The Supreme Court Conducts a Military Funeral

When they finally posted Snyder v. Phelps, a recent Supreme Court decision, I threw away one hour of my life poring over the metaphysical cogitations of that most arcane of government committees on the subject of free speech and funerals. You already know (or maybe not) that I am a professor of sociology and that one of the subjects with which I get to badger crowds of twenty-somethings is the sociology of law. So, Supreme Court decisions, their illogic, their inanities, and their language, as distanced from real human life as if written by Martian invaders taking a sardonic turn about the room, are nothing new to me. However, this decision did manage to get my hackles up enough to write a short diatribe. What is all this about?

The Westboro Baptist Church (Baptist? a Church?) was up to its old hijinks in that on March 10, 2006 it again picketed another funeral, that of Matthew Snyder, a 21-year old Marine who gave his life for his country in Iraq. For those of you who need catching up, Westboro is an outfit founded and run by a religious maniac named Fred Phelps who claims that the deaths of American soldiers in battle are a result of the toleration of homosexuality that exists in American society. He and his small band of malicious fanatics (all relatives of the same Phelps) travel about the country picketing funerals. The signs above should provide a sense of the wackiness these servants of the Lord feel it incumbent upon them to wave about at military funerals. It should be noted that Matthew Snyder was not gay, was Catholic (another group Westboro merrily defames) and was a private person who had no part in this debate nor did any of his family.

On the day of the funeral, the group from Westboro was picketing at a distance in conformity with Maryland law. Albert Snyder, the father of the fallen Marine, saw only the tops of the signs and learned what they said after the funeral. Nonetheless, he suffered traumatic health consequences from this episode and sued Phelps and Westboro in Federal District Court in Maryland for intentional infliction of emotional distress, among other things. The District (or trial) Court decided in favor of Snyder on some of the state tort issues and awarded him $5 million in damages. The church appealed and the Fourth Circuit reversed the District Court’s decision. The case came to the United States Supreme Court on this basis. The Supreme would have to decide if the District Court or the Appellate Court was correct.

Of course, the decision in any court rests on the way that the law is construed by the courts. Since intentional infliction of emotion distress was an issue, it had to be decided if the trauma experienced by Albert Snyder was of such an extreme kind that freedom of speech itself could be held in check to protect him from experiencing it. Any reasonable person should be able to appreciate the highly emotional nature of a funeral and that it is one of the most, and maybe the most, sacred and respectful actions taken by any civilized society. Surprisingly, the only mention of funerals or their particularly profound nature made by the Supreme Court in upholding the decision of the Appellate Court is to pontificate that the character of funerals does not place them outside the orbit of the requirements of free speech doctrines. Why shouldn’t you be treated to some of the Supremes’ verbiage:

"Westboro’s choice to convey its views in conjunction with Matthew Snyder’s funeral made the expression of those views particularly hurtful to many, especially to Matthew’s father. The record makes clear that the applicable legal term—“emotional distress”—fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief. But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a “special position in terms of First Amendment protection.” United States v. Grace, 461 U. S. 171, 180 (1983). “[W]e have repeatedly referred to public streets as the archetype of a traditional public forum,” noting that “‘[t]ime out of mind’ public streets and sidewalks have been used for public assembly and debate.” Frisby v. Schultz, 487 U. S. 474."

