Hearing Justice Alito, at least a form of originalist, had dissented in the very difficult case of the foul mouthed wacko protesters at a military funeral had me running to read his words to see how he got it wrong. Because when folk who claim to a certain level of purity go out on a limb, well, that is when you find out what is really going on. And there is it in the second paragraph of his opinion [warning: .pdf]:
Mr Snyder wanted what is surely the right of any parent who experiences such incalculable loss: to bury his son in peace. But respondents, members of Westboro Baptist Church, deprived him of that elementary right.
See, no matter how awful and stupid the protests were, not matter how hurtful their effect… they did not trigger a “right” of the parent. A right is a relationship set out in law. Do we have a right to be left alone in grief and respected? No, because we should have respect at that moment as a matter of cultural norm. Decency. The members of Westboro Baptist Church were unbelievably indecent and, frankly, clearly have a higher authority to answer to in the Christian construct for their act of judgment. But there is no right. Free speech, however, is a right in the US constitution for which there are legal protections. To balance that, Alito needs to make something up which he does at page 11 when he states that funerals are unique events at which special protection against emotional assault is in order. Where does that come from? His sense of decency. Which is great and admirable and what we all wish for. But it is not of the constitutional order of things.
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