October 6, 2010

Margie Phelps, a daughter of Fred Phelps, will be arguing before the Supreme Court today.

The issue is freedom of speech, and the speech in question is repulsive. (Phelps's church protests near military funerals, with signs like "Thank God for Dead Soldiers," to express the view that God is punishing the U.S. for its immorality.) The father of one soldier sued for intentional infliction of emotional distress — which is a tort — and won $5 million against the church.

Much more detail at SCOTUSblog.  This is telling:
[T]his case has about it the promise of rewriting a considerable body of First Amendment law.

For a Court that so recently had refused to create a new exception to the First Amendment’s protection (so as to permit the outlawing of animal cruelty videos and films), the task of crafting a “funeral rights” exception to free speech doctrine may be a forbidding one. But for a Court hearing this case in the midst of war weariness and an expanding fear of decaying morality, the prospect of drawing a First Amendment shield around the Westboro Baptists’ message may also be a daunting one.

Perhaps this is a case in which the quality of legal advocacy, during oral argument, could make a difference. If one side or the other’s lawyer were to falter, for lack of seasoning at that demanding podium, it might ease the Justices’ decisional choice — but, then again, maybe not.
The quality of legal advocacy... is that meant as a laugh line? How did it happen that the work of upholding First Amendment rights is in the hands of Margie Phelps? I don't know the story, but it's not that the usual free speech defenders have failed to support these profoundly unpopular and ugly speakers. There are amicus briefs from the ACLU and from law professors in support of the Phelps group.

It will be interesting to see how Margie Phelps carries out her lawyerly task. Back in 2004, Michael Newdow argued his own case in the "Under God"/Pledge of Allegiance case and his nontraditional, passionate style seemed to work rather well.
Dr. Newdow, a nonpracticing lawyer who makes his living as an emergency room doctor, may not win his case.... But no one who managed to get a seat in the courtroom is likely ever to forget his spell-binding performance.

That includes the justices, whom Dr. Newdow engaged in repartee that, while never disrespectful, bore a closer resemblance to dinner-table one-upmanship than to formal courtroom discourse. For example, when Dr. Newdow described ''under God'' as a divisive addition to the pledge, Chief Justice William H. Rehnquist asked him what the vote in Congress had been 50 years ago when the phrase was inserted.
The vote was unanimous, Dr. Newdow said.

''Well, that doesn't sound divisive,'' the chief justice observed.

Dr. Newdow shot back, ''That's only because no atheist can get elected to public office.''

The courtroom audience broke into applause, an exceedingly rare event that left the chief justice temporarily nonplussed. He appeared to collect himself for a moment, and then sternly warned the audience that the courtroom would be cleared ''if there's any more clapping.''
I doubt if there will be any clapping for Margie Phelps. Or any dinner-table-style repartee. She's coming in from the other end of the God spectrum, and we shall see how that sounds.

129 comments:

Hagar said...

No one has the "right" to disturb a funeral.

Ann Althouse said...

@Hagar The question is whether there is a right that precludes the disturbed person from going to court and getting money from the person who disturbed him. Do you think the government should be involved in awarding money to private citizens who are disturbed by the speech of other private citizens?

MadisonMan said...

It's unpleasant to side with an odious toad, but I find myself agreeing with Phelps here. He and his group should have the right, as Americans, to agitate anywhere, and that includes a funeral. (Not knowing everything about the case, I'm assuming the protest was not right at the grave).

Intentional infliction of emotion distress? Is that just an anti-bullying law for adults?

Fred4Pres said...

If I had to predict the style she will use, I am guessing "shrill."

Robert Cook said...

As repulsive as is the Phelps' sentiments and behavior, I think if we take our freedom of speech seriously, we have to support them against such suits. Free speech does not apply only to speech we find agreeable to ourselves, or which is well-considered and doesn't "hurt feelings." How can one know whether one's sentiments, honestly expressed, will or will not hurt someone else's feelings, and why should we be fearful of civil consequences if we do, intentionally or not, hurt someone else's feelings or offend their sensibilities?

Obviously, we should not support libel or slander, or persons invading the private domiciles of other people to inflict on them their offensive sentiments, but as long as such expression is carried out in public spaces it must be allowed.

Salamandyr said...

I once argued passionately that the flag burning decision was decided wrongly, that such "fighting words" speech was not protected by the First Amendment. I've since changed my mind. In this case too, as odious as the speech is, I can't support the government censoring it. We have a right to assemble, we have a right to speak our minds.

peter hoh said...