Here is where law tends to go off the rails. Yes, the picketers were on a public street, peacefully protesting, but they were protesting at a FUNERAL. Context must make some difference. You are free to shout “FIRE!” but not in a crowded theatre unless there is a fire. The decision if you read it, and I recommend that you do (just follow the link) has implicit within it the notion that the law is concerned with its own internal logic and sense despite what havoc they may cause to us mortals. But there are other considerations that the logical-rational operation of Western law considers vital. The Kantian categorical imperative must be part and parcel of the law. Its prescriptions and proscriptions are universal. What is good for one is good for all. The Court could just as easily have said that the exercise of free speech stops at the horizon of the funeral. Westboro, as the only dissent by Judge Alito made plain, has a thousand other venues to express its odious opinions. I am not suggesting that Phelps and his ilk should be censored. They can shout their line from the housetops for all I care. But, for every street corner rendered unusable by the presence of a funeral, there are 10,000 other street corners where picketers are free to purvey the same filth, some of them more trafficked and more likely to get attention. There are newspapers and the Internet and so on. Just because they happen to strike upon the name of Matthew Snyder and in their maniacal logic deem his death worthy of opprobrium does not mean that they should be able to render the occasion of his funeral a subject of national discussion and personal anguish. But that is exactly what the Court has said. They blithely acknowledge attempts of states to prohibit all funeral picketing, but by the tone of that acknowledgement I am not encouraged what that future decision might be. In fact, it would seem to me that those who picket funerals should be open on principle to the torts of which Westboro was accused. That would be a much better way to control the situation than trying to solve the problem on a free speech basis or a basis of location.

The principle that the court has established is as insane as the activities of Westboro itself. (Recent news story quotes members of Westboro promising to quadruple the number of funeral protests in the wake of the Court’s decision.) The Court seems to suggest that if some group of people believes that the decision of the Court in this case is sacrilegious, it can picket the funerals of Supreme Court judges and their children with signs that say “God Punishes Disrespect” and “Families Go To Hell who Cannot Tell the Difference Between Right and Wrong” or “American Soldiers Die Because Funerals Unprotected.” Let the funeral combat begin according to the Supreme Court. Speech is such a sacred value that even respect for the dead shall not be allowed to trump it. Of course, who is kidding whom? The very wealthy could easily shield themselves from any unpleasantness, leaving the rest of us to run a gauntlet of picketers at one of life’s most trying and tender moments. In fact, a movement protesting at the funerals of the wealthy, especially bankers and stock brokers would be most apropos. My sign – “Thieves Go to Hell.” Now there’s a sentiment that meets the Court’s test for speech concerning “broad public issues.”

One last thing. Roberto Mangabeira Unger, one of the founders of Critical Legal Theory, suggests that courts can provide the necessary legal logic to justify any result. One can only wonder what the Supreme Court was thinking when it almost unanimously ratified picketing at funerals as something found within the “free exercise clause.” The conservatives on the Court probably identified with the rank homophobia of Westboro itself, and the liberals on the court salivate like Pavlov’s dog when they hear the word “speech.” One can only wonder what kind of horse trading or discussion went on in order to get to this result. This decision is either puerile or vicious, or a little of both. Two hundred thirty years of civilization and our courts cannot even protect a simple military funeral. After all is said and done, whose funeral is it?

Visual Aids for Politically-Challenged Americans

This is the coronation portrait of King George III which has had a face lift; that is, the face of that (in)famous king has been removed and replaced with the face of Hosni Mubarak, President of Egypt. I have done this specifically to assist Americans who are having difficulty following the events that are going on in Egypt. The Egyptian people have had to contend with the “tyrannies,” “usurpations” and “abuses” by Mubarak and his regime for thirty years and even longer if former regimes are brought into the equation. These terms are used in our Declaration of Independence to refer to the actions of George III in order to justify the extreme step that our revolutionaries took in taking up arms against that king. Looking back today, of course, George III appears a kindly gentleman in a wig who had some bad advice and even worse public relations. But whatever he was guilty of, the American revolutionaries turned those abuses into the basis for a rhetorical flourish that to this day has left us both wonderfully inspired and terribly confused. On the one hand, the Declaration of Independence establishes the equality of all persons (using the term “men” to mean persons, we think) and yet countenances the continuation of slavery on the other. Be that as it may, what has this to do with Egypt?

The Egyptian people today are fighting an even graver battle against a dictator and regime certainly as ruthless and brutal as the redcoats of almost 250 years ago. Americans supposedly have been committed to the principles of freedom and democracy by virtue of the way that the United States came into existence. Shouldn’t the Egyptian people, or any people for that matter, have our sympathy and support when they seek the same freedom? There are, however, unfortunate barriers preventing this simple logic from operating. Those barriers include a distance in religion, ethnicity and even race, coupled with a sorry apathy among Americans that extends even to their own political and economic situation. It is my firm belief that what is going on in Egypt is a watershed moment, not only in the history of the Middle East, but in the history of the post-modern world.

