I’m not sure I completely understand the legal adage, “bad facts make bad law,” but the Supreme Court may be about to give us all an object lesson in its meaning. If I do understand it, is that sometimes there are situations — “bad facts” — that are so unusual or so horrifying or both — that they force jurists to make legal decisions in line with what any normal person would consider to be just but with unintended side effects that make “bad law,” that is, bad legal precedent. An example is a Texas case where a drunk driver hit a car carrying a pregnant woman whose fetus was seriously damaged, was delivered alive by C-section but then died. He was charged with manslaughter in the death of the fetus, but the law required there be the death of “another,” and “another” was defined by law to be “a person” and a person was defined to be “an individual,” and an “individual” was defined by law as “a human being who has been born and is alive”. Since the initial injury was not to something that had not yet been born, this became the basis for the defense’s contention the driver could not be charged with intoxication manslaughter. This was not an abortion case but the circumstances instantly made what was a just decision — that the drunk driver should be punished for the loss of this pregnancy and the damage it did to the family — into one with vast consequences, once the verdict was upheld and became “settled law.”
Now the Supreme Court has agreed to take a case that most certainly has “bad facts,” a clash between the subhuman adherents of the Westboro [Kansas] Baptist Church and the family of a soldier killed in Iraq. If you don’t know anything about Fred Phelps’s Westboro Baptist Church, count yourself lucky. These anti-gay psychopaths travel around the country, picketing the funerals of dead soldiers with signs that blame the deaths of soldiers on what they perceive as a government sanctioned tolerance for homosexuality, causing God to visit all sorts of punishments on the country. Another example of their message of God’s Love is their slogan: ?Thank God for 9/11.″ We’ve dealt with Phelps here before. For most of us, the mental illness of these folks is more of a morbid curiosity item than anything else. Until now. Because these bad facts could well make bad law for all of us:
The case the justices decided to review Monday tests the boundaries of free speech versus freedom of religion ? doctrines both embodied in the First Amendment.
Without comment, the justices agreed to review last year?s federal appellate decision that overturned a $5 million verdict (.pdf) in favor of a Baltimore man who sued the Westboro Baptist Church of Topeka and its pastor, Fred Phelps, in 2006. The father of Marine Lance Cpl. Matthew Snyder was awarded damages for, among other things, invasion of privacy and emotional distress for the events that occurred outside his son?s funeral at a Catholic church in Maryland. (David Kravets, Wired’s Threat Level blog)
The bad facts here have set up a collision between freedom of religion and assembly and freedom of speech and one of them is going to lose. Since I am a fervent free speech advocate, here is how Phelps’s lawyers put the facts into as bad a form as I can imagine:
?How these soldiers are living and dying is a topic of substantial public interest and dialogue, at least nationwide, probably worldwide. The prevailing view is that the soldiers are heroes, and that God is obligated to bless America,? (.pdf) Phelps? lawyers wrote. ?Those views clash with the Bible, in respondents? sincerely held religious opinion, and when these funerals are used to express those viewpoints, respondents feel duty-bound to provide a countervailing message, to wit, if you want God?s blessings, you have to obey him, and if you want the soldiers to stop dying, you have to stop sinning in this nation.?
These sincerely held “facts” about what God wants are about as vile and intentionally hurtful as I can imagine. I don’t think they should be allowed to be used as verbal weapons to grievously hurt others. The fact that the others are the families of soldiers is not relevant. It would be no different if they were the loved ones of AIDS victims or the families of some less respected group than soldiers (even the families of members of the Westboro Baptist Church itself). There is justice in holding these lowlifes accountable for the injury they have done.
But we all have to worry about what unintended legal side effects of these “bad facts” will produce, on freedom of assembly on the one hand and freedom of speech on the other. Sigh.