October 6, 2010

"It appears that at least a few of the justices really, really, really just hate the Phelps family and its manner of protest..."

"... and they might even be willing to whip up a little new First Amendment law to prove it."
Margie J. Phelps represents Westboro Baptist Church, and yes, before you ask, she hates you, she really hates you. She most likely hates the six Catholics and three Jews up there on the bench, too. But she hides it well....

Scalia wonders whether these signs and Web posts could be unprotected words under the fighting words exception to the First Amendment, but Phelps says this protest was never intended to provoke a fight. Channeling Stephen Colbert, she says their message is just this: "Nation. Hear this little church. If you want them to stop dying, stop sinning."...

The headline writers are going to say that the justices "struggled" with this case. That may be so, but what they struggled with has very little to do with the law, which rather clearly protects even the most offensive speech about public matters such as war and morality. They are struggling here with the facts, which they hate. Which we all hate. But looking at the parties through hate-colored glasses has never been the best way to think about the First Amendment. In fact, as I understand it, that's why we needed a First Amendment in the first place.
I absolutely agree with Dahlia Lithwick about this.

90 comments:

David said...

This should be 9-0 for the Phelps family.

Once that is over, they can go on TV with Eliot Spitzer.

save_the_rustbelt said...

The problem is not so much the speech as the timing and location.

If someone has a free speech right to disrupt a funeral why not a wedding? Graduation? Just stay behind the curb line and yell whatever you want.

Is a funeral a public event because the hearse and mourners use the streets?

At that point, what events would be protected and what events would not?

(In our part of the country and throughout much of the country, the Patriot Riders put themselves and their motorcycles between the whack jobs and the funeral. Many of the riders are vets, some not.)

TMink said...

I always thought that Christians should show up to stage a counter protest in which they all kneel, bow their heads, and pray. Right beside the Phelps bunch.

Contrast is a powerful tool for communication.

Trey

Revenant said...

If someone has a free speech right to disrupt a funeral why not a wedding?

The case isn't about "disrupting a funeral". It is about hurting the feelings of a mourning father.

madawaskan said...

Well maybe the Virginia AG Cuccinelli has found the right balancing act-in aletter from hi spokesperson:

Virginia already has a statute that we believe balances free speech rights while stopping and even jailing those who would be so contemptible as to disrupt funeral or memorial services. That statute, 18.2-415(B), punishes as a class one misdemeanor (up to one year in jail and a fine of up to $2,500) someone who willfully disrupts a funeral or memorial service to the point of preventing or interfering with the orderly conduct of the event. We do not think that regulation of speech through vague common law torts like intentional infliction of emotional distress strikes the proper balance between free speech and avoiding the unconscionable disruption of funerals. We think our statute does. So long as the protesters stay within the letter of the law, the Constitution protects their right to express their views. In Virginia, if Phelps or others attempt this repugnant behavior, cross the line and violate the law, the attorney general's office stands ready to provide any assistance to local prosecutors to vindicate the law. [washington post]

madawaskan said...

Here is the actual statute:

§ 18.2-415. Disorderly conduct in public places.

A person is guilty of disorderly conduct if, with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

A. In any street, highway, public building, or while in or on a public conveyance, or public place engages in conduct having a direct tendency to cause acts of violence by the person or persons at whom, individually, such conduct is directed; or

B. Willfully or being intoxicated, whether willfully or not, and whether such intoxication results from self-administered alcohol or other drug of whatever nature, disrupts any funeral, memorial service, or meeting of the governing body of any political subdivision of this Commonwealth or a division or agency thereof, or of any school, literary society or place of religious worship, if the disruption (i) prevents or interferes with the orderly conduct of the funeral, memorial service, or meeting or (ii) has a direct tendency to cause acts of violence by the person or persons at whom, individually, the disruption is directed; or

C. Willfully or while intoxicated, whether willfully or not, and whether such intoxication results from self-administered alcohol or other drug of whatever nature, disrupts the operation of any school or any activity conducted or sponsored by any school, if the disruption (i) prevents or interferes with the orderly conduct of the operation or activity or (ii) has a direct tendency to cause acts of violence by the person or persons at whom, individually, the disruption is directed.