If Margie Phelps is "coming in from the other end of the God spectrum," and Michael Newdow is at the other end, well, then there are a lot of us hoping that there are more than two ends to God's spectrum.

Fred4Pres said...

I do not know enough about the facts in the underlying tort case to know if it violates the first amendment or not. It is tricky because it is real fact specific.

The first amendment precludes the government restricting your speech. And as offensive as I find Fred Phelps and his family, I do not want the government clamping down on their free speech rights. But didn't Holmes say you may have a first amendment right to say something and your boss still has the right to fire you for it. I am also concerned about clamping down on private to private civil actions.

And it is not the government "awarding money". The courts are the forum for resolving dispute between private individuals and I am guessing it was a jury that made the final determination. That is not the government but the people.

Superdad said...

I think this Phelps guy is a complete moron and I would probably do him physical harm if I were at one of these funerals.

What is the status of the fighting words doctrine? I really have a hard time understanding how this case is not within that doctrine (i.e. exception to free speech).

All that said, I think the entire concept of intentional infliction of emotional distress is a joke.

peter hoh said...

Wait a second, I thought it was already settled that the feelings of the 9/11 families trumped the first amendment.

Maybe the dead soldier's family doesn't have as much authority as the 9/11 families.

Fred4Pres said...

Wait a second, I thought it was already settled that the feelings of the 9/11 families trumped the first amendment...

Peter, Peter, Peter. Nice try, but no.

HDHouse said...

If the Court doesn't act then we will have, I suppose, a hodgepodge of laws in various states in reaction to this.

Isn't there an argument to be made that left to their own devices we will soon have a checkerboard instead of a uniform way to handle or ignore this?

Tibore said...

I'm confused, and that confusion is exacerbated by the fact that I'm a total layman where it comes to law. But: I thought the original award to the Snyder family was simply a tort about emotional abuse and invasion of privacy. How'd it get turned into a First Amendment case? From my layman's point of view, I thought that the distinction here was not that free speech was being suppressed, but rather that damage was done to the Snyder family due to the actions of the Westboro Church. What am I missing in all that?

Tibore said...

Oh, wait, axe that question. I see that the Professor answered in in the second post replying to Hagar.

New "Hussein" Ham said...

"But for a Court hearing this case in the midst of war weariness and an expanding fear of decaying morality, the prospect of drawing a First Amendment shield around the Westboro Baptists’ message may also be a daunting one."

What claptrap. It's not a daunting at all to build such a shield.

Because there is already a shield. The Supreme Court needn't construct one. The Constitution is our shield. But even it is merely a recitation of God-given rights - merely a list of that which we possess from birth and that which no mere panel of judges can take from us.

Rip up the Constitution ... be my guest. You have not even begun to encroach on my rights - because the Constitution is just a piece of paper elucidating rights that you cannot take from me.

Only God has that power.

The Supreme Court should do the right thing; read the fucking Constitution and follow what it Goddamn well says.

Or else the Supreme Court has no purpose or future in our society. Only repulsive speech requires any protection.

DKWalser said...

...Not knowing everything about the case, I'm assuming the protest was not right at the grave....

IIRC, the protests were staged at the entrance to the cemetery, so the funeral party could not avoid passing by the protesters. In many cases, the protests were within sight of the grave. Worse, the protesters could be heard during the grave-side services.

While I think these tactics are beyond merely rude, I also think they should be protected under the 1st Amendment.

The only concern I have in that regard is whether or not the law should be allowed to prohibit the protesters from interrupting the grave-side services. The person conducting the grave-side services shouldn't be forced to shout to be heard above the protesters. Similarly, the LDS Church puts on an Easter Pageant at their temple here. Several groups protest at the event each year. When some of the protesters resorted to using bull horns during the pageant (which is held outdoors), the city passed an ordinance requiring the protesters to stay across the street and forbade the use of bull horns. It struck me as a reasonable compromise. The protesters can protest, but they cannot make such a racket that the Church cannot put on the pageant. While I think the compromise is reasonable, I've never felt quite sure that it's consistent with the 1st Amendment.

Salamandyr said...

Tibore,

That might be an interesting distinction. But it opens up a hole in the First Amendment big enough to drive a truck through it. It's constitutional to say whatever I feel like, but I can then be sued by anyone who doesn't like what I say? If the government endorses such actions, then it appears to me that is as much censorship as more overt government action.

