"Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances" reads the First Amendment to the Constitution. Are those provisions inviolate and set in stone, or may they be abridged judiciously in those rare instances where good judgment and restraint must trump literal interpretation?
In recent weeks, controversies over issues of religion and speech have posed a question: "Is it not time for judicial restraint to enable judgment and common sense to prevail?" Three such areas are the proposed construction of a mosque near ground zero, declaring the Stolen Valor Act unconstitutional by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit and the finding by U.S. District Judge Fernando Gaitan that Missouri's laws restricting protests during funerals violate the right of free speech.
As for the right to construct a mosque near ground zero or at any other location, most concede that the Constitution not only enables that construction but also enjoins the government from interfering. The freedom of religion clause being unmistakably clear, where is the rationale for challenge?
While an inalienable right to perform an act may exist, the propriety may be open to question—is it appropriate to do so? To many, particularly those who lost loved ones or are survivors of the attack on the World Trade Center, or who are residents of New York, that is hallowed ground—its memory to be preserved with dignity and respect. The sensitivity of the circumstances creating ground zero must be considered and respected by people of all faiths—condemning as bigots or racists those opposed to the mosque is no different than denouncing its proponents as endorsing terrorism.
The solution will require the wisdom of a Solomon and a dollop of adult cooperation—in the end, possessing the right to do something does not render it right to do so. To many, erecting a mosque at ground zero equates to locating a Hooters in Mecca—insensitivity exists in the eyes of the beholder. No one has asked me, but the resentment for that location of the mosque will endure far longer than the displeasure in agreeing to its relocation—compromise anyone?
The utter absurdity of this 9th U.S. Circuit Court of Appeals ruling: "Given our historical skepticism of permitting the government to police the line between truth and falsity, we presumptively protect all speech including false statements that protected speech may flourish in the shelter of the First Amendment" should be a wake-up call to all of us. In ruling the Stolen Valor Act (falsely claiming military honors) unconstitutional, the panel implanted a "right to lie" in the First Amendment.
Unfortunately, this is not without precedent—we see this failing enacted in practice by legislators on both sides of the aisle and even by a chief executive who taught our youngsters that "truth" depends upon the meaning of "is." Given its nearly perfect record in being overturned by the Supreme Court, we can hope the 9th Circuit's ruling in favor of pretenders will not stand. As a nation, we cannot afford to relegate truth to the rubbish that is moral relativism.
Lastly, but equally frustrating, is the overturning of the Missouri laws barring protests near any funeral service for an hour before and an hour after the ceremony, procession or memorial service and requiring the protesters to remain at least 300 feet away. This decision was occasioned by an ACLU lawsuit on behalf of the Westboro Baptist Church of Topeka, Kan. (an entity even more obnoxious than the Vikings' Brett Favre or Miami's LeBron James). Judge Gaitan stated a sympathy for the funeral goers but admitted his hands were tied by precedent.
Most Americans agree that freedom of speech is so precious that they are willing to err on the side of the precept of its inviolate nature. But, the notion that all speech is protected fails to consider Associate Justice Oliver Wendell Holmes' metaphor in Schenck v. United States: "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic." Consequently, if panic-inciting speech can be restricted, why is it that indecent and vulgar language of a nature to cause undue suffering among already grieving persons cannot also be a target for prohibition?
The idea that enforcing protection for those mourning their war dead against the reprehensible conduct of those chanting "God hates fags" and claiming military war deaths are the Deity's retribution for embracing homosexuality will set a precedent further eroding the First Amendment is asinine. Embracing such obvious criminal conduct as a "freedom of expression" is not compatible with my America.
Finally, I am not a believer in a "living Constitution"; instead, I am a strict constructionist. Nevertheless, the framers did not intend the Constitution as a vehicle for ignoring judgment, common sense, personal conduct and an accepted standard of mores to negotiate a path for its destruction.
J. Karl Miller retired as a colonel in the Marine Corps. He is a Columbia resident and can be reached via e-mail at JKarlUSMC@aol.com.