By David Tulis

The Muslim attack that killed five military men in Chattanooga has brought paroxysms of grief, an emotional public outpouring of sympathy and an unconstitutional edict from Mayor Andy Berke.

Mayor Berke intends to keep away from the funeral procession demonstrators such as members of the Fred Phelps family of Westboro Baptist church in Topeka, Kan. But he has no constitutional way of doing so. He relies on a federal statute and a state law upon which to erect “mayoral directive 2015-01.” But like his bit of daring, these props are unconstitutional as they offend the First Amendment free speech rights of Americans in general and Chattanoogans in particular.

[First published at, your vital local news site.]

Their flaw is that they are reprehensibly and illicitly vague. Mayor Berke’s rule, like the others, is unenforceable against a free people.

If this reader flies a confederate battle flag from his pickup truck, and drives by the federal cemetery during the funeral procession, is he violating Mayor Berke’s rule or federal law? If he unfurls an upside-down federal flag off Lee Highway’s Marine recruiting center, is a police officer going to arrest him amid the day’s emotional overload? The reader hangs from his shoulders a sandwich board: “U.S. out of Middle East” is on the front, “Damn Yankees go home” on the back.

When he shows up at Hixson United Methodist church’s parking lot, is his an act that “shall be deemed offensive to the sensibilities of an ordinary person in the state,” to quote from Mr. Berke?

Void for vagueness.

The rule is unenforceable because it requires the state’s agents (the police) to make snap judgments about the content of free speech, and deem some speech acts “offensive” and others not. A protester with the placard “Go Marines, kill turbanheads” gets a pass, but one who says “Allah Akbar, God’s will is just” gets arrested. What if a hapless party outside the cemetery bears on a jacket a Saudi Arabian flag, that country being a federal ally? Is that anti-Marine? Does the mayor have to “protect” and “defend mourners” from such?

Who is to say what is offensive? Freedom of expression cannot be confined, categorized, rationalized and doled out. No censor is available for such a task, none desirable. Free speech is always offensive because in it an individual is offering a claim or idea diverse from your own. In a solemn procession, someone who yells, “Get your car repair today at Goodyear” is making an offensive act because his comment is profoundly irrelevant, a bit of misdirected commercial speech that slaps the sensibilities of nearby people.

The city’s chief executive is taking part in an uproar of what the sociologists at UTC might call civil religion. Professor Jack Waskey of Dalton State says much hoopla this week is theologically contentless “folk Christianity.” These religious ideas holds that American soldiers die to defend the liberties and freedoms of the people, that every soldier killed is “a fallen hero,” that he paid the “ultimate sacrifice” and that every citizen owes thanks to him and his family in the death that awaited him July 16 at the hand of Mohammad Abdulazeez. Civil religion rallies around a political/religious corporation, the United States.

Disappearing in such waves of nationalist sentiment — analyzed in 1918 by Randolph Bourne who argued that “war is the health of the state” — are alternative messages, contradictory concepts, restraining questions.

It is in this supposed illegal picketing that the public mind is refreshed. Demonstrators enliven the public soul with an alternative narrative. In the presence of contradictory theories the mass mind makes surer its step, and if its emotion is earnest, it will brush aside as inanities the claims about God’s judgement by Westboro Baptist church. It will view with delight the vigorous flapping of a Confederate flag back of a Ford pickup pulling into that parking lot off Lee Highway.

It is unlawful and condescending for Mayor Berke to “direct all City of Chattanooga law enforcement personnel to treat the Lee Highway and Amnicola Sites as protected memorial services which will shield [mourners] from any protests.” It is a suppression of free speech for the federal/state/city combine to hurl to the ground skeptics and people with a religious message.

For this bit of state warfare against constitutional government and liberty, we can be sure, our five service members did not yield their lives.

— David Tulis covers local economy and free markets at, a talk show weekdays 9 to 11 a.m. at AM 1240 Hot News Talk Radio.

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