However, the conduct prohibited under subdivision A, B or C of this section shall not be deemed to include the utterance or display of any words or to include conduct otherwise made punishable under this title.

The person in charge of any such building, place, conveyance, meeting, operation or activity may eject therefrom any person who violates any provision of this section, with the aid, if necessary, of any persons who may be called upon for such purpose.

The governing bodies of counties, cities and towns are authorized to adopt ordinances prohibiting and punishing the acts and conduct prohibited by this section, provided that the punishment fixed therefor shall not exceed that prescribed for a Class 1 misdemeanor. A person violating any provision of this section shall be guilty of a Class 1 misdemeanor.

madawaskan said...

holdfast on the last thread about this brings up an interesting point-

And how does all this square with the "protest-free bubbles" around abortion clinics?

10/6/10 7:40 PM

madawaskan said...

Revenant-

Actually I think the angle is about slandering a private citizen with claims that are not provable.

Pogo said...

President Teddy Roosevelt advised us to speak softly but carry a big stick.

Useful counter-protest would thus involve baseball bats.

Crimso said...

Sorry, but if someone taunted me at a family member's funeral they would be fighting words. The very fact that I fought with those idiots because of their taunting would seem to demonstrate quite clearly that they must have in fact been "fighting words." I'd never take a swing at anyone unless they really had it coming.

madawaskan said...

The church also posted a poem on its website that assailed Snyder and his ex-wife for the way they brought up Matthew.

Chicago Tribune

Rialby said...

I like Jonah's post on "hidden law":

It’s true. If this country worked more properly, if you saw whole bunch of battered, bruised and bloodied people in an emergency room, you might ask “What happened to them?”

Then someone would say, “Oh they went to a Marine’s funeral and shouted something about ‘fags’ and ‘thank God for dead soldiers.’ Then they wouldn’t leave when asked. So they got their asses beat.”

And you’d respond, “Ah. Sounds about right.”
And then you’d go about your day.

John Burgess said...

'Bubbles' or setbacks have been approved by the courts. In the case of the Phelps' protests, bubbles have been approved, up to 1,000' away, if I recall correctly.

They are not being charged with physically disrupting the funeral, but instead of creating intentional emotional distress among the mourners.

To make that an exception to the First Amendment, that is, to make it criminal to offend mourners at a funeral, would be to create a new version of the First Amendment. I suspect the USSC is loathe to do so and so the Phelps' will walk away with another win.

I'm actually surprised that given how long the Phelps have been up to these tricks, some anonymous group of veterans hasn't taken matters into their own hands and harrow the earth of all things Phelpsian. Vets are law-abiding, it appears. Good for them. Too bad the Phelps won't experience earthly justice, though...

Jim said...

I really don't see how this is a First Amendment issue at all.

The family obtained a CIVIL judgment against the Phelps' church. No one tried to stop the speech.

The First Amendment is a guarantee of a RIGHT to speech. It is NOT a guarantee a right to speech WITHOUT CONSEQUENCES.

They clearly had a right to be offensive. The family clearly had a right to sue for the emotional distress which the Phelps' clearly went out of their way to inflict.

I really don't see what the problem is here re: the First Amendment except that the Phelps' seem to think that the First Amendment is something it clearly is not.

mc said...

I understand that certain veteran displays have kept the offensive and sadly misguided (if so, so, so angering) church protest groups (a sick family?)at a reasonable distance.

Counterprotest, far more reserved and dignified, is a necessity.

Not new precedent.

God help us all if we go down a road which gives further grievance to everyone from these warped families to the muslims (I stopped capitalizing them in my own childish protest.)

Further speech and a suspension of disgust. Like trying to clean up after an adult who is no longer continent.

The patriot act should be a lesson on over-reaction.

The seams appear to be coming apart, or I may be in need of another glass of wine.

Please no more hate crime idiocy which will blow back on all who use the web.

edutcher said...

Agree with madawaskan (which doesn't happen often).

The issue is that the First Amendment was written to protect people speaking against the government, as opposed to just shooting off their mouths - thus, Oliver Wendell Holmes and the crowded theater.

These people have some axe to grind against homosexuals. If you really want to push it, no way is this one First Amendment.

madawaskan said...