The scenes out of Egypt over the past two weeks have exploded a narrative that has held sway until now without successful challenge. It includes the idea that Arabs are incapable of understanding democracy or the institutions that support it and that their Muslim faith is antagonistic to those institutions. What we witness instead is a generation of tech savvy people coming from all walks of life, from all faiths and degrees of faith, from various political shades of opinion, from all socio-economic strata, of all ages, men and women, together in a form of solidarity that is impressive by any sociological standard. The energy that we witness on the streets of Cairo and other cities wants its chance to affect events in Egypt and the world beyond through a democratic process. You hear calls for social justice because Egypt is a country with social inequalities even greater than those in the United States, and those inequalities are something with which it is difficult to compete.

Another part of this exploded narrative concerns the proclivity of Arab populations to engage in violence and terror to secure change. Concomitantly, the Muslim world has been taunted after 9/11 for calls to demonstrate that it contains moderate masses, disconcerted by the violent events in the world. Well, here is an eloquent demonstration of non-violent Muslim, even Arab, masses laying down their lives in the name of freedom. The tables are now turned. Where are the Western masses raising their voices in concern and support? Where are the Western voices taking responsibility for supporting for thirty years a regime and security service that engaged in every form of brutality? Where are the Western voices acknowledging that the Egyptian regime was a handy client who provided a venue for torture and mischief that could not be conducted on the soil of supposedly more civilized environments? Those voices until now seem rather silent.

Egypt is a nation of great contrasts and difficulties and the road to democracy is not going to be an easy one. The Muslim Brotherhood has its eye on capturing events for its benefit. But why is the Muslim Brotherhood any more dangerous than the “Christian Brotherhood” which operates under a hundred different names in the United States, is as retrograde and which supports violence against its “enemies.” Right now, we witness events which should fill us with hope and inspiration. If good people on all sides of the various divides in the world make common cause on those things with which they agree, maybe the divisions will seem less important. There are too many critical problems that need a remedy. Inflaming sectarian passions certainly is not a solution. Fostering democracy and eliminating injustice seems more apt to move us in that positive direction.

POLITE SOCIETY

In today’s New York Times, there were two editorial columns concerning the connection between the shooting in Arizona last weekend seriously wounding Congresswoman Giffords (which involved the death of six people, including a federal judge) and the violently inflammatory rhetoric that the coddling of the political right has permitted. The column by Bob Herbert hit all the right notes. The column by David Brooks was shameful, but in a career of expressing shameful opinions this was no surprise.

The sorrowful Mr. Brooks is unhappy that the media, the monolithic left wing media, has the audacity to link the actions of a maniac in Arizona with the rantings of numerous political maniacs from his side of the political spectrum. After Sarah Palin, that strong frontierswoman in Gucci, was able to publish a map with the locations of left leaning Congresspersons placed in “cross-hairs” of a gun site and still be found on the crosshairs of the political radar, speaks volumes about the level of our moral sensitivity. It is incomprehensible to me that any candidate aspiring to national political office would not have been hounded off the political stage just a few short years ago for such a gesture and shows how far down the road to political oblivion we have gone. The tactic of the old right was to scare the public with minority violence. Remember the first Bush campaign and his smearing of Governor Dukakis with the likes of Willy Horton? They have graduated from deploring the violence to encouraging it. But the accusation Mr. Brooks is making is more profound than his acting the flack for an airhead cheerleader from a backward state with gun-sized fantasies.

