Absolutely. Necessary for us to realize the full measure of our potential? Undeniably.

As a former soldier, I find the actions of the Westboro congregation to be abhorrent to every decent thread of reasoned behavior. I loathe their self-righteousness and lack of compassion for the grief and pain of fellow human beings. They prey on the weak and crow about it as if that makes them strong. They manipulate the shock value of protesting at funerals of our fallen soldiers to bring attention to their opinions.

Yet, the First Amendment doesn’t mandate compassionate, humane, or even polite speech. (Note to Westboro: it doesn’t prohibit it either.) The ideals embodied in our Constitution arm us with the ability to fight a bad argument or idea by expressing a better one – not by silencing the first speaker. Loudly, proudly, and hopefully with some greater compassion for the time, place, and manner in which it is delivered than the Westboro congregation used, better arguments will prevail.

I personally wish that the Westboro congregation would find a more considerate way to express their opinions. I would rather they petition their representatives, write letters to editors, blog, hold rallies or marches. Anything is preferable to exploiting the raw emotions of the families our soldiers leave behind.

Lest we forget, however, their right to express an opinion enjoys the same protection as my right to call their actions misdirected, callous and counterproductive.

— Steve Fogle is a partner at Jackson Walker. He can be reached at sfogle@jw.com.