I love the juxtaposition-

can you imagine the Founding Fathers invisioning "free speech' to enable America's military families to be dishonored.

Anyone who has a problem with that is being lectured to-as "being emotional".

Decorum and all that..pip, pip, cheerio.

The Founding Fathers would have had enough of a sense honor to be outraged.

I doubt they ever envisioned the belief of free speech would be twisted to undermine the families of our war dead.

Now that civilians are so separated from the military community this is "a right".

What does it say about a country that it cannot "allow" the families of it's war dead some moment of dignity and peace?

Synova said...

Yeah, and the ONLY reason that this doesn't come under the "fighting words" exception is that no one killed the bastards.

Yay, us.

EDH said...

Meanwhile, isn't verbal "bullying" being criminalized across the country?

madawaskan said...

edit:

*its* war dead.

AST said...

Nope. Not buying it.

They have a right to speak out against gays and war and whatever else they want, but they don't have the right to force the rest of us to listen to it or watch it. This is disorderly conduct. Protesters in the past had to be willing to be arrested to protest unjust laws. The same should go for these jackasses.

What's left of the concept of public nuisance, if these creeps can use their sheer obnoxiousness to capture nationwide notoriety?

Bob said...

And the Westboro Baptist Church hates Ann Althouse too.

wind.rider said...

Instead of a test of the 1st, I view this as a test of 'your rights end where my nose begins'.

Almost everyone stipulates that the Westboro activities intentionally inflict emotional distress - they are designed specifically to do so. While there is really no question that the Phelps, and their followers, have every right in the world to hold a specific or particular belief, regardless of what others think of it, that's not really the question. The question is whether they should be allowed, by clouding their activities in the twin shields of religion and free speech, to act in a manner that is intentionally designed to cause harm to their fellow citizens - even if the harm is in the form of emotional trauma. The fact that such harm is inflicted in a one time to get it right situation - the interment of a deceased loved one, makes such behavior particularly egregious. There is no do over. There is no amount of mere money that will expunge the harm done.

Let Phelps and his followers parade down Main street. Let them gather in the public square and shout themselves hoarse. Freely allow them to publish their dogma via whatever venue they may choose or may be able to afford.

But remind them, clearly, unequivocally, that their right to loudly proclaim that they're blithering doofuses ends when they use such freedom, intentionally, to harm grieving parents and relatives at a one-time ceremony honoring and remembering blameless and honorable family members.

Fred Phelps has decided to spend his life pushing as hard as he possibly could to be as irritating and obnoxious as possible, daring anyone to step up and tell him that there is a line he shall not cross.

He's crossed it with the course of action he's chosen for himself and his followers. Time to draw the line very brightly, and tell him to get his nutball ass back on the other side of it.

Bob Ellison said...

This situation draws obvious comparison to the Skokie case, but nobody's auditioning for the ACLU part. Who would? Maybe someone from Reason?

I think Crimso and Rialby have it about right. Speak away! Don't mind my fist.

Pogo said...

Muslims will use the Phelps tactics with much success. Sharia installed by lawfare.

Big Mike said...

Phelps says this protest was never intended to provoke a fight.

Did she really say that?

More to the point, does anybody sane -- and I deliberately emphasizes the word "sane" -- really believe that?

traditionalguy said...

The Phelps' methods are as non-Christian as can be invented and blamed on Christianity. The real Christians need to denounce Phelps in public and suggest their people not do any business with the followers of Phelps. He reminds me of a Jim Jones type false prophet that has mind controlled some simpleton followers.

madawaskan said...
This comment has been removed by the author.
madawaskan said...

How about the Supreme Court rules for the family limited to the precise facts of this case, and allows the family to pursue the claim?

So you could accomplish two things; defeat Phelps on the case and and at the same time not create any broad exceptions to First Amendment speech protection.

Bender said...

The First Amendment protects your right to speak. It does NOT give you a right to impose yourself on others and force them to listen to you, it does not compel that a captive audience have your crap shoved down their throat.

A group of mourners at a funeral is such a captive audience -- they cannot go elsewhere to avoid your obnoxious speech. They cannot avert their eyes or ears.

To force yourself upon them is to violate their First Amendment right to be left alone.

You want to act like an asshole, then go be an asshole in your own "church."

Synova said...

