The Westboro Baptist Church, founded and operated by Fred Phelps, became notorious by picketing the funerals of gay and allegedly gay people. Fred Phelps was disbarred from practicing law in Kansas in 1979 then in 1989 he was disbarred from practicing in Federal Courts. There is no official affiliation between the Westboro Baptist Church and any known Baptist organization, and all recognized Baptist associations vehemently deny any affiliation with this church.

Their demonstrating at the funeral of Mathew Shepard put them in the national spotlight. Shepard was a student at the University of Wyoming and was severely beaten and murdered because he was gay. The signs that the Westboro Baptist Church used during the demonstration at his funeral read, “No Fags in Heaven” and God Hates Fags.”

They have since moved on to disgrace the funerals of slain soldiers killed in the Iraq and Afghanistan wars. Which has lead to their current legal predicament.

Lance Corporal, Matthew Snyder was killed in action in Iraq. At his funeral, in 2006, the Westboro Baptist Church came to demonstrate. They held up signs reading “God is your enemy” and “God hates fag enablers.” They sang the song “God Bless America” but substituted the words “God Hates America” in place of “God Bless America.” They carried out their protest while the funeral was in process. Their argument for protesting at military funerals is that the U.S. is being punished by God for being tolerant of homosexuals.

Lance Corporal, Matthew Snyder’s father, Albert Snyder, sued the Westboro Baptist Church and last week was awarded $2.9 million in compensatory damages, $2 million for causing emotional distress and $6 million in punitive damages. Named in the suit was Phelps and his two daughters, both are attorneys.

Jonathan Katz, attorney for the church, stated that “….the burial was a public event and that even abhorrent points of view are protected by the First Amendment.”

Should this demonstration have been protected under the first amendment? What does protected speech mean? Does the Constitution protect speech without consequences? Was it speech as defined common sense or was it just malicious conduct and expression?

To better understand this case and the questions posed above, a clearer understanding of the history and formation of the “free speech” clause and the “freedom of the press” clause of the U.S. Constitution and the influences and state of mind of the framers of the Constitution is paramount–especially James Madison who crafted the First Amendment with strict adherence to William Blackstone’s philosophy concerning the freedom of speech and the press.

The founders of this country’s ideology and the context of the constitution was based on English Common Law which is derived from Natural Law. John Locke ( 1632-1704) had significant influence on English common law and the formation of U.S. law. His influence is seen in the American Revolution and the Declaration of Independence. Locke wrote, “The state of Nature has a law of Nature to govern it, which obliges every one, and reason, which is that law, teaches all mankind who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions. The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of Nature for his rule.”

The philosophy of the Natural Law is as follows: It is dictated by God. It is a law that transcends all countries. Man made laws that run contrary to Natural Law are not valid. All man made laws should be derived from this original law.

William Blackstone (1723-1780), wrote Commentaries on the Laws of England (1769). This book was the evolvement of Natural Law’s influence on English Law and consequently English Law on American Law. This book was the foundation for the legal education in England and America. It was the chief source of law for the early colonies of the United States. William Blackstone, just as Locke, was heavily influenced by Natural Law and had this to say about the subject, “Good and wise men, in all ages…have supposed, that the deity, from the relations, we stand in, to himself and to each other, has constituted an eternal and immutable law, which is, indispensably, obligatory upon all mankind, prior to any human institution whatever.”

From his book , Commentaries on the Laws of the Laws of England, Blackstone addressed the subject of free speech.

“The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.”

England had laws of prior restraint in the form of licensing laws pertaining to speech and the press during the time of the framing of the U.S. Constitution. The framers clearly intended to eliminate any form of prior restraint by law. The definition of Prior restraint primarily involves prior permission from a censor to publish or through licensing laws that were in place in England. Blackstone advocated against prior restraint. But as can be noted from his quote concerning free speech and press, even if you are not required to get pre-approval before publication, you are still subjected to the consequences of what you say and print.

The framers intentions were to eliminate prior restraint from speech and the press by way of the first amendment. But as Blackstone heralded, there was no immunity from the consequences of your speech or press after it was published or spoken. Their intentions concerning free speech and the press were significantly narrower in scope than what modern jurisprudence has crafted. Contemporary judicial doctrine lacks the basic foundation in the original understanding of the First Amendment.