He wants to decouple the act of Jared Loughner, the young man who brought a gun to a political meeting in Tucson and opened fire on an innocent crowd, almost assassinating a member of Congress, from all the political gun talk and violence talk that the right wing has been so free to cast about at least for the past ten years. Sorry, Mr. Brooks, your efforts are not only wasted, they are demeaning. Having taught a class in Holocaust studies and published in that area for twenty years, his column immediately made me think of another kind of decoupling that many, particularly on the right, also attempt. That is the decoupling of anti-semitism and the Holocaust. Two thousand years of vitriolic talk and accusation mounted by church and throne in Europe and somehow there is little or no connection between the murder of millions of Jews and all that rhetoric. While we are decoupling political rhetoric from violent acts, maybe 9/11 was actually the end product of a joyride that a few dozen crazy men decided to take in order to get their names in the history books. Forget all the hate and violent talk spewed into their heads by their local Sarah Palins. What an image – the lovely and demure Ms. Palin among bearded and wild-eyed imams. At least, they are the genuine article. She is a cardboard figurine propped up by a cadre of amoral flacks and now we can add David Brooks to that list.

The $2.3 Trillion Magical Misery Tour

This coming semester (Spring 2011) I am again going to teach Medical Sociology. This is both an exciting opportunity to orient students to a fascinating field and a sobering occasion indeed. During the next five months I will have to live and breathe the grim statistics and sobering tales of the American health care (non)system. I have written about this subject on a number of occasions before and do not want to repeat myself; however, repeating oneself is surely one of the greatest pleasures life can afford.

This time I want to get personal with a number of tales that would surely provide enough fright for any number of juveniles arrayed before the campfire during dead of night. It all started a number of weeks ago when my endocrinologist (yes, I have one - he monitors my levels) suggested that I call my regular physician and set up a schedule of appointments in such a way that either one or the other saw me every six months. That sounded like a plan and last week I called my regular physician at St. John’s Clinic here in Springfield to complete the arrangements. Seems like a fairly simple transaction, no? Well, no.

The phone rang a couple of times and the cyborg on the other end quickly asked if I could be put on hold. No sooner had my internal assent been translated by my vocal cords, before I was enjoying music composed by the same folks who are subcontracted to build penitentiaries. My sentence, however, was not commuted as the few minutes turned into an eternity of anguished anticipation. In such circumstances, I never hold for more than a minute or two. I redialed immediately and cyborg gave me the identical greeting, asked the same question, and I foolishly gave the same assent, but with the proviso that, “I will not stay on hold forever.” Forever was definitely the key word. In fact, forever in some religious dispensations promises salvation, albeit at some indefinite time, but in this case salvation never came. I hung up and redialed and this time said in a rather stern and demanding tone that I would give cyborg my name and number and when the gracious moment arrived, I would be sitting anxiously by the phone awaiting undeserved condescension. Cyborg, however, would hear of no such arrangement, and again came the dreaded request: hold! At this point, I was enraged beyond description, filled with such emotion that my health was certainly not a beneficiary of the circumstance. But the health care system does not function to preserve YOUR health. It is the health of the system that is the subject of its prime directive. I was about to call St. John’s administration when I gave cyborg one more chance. This time through gritted teeth I said, “If you don’t take my name and number, the next call I make will be to St. John’s administration.” Wonder of wonders. Cyborg said, “How can we help you?” I was nonplussed. A few seconds ago cyborg was so busy that there was no time to jot down my name. Now we are all ears. The appointment made, I hung up thinking that with such genius in charge of the system what could possibly give us a second thought about the quality of our health care.

Coincidentally, a few days later something happened to create that second thought. The billing office of St. John’s Clinic called and wanted to discuss an outstanding bill in the amount of $115.14. I immediately opened my checkbook and found that I had written a check for that amount at the beginning of November. Billing office cyborg stated that, yes, the payment was received but that other amounts due had claimed it. I asked what amounts those were. In fact, they were the amounts created by the lab tests and my routine check by my endocrinologist. Those had happened a number of weeks after the payment had been mailed so I asked how the payment could have been misapplied. Cyborg became silent and had an “Er. . .” moment when it then became clear that the later amounts had not even been billed to me yet. So, when I asked what amount was outstanding, it turned out that nothing was outstanding. All of this was from a call placed to my home after 7:30 P.M. from a hospital billing office which had informed me during the course of this Kafkaesque dialogue that St. John’s gives patients only 20 days to pay all accounts in full unless other arrangements are made. Ah yes, nothing can beat the charity of a Catholic hospital system.