"The real Christians need to denounce Phelps in public and suggest their people not do any business with the followers of Phelps."

Well, other than the fact that such denunciation will be seen as victory by the Phelpses... in what respect is any of what you suggested not already the case?

Does someone NOT denounce Phelps in public? Who does business with these people who isn't forced to or ignorant of who they are until afterward?

Synova said...

Getting the shit beat out of them with baseball bats would also be seen as a victory by them, which may explain why no one has done it, but it would hurt just the same.

Pogo said...

Once the average citizen has had all possible peaceful means of response removed or repudiated, the only remaining answer is violence.

Thanks, hippies.

Barry Dauphin said...

I think too many are making First Amendment hay out of an issue that is more about disorderly conduct. In this case the Phelps family followed the law (obeyed the police). If the family wants to sue, they should sue the jurisdiction for having an ineffective law. Nonetheless Nina Totenberg remains insufferable in talking about the case, as usual.

Not only can't you shout "fire" in a crowded theater, you can't shout the text of the First Amendment 100 hundred times in a crowded theater either. The content of that kind of speech is not relevant; the disruption to public order is at issue. The Phelps couldn't barge into the funeral reading the Constitution at the top of their lungs. Maybe the city can create a nice public space where yahoos can spout speeches that no one has to listen to.

There are a million ways for the Phelps to "get the word out". I think they deserve to win the case, but all the First Amendment fingernail biting is a bit much. If they happened to lose this case, the end is not near. The republic would survive.

garage mahal said...

Making Phelps go away can easily be done. In this case, WV style. With a celebratory line dance. Where there is a will there is a way.

Methadras said...

The WPC is a zealotous organization created for the sole purpose to avoid taxation and they use their 1st amendment rights to preach their particular brand of fire and brimstone as a means to back that religious tax-free status up. I agree with David, it will be 9-0. They have committed no crimes, they have not squelched the counter-claims against them. They are simply using their religious fervor to promote their legal tax dodge. Their anti-homosexual message is understandable and with many people it is identifiable, but their methodology to spread this message is wrong and very extreme, but not illegal nor does it violate any tennent of the 1st Amendment I can think of. They are fighting the wrong thing, they should be attacking political correctness and multi-culturalism that has paved the way for the mainstreaming of homosexuality.

Synova said...

And I don't know that anyone has said what affect a ruling that purposefully inflicting emotional distress (or whatever it was) does not trump "free speech" will have on bullying ordinances, sexual or racial harassment rules even in the workplace, or even laws protecting privacy - such as broadcasting a video of you having gay sex in your dorm room, or slander or libel laws as holdfast mentioned.

Althouse... you said you agree. At what point do *you* think that a tort (as far as I've managed to catch on to what that means) for damages is appropriate? If personal harassment due to the fact that an individual has personally suffered the death of a loved one doesn't count, how *possibly* can harassing someone because they are gay count? How can a workplace be a special case and a funeral not?

Explain it to me.

Synova said...

Garage that is just heartbreaking.

Maybe the counter protest can be directed at the little children. Get a bullhorn and proclaim the Gospel. Sing "Jesus Loves the Little Children" and say "God so loved the world... God LOVES the world... Jesus died to save us... God is Faithful and Just to *forgive* our sins..."

Stuff like that.

They might remember when they're older.

Synova said...

The mind boggles to wonder what hymns they sing in that church. Even all my gloomy Lutheran ones are clear on redemption.

Revenant said...

Actually I think the angle is about slandering a private citizen with claims that are not provable.

The court already rejected that claim in an earlier trial.

The only thing Phelps was found liable for was inflicting emotional distress. Which is a silly basis for a lawsuit, in my opinion.

peter hoh said...

I expected Margie to hold it together for the High Court. Or rather, I expected that Margie would not act out the way she often does on camera and on the street.

I haven't quite figured out if the rage she displays is an act or if it's real. If she had raged at the Court, then I would lean more toward it being real.

As Cedarford suggested in the other thread, the Phelps defer to power that they know they cannot manipulate.

peter hoh said...

Tmink, the counter-protest you propose has been done.

Madawaskan, has Westboro protested in Virginia since that statute was passed? I know they threatened to show up after the shootings at Virginia Tech, but I don't know if they actually did.

bagoh20 said...

