Veterans Day, and Free Speech

Today is Veterans Day, which currently is made a federal holiday by 5 U.S.C. §6103(a) and a state holiday by N.J.S.A. 36:1-1.  The holiday began as Armistice Day, since it was first proclaimed by President Wilson in 1919, to commemorate the end of hostilities in World War I.  In 1954, Congress changed the name to Veterans Day, in order to honor veterans of all of the nation’s wars.

A LEXIS search reveals only one Supreme Court of New Jersey decision that mentions Veterans Day.  That is New Jersey Coalition Against the War in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326 (1994).  There, a citizens group sued the owners of shopping malls seeking access to distribute leaflets opposing what we now know as the First Gulf War at those shopping centers.  They sought to do that over a weekend that included Veterans Day.  Id. at 338.  The Chancery Division and the Appellate Division each ruled that the mall owners could prevent such leafletting.  The Supreme Court, however, reversed those rulings by a 4-3 vote.  Chief Justice Wilentz wrote the majority opinion, joined by Justices Handler, O’Hern, and Stein.  Justice Garibaldi filed a dissenting opinion in which Justice Clifford and Judge Michaels joined.  Applying the test of State v. Schmid,  84 N.J. 534 (1980), which had held that individuals had the right to distribute leaflets on the campus of Princeton University without the school’s permission, the majority ruled that the right to freedom of speech applied to “regional shopping centers” since they “are the essential places for the preservation of the free speech that nourishes society and was found in downtown business districts when they flourished.”  138 N.J. at 372. 

Those who fight for our country do so, among other things, to protect the rights that the United States holds dear.  One of those values is freedom of speech.  It is somehow fitting that war protestors who sought to distribute their leaflets on the weekend that included Veterans Day were ultimately vindicated in their efforts to exercise their rights that our military seeks to preserve.

But how far should that notion go?  In Snyder v. Phelps, 562 U.S. __, 131 S.Ct. 1207 (2011), the Supreme Court of the United States ruled 8-1, with only Justice Alito dissenting, that the First Amendment right to freedom of speech protected members of the Westboro (Kansas) Baptist Church from tort suits after church members picketed military funerals with signs expressing their belief that God hates the United States and its military for tolerating homosexuality.  The conduct of the church members was offensive to the military families whose loved ones were being buried, and to many other citizens as well.  Nonetheless, the Supreme Court, speaking through Chief Justice Roberts, upheld the right of the church members to express their views.  “Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible.  But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials.”  The course that our law has chosen is “to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”  Or, in the famous words of Justice Holmes, dissenting in United States v. Schwimmer, 279 U.S.  644, 654-55 (1929), “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought– not free thought for those who agree with us but freedom for the thought that we hate.”

Happy Veterans Day!