Bad facts make bad law.

There are an awful lot of obtuse legal expressions, like "go hence without day." But the old adage, "bad facts make bad law," is fairly self-evident.
So let's look at some bad facts: the rabidly anti-gay protesters at Elizabeth Edwards's funeral.
They were the Westboro whackos, the ones who picket certain military funerals -- those honoring our troops who are alleged to be gay.
At it again at Mrs. Edwards's funeral, three adults and two children waved inane epithets while Christmas carolers circled the service and kept the protesters at bay.
The group picked out the deceased Mrs. Edwards because of her inter vivos statement that she was "completely comfortable" with gay marriage. This intolerable, intolerant group is not.
But perhaps we would feel differently, were they instead condemning John Edwards's infidelity, waving placards like, "You're in a better place, Elizabeth. John will rot in hell!"
It would still be offensive. But should speech be curtailed because it's in poor taste? Or just plain stupid?
Related is whether the government can forbid these Westboro folks from protesting at military funerals. Because it raises First Amendment issues of free speech, as well as a father's right to peaceably assemble at his son's funeral, the case will be heard by United States Supreme Court. It will be a fascinating decision.
We know we can't scream "Fire!" falsely in a crowded theater because it would likely cause injury to others. It is illegal to incite a crowd to commit "imminent acts of lawlessness." But beyond that, it is hard to draw a bright line.
It is hard because we find ourselves looking at how these intrusive protesters devastate the grieving parents and other mourners. And we can't help but notice how futile is their speech since the object of their hatred is already dead.
In other words, it's impossibly difficult to exclude the merits of the message from the analysis. And regulating the content of what would otherwise be legal speech -- that it's occurring at a funeral is the main source of outrage -- is problematic, to say the least.
What if the Westboro people were protesting misogyny? Or the war? Or the draft, supposing there were one? What if they were protesting outside the house of the dead serviceman instead of the funeral service?
And what of counter-protesters, the well-intentioned people who show up to support the grieving and tell these Westboro congregants where to put it? Can they be banished?
It's a sticky wicket, this slippery slope. Before we regulate content, we must be excruciatingly circumspect.
Liberals might presently cheer the notion that Fox News be subject to an FCC "public value" test. But one day it may be MSNBC's speech that is regulated under the same rationale.
Whether speech is "good" or "bad" is in the eye of the beholder. I prefer to let free market principles work their magic on unpopular people and unpopular ideas: let the people decide.
If "God damn America" isn't a message you'd like to hear in church, worship somewhere else. The calm carolers at Mrs. Edwards's funeral did an excellent job quelling the protesters.
As Charlotte Bronte wrote in Jane Eyre, "An eager listener quickens tongue of the narrator."
Alas, so does an eager press.

Labels: Anti-Gay, Elizabeth Edwards, Fcc, First Amendment, Free Assembly, Free Speech, Funeral, Protesters, Public Value Test, US Supreme Court, Westboro Baptist Church