You really think this is what the framers were trying to protect?

We need to go nuclear on this church with a Boy George concert. Wake him up, slap him conscious and get him singing. They will wither and die like the weeds they are.

Gene said...

First Amendment rights seem increasingly under attack these days. I remember when Bush was president the cops arrested a man with a protest sign lest Bush see it when he went down the highway in his motorcade. If I'm not mistaken the man was in a field or something. I don't know where he is now. Probably Guantanamo.

Synova said...

Maybe it is silly, Revenant, but they are so careful to keep that lawyerly deniability... how personal and direct can they be and still deny in court that it was personal?

They even get off the "personal attack" thing when they name individual *names* of private individuals because they use the same poem? Excuse me? Private individuals lose their rights if the person attacking them cuts and pastes a new name into the same piece of defamation?

Private individuals lose the right to privacy if they put out an American Flag?

And the posters of men doing anal and oral sex can't violate any public decency law because they are stick-guys fucking. How clever!

This is why people HATE LAWYERS.

madawaskan said...

Rev-

The only thing Phelps was found liable for was inflicting emotional distress. Which is a silly basis for a lawsuit, in my opinion.

Well if it's so silly on what grounds did the Supreme Court grant cert?

*******************************

peter hoh-

I don't know good question.

I didn't know that Virginia just recently passed the statute. Didn't look at it that closely.

Multi tasking and other crapola.

*If* they passed it in response to Westboro and it's had the desired effect-could be interesting.

I was reading that the statutes of the other 48 states could *possibly* be overturned by the Supreme Court ruling-I wonder if the Virgina statute would escape that problem...

peter hoh said...

I bet Holder could generate a lot of goodwill if the entire Phelps clan was whisked off to Kazakhstan.

madawaskan said...

Synova

And the posters of men doing anal and oral sex can't violate any public decency law because they are stick-guys fucking. How clever!

Great didn't know that one either....

Jeebus, you'd think that lawyers would be smart enough to get this absolute loon.

madawaskan said...

peter

LOL!

Get this in the world of weird alliances-CBS was calling Alito brilliant during questioning.

el polacko said...

for the record, nobody seemed to very much care (in fact, many commented that the phelps clan had the right idea, just presented it poorly) when, for decades (and especially at the height of the aids epidemic), this hate-consumed 'church' picketed the funerals of gay men.
the pain that surviving members of the families experienced as a result hearing the screams of "your son is rotting in hell" was shrugged off as what should be expected for raising a gay child. it wasn't until phelps diverted his obsessive hatred of gay persons to blaming the military for defending a country in which gay citizens were allowed to exist that everyone flew into a tizzy about how awful it all is.. for the military families. is part of the discomfort with the phelps' message that their homophobia (for lack of a better word) is not so far removed from generally accepted bias against gay folks in our society?

peter hoh said...

Westboro Baptist Church are the New York Yankees of free speech.

Freeman Hunt said...

El Polacko, what are you talking about? Phelps was originally infamous for his "God Hates Fags" shtick. He didn't suddenly become hated when he started the military funerals thing.

Synova said...

"the pain that surviving members of the families experienced as a result hearing the screams of "your son is rotting in hell" was shrugged off as what should be expected for raising a gay child."

Was it?

The first I remember of Phelps was when Matt Shepard (?) got killed. I didn't know a single person who thought that "God Hates Fags" was appropriate. Whenever they got attention people expressed disapproval, even those who disapprove of homosexuality. The "AIDS is punishment from God" thing really didn't last very long, all told. And actually both of those things were disapproved of on doctrinal grounds... no God does *not* hate fags... no God does *not* hate fags and give them AIDS.

If people "shrugged it off" it's probably that they didn't know about it.

Which is really odd since the media really loves to try to tar Christianity with the most obnoxious and vile examples of those who claim to be Christian.

peter hoh said...

It's not that people approved of Westboro when they limited their protests to the funerals of gay people. After a while, people figured out that Westboro was only in it for the attention. Media groups often agreed to not cover them when they staged one of their protests.

It was getting to be a tired act.

In 2003, Westboro got some of that old magic back when they protested at Mr. Rogers' memorial service. Soon after, they hit upon the idea of protesting at military funerals.

peter hoh said...

