On: Freedom of Speech and The Maroon Wall

by: Joshua Howell

“Statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment.” -- United States v. Alvarez

You likely missed it -- or were simply unconcerned -- given the political theater of June 28^th, the day The Supreme Court upheld the Affordable Healthcare Act as constitutional. But ten or so minutes before that announcement was another. With a six to three vote, The Supreme Court struck down The Stolen Valor Act, which criminalized making false claims about having received military honors. Such prohibition, the court ruled, conflicts with the First Amendment’s proscription of laws which abridge the freedom of speech.  The right to lie about military accreditation now joins the rights of burning the American flag and protesting military funerals. Indeed, sometimes exhibition of speech is “inconvenient.” Who knew?

One might forgive the service member who therefore holds SCOTUS in contempt. But take it easy on those nine justices; they were only doing their job.

Whereas military recruits take oaths to “support and defend the Constitution”, it is the duty of The Supreme Court to determine what it is those military men and women are defending. It is their responsibility to interpret the Constitution’s complexities and ambiguities, and ultimately make decisions to which more than 300 million Americans will be bound.

When it comes to freedom of speech, however, there is scant room for nuance: The words “Congress shall make no law… abridging the freedom of speech” leaves little to the imagination. True, there are several exceptions: Fraud, true threats, child pornography, speech integral to criminal conduct and other, similar forms of speech are not protected because (to lift a quote from United States v. Alvarez) they cause “legally cognizable harm”.

But as we all know, and are sometimes loathe to admit, damaged feelings and offense, no matter how legitimate, do not constitute “legally cognizable harm”.

Still, better a government which protects freedom of speech to absurd degrees than one that lets federal and state governments pick at it with law after law. The latter would be calamitous, and would result in the erosion of our near unlimited rights to expression.

Better still, unlike the Second Amendment, which protects Americans’ right of gun ownership, any problem created by constitutionally protected speech is handled (even best handled) not by restricting speech, but by a deluge of it.

Witness what happened yesterday in College Station, Texas, when the infamous Westboro Baptist Church -- known as much for their gall as their non sequiturs -- threatened to protest the funeral of Lt. Col. Roy Tisdale, a veteran both of Afghanistan and Iraq, as well as a recipient of the Purple Heart.

Upon hearing of Westboro’s intent, members of the community elected to create what has become known as “The Maroon Wall,” a 600-person barrier between where Westboro would be protesting and Central Baptist Church, the site of Tisdale’s funeral. Per The Wall’s mission: “In response to their yelling, we will be silent.”

Most wore maroon, one of Texas A&M University’s school colors. It is Roy Tisdale’s alma mater.

A glimpse of The Maroon Wall
photo courtesy of Leslie Mott

With cumulous clouds providing partial cover from what is the onslaught of the Texas sun, the group lined themselves in a field which surrounded the work of beauty that is Central Baptist. Residents of nearby Bryan, Texas came. The Patriot Guard Riders, a group of motorcyclists opposed to Westboro, rode in from Austin to participate in the event.

To quote Westboro’s flyer: “Lt. Col. Tisdale gave his life for the Constitutional right of WBC to warn America. To deny us our First Amendment rights is to declare to the world that Lt. Col. Tisdale died in vain, and that America is a nation of sodomite hypocrites.”

Despite the digression about sodomite hypocrites, the relevant portion of the quote is correct. But Tisdale also gave his life for the rights of The Wall as well, which stood in solidarity with the family that day.

And while reports say Westboro didn’t show (here’s hoping they were inconvenienced), the sheer effort taken to create The Maroon Wall remains. Even if Westboro wasn’t run off by the sight of that great formation, it proved the inherent force of speech: even absent words, spoken or in print, it remains quite powerful.

Sometimes a wall of maroon suffices. That, reader, is a freedom worth protecting.