In this country we spend $2.3 trillion (and more given that figure is from 2008) for a really first crass health system. A little anesthesia never hurt when you are picking someone’s pocket.

LESS GOVERNMENT?

Less Government!!!! This is an idiot’s mantra shouted from housetops and on the lips of many a hysteric. In fact, in a recent editorial in the local Springfield paper, a comment was made about a politician that for whatever other flaws he might have, at least he advocated less government. This betrays an appalling lack of understanding of history and/or politics. Embedded within this complaint are elements that are partly true but mostly false.

First, a bit of humor. Those who have seen the movie Amadeus which showcases the life of Mozart might remember a scene when a small minded minister convinces the Austrian emperor that Mozart’s music is wonderful but contains “too many notes.” The theory proposed was that there are only so many notes the human ear can assimilate. So the emperor orders Mozart to reduce the number of notes in his music. Mozart replies something to the effect that there are just as many notes as he requires and asks in frustration which notes should be sacrificed.

Similarly, with the argument about the size of government, less government as a political slogan is mindless. There should be just as much government as needed to conduct public business. You might then ask: what is its business? Well, for starters we all assume that the government will ensure a safe supply of drinking water, a police force, schools, firemen, libraries, roads, bridges and sidewalks, courts and legislatures, elaborate systems of record keeping, enforcement of regulations to ensure the safety of food, consumer products, and the conditions in restaurants, etc. In a modern, fast-paced and complex society, the list is quite long. The services provided and the rights safeguarded are many. So which of these are you willing to forego? None you say. That isn’t the issue you say. We want all these things and more but we want them delivered more efficiently with less waste of our precious tax dollars. Now that is certainly an intelligent complaint. Why not “Honest Government” or “Efficient Government” as a demand? Most of us could get behind that.

Calls for “less government” are as sensible as children calling for “less parenting” or felons calling for “less justice.” Remember, the author of that 18th century riddle “Government governs best that governs least” was Thomas Paine, probably the most radical of American revolutionaries. Paine denounced religion as a human invention and supported the French revolution. How about “less cherrypicking” the quotes of 18th century radicals.

It is not too hard to find the motive behind these calls for less government.  Cui Bono - to whom the good? - is still the best question to ask when wanting to get to the bottom of something.  Those who do not wish to be regulated, those not wishing to pay their fair share, those who think that in the delirium caused by starving government of power their fondest wishes will come to pass.  They are playing a fool's game.  All that will be achieved will be the creation of a momentary vacuum which will be filled by an increased power and sovereign entity even more difficult to control.  But it is obvious that were we to judge the efficiency of government by the general level of public education and sophistication, those presently in charge of providing that basic service have much to answer for. 

Nuts on a Velvet Cushion

OK. There is something creative and kinky about wearing hardware as a fashion statement. The Today Show this morning (September 9, 2010) had a short segment about women creating jewelry from some of your favorite items in the hardware aisle. My favorite accessory in the “DIY Haute Couture” line was a belt made of out of a pulley and rope. Of course, there is nothing intrinsically wrong with giving Home Depot a seat at the fashion runway, but is simple youthful exuberance all that is going on here?

The American Middle Class, bless its plaque filled heart, is being further softened up for what MadTV brilliantly satirized as “Lowered Expectations.” Over the past 20 years, the productivity of the American worker has increased but real wages have declined. Now that the biggest bubble of those last 20 years has burst (in real estate), the economy has hit the skids, at least for those in the bottom 80%. Those at the top have never had it so good. The levees of our economy have collapsed and, except for those who live in the most exclusive neighborhoods, we are all trying to keep our heads above water.