Actually, I think that HRC ought to give Phelps a lifetime achievement award. He and his loony family have made public opposition to homosexuals de classe.

Titus said...

Personally, love the sinner but hate the sin.

I hate the sin more than I love the sinner though.

If the sinner could just stop sinning I would be ok.

Actually I kind of hate the sinner too.

Hog.

Titus said...

There are exceptions though, if the sinner is really hot I may be willing to hate them less.

former law student said...

peter hoh is right: the Phelpses are just mega attention whores. Amazingly they are more obnoxious than Nazis marching through a town full of Holocaust survivors.

David said...

This might be a good time to focus on the idea that "freedom of speech" applies to the concept that what is protected is you ability to present a message, not to intimidate or force people to listen.

I started thinking about this with regard to the Andrew Shirvell case. Over the years, we have allowed "free speech" to mean when people block the functioning of society (demonstrations that block people, vandalism, etc.). Do you need to do this so that people can hear your message. Not really. It does draw attention to your cause, but isn't that sort of "forcing someone to listen"? Similarly, there has been a willingness to target people that you disagree with tactics designed to embarrass or even intimidate. (Pickets that harass people at abortion clinics, harassment of CEOs of corporations, harassment of government officials). Is that free speech? Your message actually might actually be seen by more in the center of town, so isn't the reason you are there is to make life uncomfortable for someone you don't like? Is that "freedom of speech".

Increasingly, I think there need to be a line between speech and actions. You can say anything you like, no matter how odious. But if you show up and thrust yourself into someone else's life, that isn't "speech"

Gary Rosen said...

"Amazingly they are more obnoxious than Nazis marching through a town full of Holocaust survivors."

Not a high bar for some (C-fudd, FLS)

Gary Rosen said...

"As Cedarford suggested in the other thread, the Phelps defer to power that they know they cannot manipulate."

You mean the thread where he called the mourners "pussies"?

Revenant said...

Maybe it is silly, Revenant, but they are so careful to keep that lawyerly deniability... how personal and direct can they be and still deny in court that it was personal?

I don't care if it was personal or not. The idea that a person deserves millions of dollars for "emotional distress" is crap.

Suburbanbanshee said...

The Phelpses are fraudsters. They sue frivolously. As lawyers, they are disgraces to the bar and not fit to be associated with the courts. Their theology is menacing, as they believe that God will send them to kill everyone else but them, at the end of the world. Go after them on one of those reasons, not on this.

Letting them ruin freedom of speech and assembly for everyone is amazingly dumb. It gives the Phelpses the last laugh.

Clyde said...

I am not a lawyer, just a citizen with common sense. To me, this doesn't look like a "freedom of speech" case, it looks like a bunch of assholes disturbing the peace. Someone needs to tell Phelps and his cult "At long last, sir, have you no decency?"

AllenS said...

Professor you say that you're all in favor of this group having free speech. You are selective in your choice of people with free speech rights on this blog. You won't hesitate to delete comments that you don't like. Comments that you find offensive. I guess that since you will never be attending a funeral for one of your sons who was KIA, you won't witness how hurtful this group could be. Fuck 'em, right? Man up, right? Quit acting like pussies, right?

A.W. said...

I said in the last thread, we can enforce silence for decorum’s sake, in certain situations. You can establish a moment of silence in a school, or on certain special occasions. And if people disrupt that, you can throw them out—you can use state power to silence them.

The difficulty here is that funerals are not really politics-free zones. In fact, speaking politics at a funeral is sufficiently part of our tradition that historians have a name for it: the funeral oration. It goes back all the way to the Greeks, at least. Abraham Lincoln gives a nice example of it in the Gettysburg Address, and MLK did the same when they buried the girls who were killed in the bombing of the 16th St. Baptist Church. Not to mention things like people saying that the death of Ted Kennedy meant we had to pass healthcare, and the like.

So I think if the family of the deceased has made the funeral into the kind of event that invites comment, then they live with the consequences of having people debate what his death really means. If you tell the world that Ted Kennedy is dead and that means we should have universal healthcare, don’t be surprised when the family of Mary Jo Kopechne shows up at the funeral. But if you keep the funeral a private affair, then I think your privacy can be properly recognized.