Did Locke and Blackstone really have that strong of an influence on the founders of this country and their crafting of the constitution and its amendments? Consider the following quotes by Alexander Hamilton, one of the authors of The Federalist Papers and an author of the Constitution:

“Upon this law, depend the natural rights of mankind, the supreme being gave existence to man, together with the means of preserving and beautifying that existence. He endowed him with rational faculties, by the help of which, to discern and pursue such things, as were consistent with his duty and interest, and invested him with an inviolable right to personal liberty and personal safety.

“Hence, in a state of nature, no man has any moral power to deprive another of his life, limbs, property, or liberty; nor the least authority to command, or exact obedience from him….

“Hence also, the origin of all civil government, justly established, must be a voluntary compact, between the rulers and the ruled; and must be liable to such limitations, as are necessary for the security of the absolute rights of the latter; for what original title can any man or set of men have, to govern others, except their own consent? To usurp dominion over a people, in their own despite, or to grasp at more extensive power than they are willing to entrust, is to violate that law of nature, which gives every man the right to his personal liberty; and can, therefore, confer no obligation to obedience.”

There were very few tests of the freedom of speech and freedom of the press clauses of the First Amendment prior to the early 1900’s. The first test came in 1798 in the form of the Sedition Act, but was never tested in the courts. It was coupled with the four Alien Acts. The Sedition Act declared that any treasonable activity, including the publication of “any false, scandalous and malicious writing,” was a high misdemeanor, punishable by fine and imprisonment. People were tried and convicted under this act and newspapers were shut down.

The Sedition Act was passed into law just a few years after the ratification of the Constitution and by some of the same authors who crafted Constitution. Though the act was called unconstitutional by some, it was never challenged in the courts and ran its course and expired in 1801. What were some of the contemporary thoughts concerning the Sedition Act? John Marshal, a Federalist Congressman, later to become Supreme Court Chief Justice, had his doubts about the sedition act, but he argued, as did Blackstone, that the guarantee of a free press and speech meant only the right to publish, free from prior constraints and that criminal punishment after publication was constitutional.

The “freedom of speech” and the “freedom of the press” clauses of the First Amendment were not significantly challenged again until the enactment of the Espionage Act of 1917.

The Espionage Act of 1917 was passed shortly after the U.S. entered WW I. The act prohibited the disclosure of government and industrial information in regards to national defense, promote the success of the enemy, interfering with the recruitment of troops and the refusal to perform military service if drafted.

In 1918 Congress amended the Espionage Act with the passage of the Sedition Act. This act was a prohibition on the expression of anti-war and unpatriotic sentiments. It imposed several penalties on those convicted of “disloyal, profane, scurrilous, or abusive language” about the United States government, flag, or armed forces during war.

If convicted with either of these acts, one would be subjected to a $10,000 fine or 20 years imprisonment or both.

Shortly after the passage of the Espionage Act and the Sedition Act, two high profile convictions under the act made their way to the Supreme Court in the cases of Schenck v. United States and Eugene Debs v. United States. The Schenck and Debs cases involved freedom of the press and freedom of speech as one case involved printed fliers and the other involved a speech. It would be intellectually dishonest to state that laws involving speech and the press are exclusive to one another.

Charles Schenck was the local secretary of the Socialist Party of America in his area. Schenck was involved in antiwar activities in violation of the Espionage Act. He mailed 15,000 leaflets to recently drafted men encouraging them to resist the draft. He was arrested and charged with “causing and attempting to cause insubordination in the military and naval forces of the United States” and with disturbing the draft. He was arrested for these infractions. He was convicted and was sentenced to prison for violating the Espionage Act. He appealed his case to the Supreme Court.

Charles Schenck’s conviction was upheld at the Supreme Court. Oliver Wendel Holmes, Jr. authored the majority opinion, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”

From the Schenck case the “clear and present danger”test became the standard for deciding when freedom of speech and freedom of the press are not protected by the First Amendment due to its content and intent. After the “clear and present danger” test was applied in the Schenck ruling it was summarily applied in the case of Debs v. United States.