Thus, our friends at NBC are there making life a little more pleasant by demonstrating that as every penny of savings and equity are eaten up, women do not have to go about unadorned. They can galvanize their admirers with items that are themselves galvanized. The hardware store is replete with all kinds of rings, chains, spokes and spools in many sizes and shapes. Minnie Pearl step aside. Your dowdy image is in for some stiff and steely competition.

Doesn’t anyone else find this depressing? I thought diamonds were a girl’s best friend. Turns out that all along those blokes who worked themselves into a lather mortgaging their sweat for that matrimonial rock, could have saved a great deal of trouble. All they needed to do for their true love was trot down to True Value and buy their baubles by the pound.

However, the big surprise comes much later. Get ready all you little tykes. When your grandma loses her last little bit of private health insurance and slips off to those faux pearly gates, your inheritance is going to be one large screw.

The 14th Amendment – Racial and Political from the Start

14th Amendment to the U.S. Constitution. Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Ah, you gotta love the Republicans. The 14th Amendment was passed by the required 2/3 vote by an overwhelmingly Republican Congress in 1866. The Civil War having concluded with the defeat of the South, that defeat put the slavery question to rest and should have also put to rest the relative constitutional position of the states vis-à-vis the federal government. Alas, some bad ideas never die even when they are buried under the bodies of 600,000 slain soldiers.

So, the present Republican leadership in our Congress, playing on racial and ethnic prejudices, wants to reverse the impact of the citizenship clause of the 14th Amendment as that has been understood for 150 years, this, ostensibly, as a remedy for “furriners” coming to this country and having children who immediately qualify as American citizens. Illegal immigration is certainly a problem with which the federal government needs to deal; however, for the past 30 years administrations both Democrat and Republican have feared the electoral repercussions of offending one or another voting bloc and left the situation to deteriorate. Reagan did attempt some reform and in the process gave amnesty to 6 million people who had entered the country illegally at that time. Amnesty is no longer a viable option because Republicans have recognized that their racist postures over these 30 years have so alienated many groups that the future does not bode well for their electoral prospects as the racial and ethnic composition of the U.S. will shift over the next 40 years.

Of course, when the amendment first passed the freed slaves were grateful to Lincoln and his party and that gratitude was expressed in voting patterns well into the 20th century, until the Great Depression and the emergence of the New Deal. Those polarities have reversed. African-Americans have been abandoned by the party of Lincoln, which has bleached itself of every progressive element that it may have ever contained to become the spokesparty for plutocrats, the avaricious and the retrograde. The 14th Amendment was passed to guarantee the civil rights of slaves who had been freed and were subject to imposition of disabilities that would have reduced them once again to a kind of functional slavery. It should not be forgotten that generations of slaves born in the United States were not considered citizens, their lives and labor forfeit to generations of people who believed owning other people was perfectly consistent with the idea that “all men are created equal endowed by their Creator with certain inalienable rights.”

Why is this attempt to undo the spirit of the American ethos such vile hypocrisy? For two basic reasons. First, the vast majority of Americans living today are citizens by virtue of the fact that their immigrant forebears, both legal and illegal, gave birth to children on this soil automatically making those children and their progeny American citizens. That was their dream and apparently the dream is still alive. The argument that terrorists are exploiting one of this country’s virtues is laughable. 10,000 people are killed by guns in this country every year. All Osama needs to do is make large contributions to the NRA, sit back, and watch the fireworks. Second, this attempt on the part of Republicans to rewrite the Constitution for their electoral convenience smells to high heaven because it is consistent with their attempt to disenfranchise certain groups in general. So many African-American men are in prison (11% of all African-American men between the ages of 30-34) that disqualifying felons from voting can be the difference between victory and defeat in many political races in this country. It is not that felons ought to vote. Elections can just as easily be stolen by trolling voter registration lists for felons and then disqualifying many eligible voters in the process. (That exactly this tactic was used in the Presidential elections of 2000 and 2004 is easily documented.) What Republicans are doing in this recent maneuver is an attempt to disqualify voters at a more strategic juncture – the very point of citizenship itself.

See Also: http://www.truth-out.org/connie-schultz-blame-babies62011