The key is to say that this is neither the time, place or manner of advocating a political or policy point. So as long as you keep it a minor affair, not a political event, its okay.

Now here, the problem I have is that the case was not based on a neutral rule like that, but the vague tort of intentional infliction of emotional distress. Frankly, my understanding is that normally mere words don’t count. It has to be something more, like telling a person their child is dead, when they were not. And telling them their child is burning in hell, when I am pretty sure the person is not, doesn’t count. But a rule that says stay back X number of feet doesn’t trouble me much.

I will add that if the supreme court says they can do this no matter what, there is a danger people will literally amend the constitution.

I will add that another solution, if the supreme court rules in favor of these idiots, is to start using graveyards and plots set up so that there is a large stretch of private property between you and the nearest public space. Then you don’t need a special rule, just ordinary property rights.

A.W. said...

allen

there is a world of difference between saying the government cannot suppress speech, and saying a person cannot do so in their own property, including the intellectual "zone" of a blog. the key is private v. government action.

i myself prefer to be pretty libertarian in how i deal with comments. but to each their own.

But no one really says anyone could say anything at any time. i mean if al gore wanted to walk into your living room and tell you 24/7 how you are destroying the planet, sooner or later you would tell him to leave right?

AllenS said...

If that happened, AW, when Al Gore left, he'd be carried out.

AllenS said...

the key is private v. government

Who owns the cemetery? Who owns the road next to the cemetery? Can the government tell me what I can do on the road? Can I speed? Drive drunk? Jaywalk? Stand naked on the road?

MadisonMan said...

Then someone would say, “Oh they went to a Marine’s funeral and shouted something about ‘fags’ and ‘thank God for dead soldiers.’ Then they wouldn’t leave when asked. So they got their asses beat.”

But as Peter has noted, the advance work of the Phelps family is to extort police protection for the clan prior to the protest. Hard to do battery in view of the police.

AllenS said...

The word/term religion was hijacked when Scientology was ruled to be a religion.

Fred4Pres said...

Offensive speech is protected, but timing and location are the issue.

My guess is Phelps wins this, but if you allow this how do you justify campaign finance reform? Free speech is free speech.

Frankly I am more offended by national campaigns putting protestors hundreds of yards away and getting away with it than I am by the disgusting members of the Westboro Baptist Church.

Class factotum said...

The mind boggles to wonder what hymns they sing in that church. Even all my gloomy Lutheran ones are clear on redemption.

If Catholics have to endure the drivel that is Marty Haugen and David Haas, surely God has something way worse for these jerks.

Trooper York said...

I was just banned from the comments of Television Without Pity.

I wish I could bring it to the Supreme Court but I can't afford it.

Trooper York said...

I will however be doing a series of posts about it so you can see what speech Nazi's really look like in real life.

peter hoh said...

AW: I will add that another solution, if the supreme court rules in favor of these idiots, is to start using graveyards and plots set up so that there is a large stretch of private property between you and the nearest public space. Then you don’t need a special rule, just ordinary property rights.

AW, your solution has been tried and found wanting.

In this case, the Phelps set up to protest where the police told them to set up. They were far enough away that the father didn't see or hear them from the church where the funeral took place.

Gary Rosen, Cedarford says a lot of things. I'm not going to ignore a useful insight because of other things he says.

peter hoh said...

Lithwick writes: She uses the term "up in their grill" several times today. As a legal matter or even a practical one, it makes absolutely no sense as far as I can tell, but it is rather charming when delivered in a dead flat monotone.

Is this the first time that "up in their grill" was part of an oral argument before the Supreme Court?

While on the topic of cultural references, too bad this clip couldn't have been entered into evidence.

Bender said...

They were far enough away that the father didn't see or hear them from the church where the funeral took place.

THIS is the key factor in the entire case, the fact that they did not disturb the actual funeral and the father did not learn about the activity until long after, which puts it totally in the realm of the Jerry Falwell case, where Hustler had published a fake ad suggesting that Falwell had had sex with his mother.

Under that precedent, the father loses.