Eugene V. Debs (1855 - 1926) ran for President of the United States five times as a Socialist Party of America candidate. Debs made an anti-war speech titled “Socialism is the Answer” in June of 1918 in Canton, Ohio to an audience of 1,200. The content of his speech was anti-war rhetoric against the U.S. for being involved in World War I. Debs was arrested and charged under the Sedition Act of 1918. He was convicted and sentenced to ten years in prison.

The issue was whether the United States violated Deb’s freedom of speech guaranteed under the First Amendment. The Supreme Court upheld the lower court’s conviction under the Espionage Act. Since Debs’ speech was to persuade people not to enlist in the military, it was ruled that it did violate the rules of the Espionage Act. Since Deb’s speech used language to discourage military recruitment, the Court ruled he was not entitled to any protection under the First Amendment’s freedom of speech clause. His speech was ruled to have been a “clear and present danger” to the United States.

A comparatively recent derivative of the “freedom of speech” clause of the first amendment is the term “freedom of expression.” The First Amendment does not address the “freedom of expression”, but it has become synonymous with the “freedom of speech” clause through court rulings to the point of absurdity. Modern jurisprudence has reached the point where almost any conduct or expression is protected under the First Amendment regardless of how seditious or perverse it may be. Speech is speech and the press is the press and idiotic, perverse, dangerous and seditious conduct or any other means of expressing oneself outside the parameters of speech or press to be allowed to have blanket protection under the First Amendment is not what the framers of the Constitution had in mind. If you take the above absolutist approach that Congress shall make no laws….the court has to determine whether or not there is protected speech within certain absurd conduct or is it only conduct and therefore not protected under the First Amendment and subjected to regulation. This is an extremely subjective process and prone to being hijacked by a political and capricious ideological judiciary.

The Constitution is not the esoteric document that the elite intelligentsia would have you believe. It is a remarkably simple and discernible document. If you are not sure, you can read what the author of any clause of the Constitution or its amendments said during the debates concerning in Constitution or its Amendments or read their writings outside the Congress concerning their thoughts on the subject. The only complex aspect of the Constitution are the innumerably bad case laws and the radically liberal law schools that teach from natural selection of case law that best suits their leftest ideology.

Consider, hypothetically, that the Westboro Baptist Church, the A.C.L.U. or Yale Law School or any other radically liberal law school, were arguing before the Supreme Court as defendants and council for pulling the same perverted shenanigans they pulled at the funeral of Lance Corporal Matthew Snyder on a soldier of the war of 1812 or the Civil War. The attorneys for the Westboro Baptist Church would be legally paralyzed because they would not have access to any constitutionally offensive case law to use as the foundation of their case and there would not be any activist judges who would be better suited to arbitrate squabbles at a hippie compound circa 1965. The result would likely be two fold. The case would be lost, but the church, its members and council would be jailed rather than just fined. If not jailed it would be highly unlikely that one of them would make it past the lynch mob waiting outside the court house. The church would have been burned to the ground. Those were the days when intolerance was not considered a bad thing.

You can be assured that if the New York Times or any other modern day anti-American rag had reported on the case with their usual aplomb and vitriol language against the U.S., the editors would have been jailed and the publication closed down.

Even though the wording of the First Amendment ….Congress shall make no law…there has never been a time in our history when there was “no law”. The 1798 Sedition Act came about before the ink had dried on the Constitution.

It is clear what the framers intentions were and their influences when drafting the Constitution and the Bill of Rights. It can sometimes become muddled when relying on activist judges who would rather rule on how they wished the Constitution and its Amendments were written rather than how it was written. The Sedition Acts were probably too narrowly ruled on, as Oliver Wendell Holmes moved away from such a narrow scope of the “freedom of speech” and freedom of the press” rulings after the Shenck and Deb’s cases. Yet modern jurisprudence has moved much too far to the opposing extreme from the rulings in the early 1900’s and is continually moving, dangerously, in the opposing direction. There has yet to be a worthy balance between the early 1900’s era and current rulings on these two clauses.

When someone bemoans the fact that their rights protected by the Constitution and its Amendments are being violated or that the Supreme Court is too conservative and will encroach on everyone’s rights, they are more than likely enjoying a much broader and liberal interpretation of their rights than the framer’s intended or that they would have experienced less than a century ago.