However, the Court will NOT say that the Phelps' have a protected right to protest at funerals. They don't. If they had actually disturbed the funeral, if they had forced their odious speech upon the mourners, then we have an entirely different case. Under the captive audience cases, as well as the fighting words cases perhaps, both of which involve the listener being directly hit with the speech, because the listener also has a fundamental right to NOT have to listen, then the Phelps would have lost.

former law student said...

Not a high bar for some (C-fudd, FLS)


What did I say now?

The Holocaust survivors I knew lived in Rogers Park and Lincolnwood, not Skokie.

Jenner said...

In the abstract, the Free Speech determination for this case is easy. But isn't there something to "when" & "where" they decided to exercise their free speech?

Spouting off about homosexuality being the reason for soldiers getting killed, in the abtract, is protected free speech.

But purposefully connecting that speech to a particular dead soldier, I think is a harder question.

When I first heard of the case, and the poem/essay that included the name of the Marine killed, I thought that they were targeting him because he was gay. As it turns out, this does not appear to be true, but what they did certainly cast a false light on the truth, and bring negative attention to an extremely painful situation. I would say that appears to satisfy intent, at the very least, in a reckless way.

But if we are going to allow this speech, that is specifically connected to individuals similarly situated (private citizens), meaning that that exact protest would not have taken place but for that funeral taking place, then I fully agree with Synova, that all of the sexual harassment/PC thought laws also need serious review.

If it's all about hurt feelings, and we are people of principle, then we must purge those laws that forbid rude, insulting, obnoxious behavior. And instead get back to a culture where common decency is not so rare. Where people self-regulate and treat others as they wish to be treated. But if we need laws to tell us how to interact with others on things that should be common sense, then here the Phelps and WBC also need to lose.

Fen said...

The Phelps clan are abusing the law to score civil lawsuit awards. As such, they should not be protected by the law.

They should be shot, as an object lesson to others.

I'm going to track them through the obits. To disinter their corpses and feed them to the crows.

Fen said...

Professor you say that you're all in favor of this group having free speech. You are selective in your choice of people with free speech rights on this blog. You won't hesitate to delete comments that you don't like.

Too true. Ann is not the champion of free speech that we thought she was, at least not when it pertains to her. She's a hypocrite, like most libs.

AllenS said...

Me and you, Fen. Me and you.

Trooper York said...

As much as I hate to defend the evil blogger lady, she does let a lot more go than almost any other blogger out there. Including personal attacks against her. I don't think it is fair to upbraid her when so many other people are so much worse.

The only blog where speech is totally free is of course mine.

I have only deleted one comment for cause and that was cause Meade asked me because it was too personal an attack.

And I have only deleted one post because Garage asked me too funny and he was embarrased.

But we have to give the blogger lady a break. Just sayn'

peter hoh said...

I've been banned over at http://nomblog.com/

Honest, I was no more obnoxious there than I am here, but I must have pissed somebody off, and they booted me.

Trooper York said...

I got booted off Television Without Pity for defending gay marriage of all things!

Not exactly my issue but what the fuck, those Nazi's couldn't take it. In a thread about the Real Housewives of DC where it was an intergal part of the episode.

I am talking about you Kay Howard.

I am coming for you!

Jenner said...

"THIS is the key factor in the entire case, the fact that they did not disturb the actual funeral and the father did not learn about the activity until long after"

This doesn't appear to be true - the father said that WBC put out a press release announcing the protest at the site of the funeral. Security was hired, but the funeral was still impacted by the circus atmosphere.

ampersand said...

If a group organized to follow the 9 justices around from morning to night, carrying signs naming them
assholes,c*cksuckers and c*nts,how do you think they would rule?

peter hoh said...

I'm not really a fan of corporal punishment, but I'd love it if Scalia determined that there was a special, heretofore undiscovered clause in the Constitution detailing a "Supreme Woodshed," in which the Court could dispense some good old-fashioned justice on these miscreants who are intent on abusing the system.

Gary Rosen said...

"Cedarford says a lot of things. I'm not going to ignore a useful insight because of other things he says."

Most of his "useful insights" based on his pretense of inside knowledge turn out to be pure bullshit when he's confronted by someone who actually knows what they're talking about. I'm sure there are some real gems scattered through "Mein Kampf", but the only insight you get from C-fudd's posts is what a classic case of APD (antisemitic personality disorder) he represents.