Big Mike said...

I thought you law professors had a saying that bad cases make bad law. I can't imagine a worse case than this one.

Ann Althouse said...

"Wait a second, I thought it was already settled that the feelings of the 9/11 families trumped the first amendment."

I don't remember anyone saying that the govt could block the mosque because of the disturbing message. Instead, people were arguing to that there should be a voluntary, private decision not to build the mosque. That equates to the argument, directed at Phelps and his confederates, that they should, on their own, give up the practice of protesting at funerals. And I haven't heard anyone saying that we should stop saying that to Phelps. In fact, we say it so much that we can't even imagine anyone saying the equivalent of what is said to the mosque-builders: Go ahead and do it now! You must! To prove that we have free speech, you should keep going to military funerals and holding up signs about how much God hates us!

jimbino said...

It is about time that the American people came to recognize that a funeral is a religious ceremony, just like a wedding, baptism or confirmation.

The government should not be involved in any of them, of course, and when it is, folks have the right to demonstrate against the ceremony.

If religious people want to be free of controversy, let them hold their religious ceremonies in private, without government involvement. Then they can bar anyone they want to.

Religion poisons everything.

Ann Althouse said...

"I thought you law professors had a saying that bad cases make bad law. I can't imagine a worse case than this one."

The saying is: Hard cases make bad law.

Actually, this isn't a hard case.

You might remember that Friedman and Lithwick article in Slate the other day, in which they argued that the Court takes cases with very ugly unpopular parties so they can make some bad doctrine and no one will notice. That could happen here. I don't think it will.

New "Hussein" Ham said...

"Isn't there an argument to be made that left to their own devices we will soon have a checkerboard instead of a uniform way to handle or ignore this?"

Muslim terrorists bent on instituting Sharia law in the United States are watching closely.

If Phelps can be shut down ... then anyone critical of Islamists can be shut down if the Islamists claim they are violently offended by speech critical of them and their motives.

The Supreme Court is deciding its own fate. That's what this case is about. It's not about Mr. Phelps. It's about whether we need a Supreme Court or whether Sharia replaces it.

The Islamists will murder the court the day they gain the power to do it.

Will the court hand them the suicide vest to do it?

Hagar said...

No. That seems tasteless in this sort of case.

Can the family of the deceased file criminal charges against the Phelps crowd or effectively demand that the government do so? Public nuisance, inciting to riot, accepted community standards, or whatever?

Perhaps the action should lie against the local government for failing to protect its citizens' right to peaceably assemble in the free exercize of their religion?

ryanrocks181 said...

Much as in Franklin's comment about the President being shot if the people had no legal redress for his abuse of his office, someday these Westboro folks will suffer the same fate at the hands of an agonized relative offered no redress in the courts.

roesch-voltaire said...

As repulsive as the Phelps signs are, I suspect the court has to decide to continue with freedom of speech, and at the same time they may suggest why or why not there are other ways to resolve this dispute.

peter hoh said...

I don't remember anyone saying that the govt could block the mosque because of the disturbing message.

Really?

Try this guy, who promises to use the power of the state to prevent the building of the mosque at the Burlington Coat Factory site.

Joe said...

(The Crypto Jew)
It's unpleasant to side with an odious toad, but I find myself agreeing with Phelps here. He and his group should have the right, as Americans, to agitate anywhere, and that includes a funeral. (Not knowing everything about the case, I'm assuming the protest was not right at the grave).

No, they do NOT. I have never understood the problem, so would Althouse enlighten me, and I say that with no irony.

1) IF they are at a private cemetery, NO THEY HAVE NO “RIGHT” TO PROTEST, it’s private property! They have no “right” to protest on my front lawn do they, why, because it’s MY lawn! So if I run a private cemetery, I can restrict who or what comes onto my property.
2) IF it’s a Public Cemetery, again, they have no right…the USSC has held that certain areas, schools, jails, and the like are NOT the equivalent of the “Court House steps” and so are NOT subject to 1st Amendment protections. There is nothing to prevent a Public Cemetery from producing, content neutral rules about allowable displays, in the cemetery! As long as the rules are enforced, equally for Wiccans or US Marines, there can be little dispute.
3) Lastly, street side protests, again, it’s a public thoroughfare, just cite them for disturbing the peace and obstructing traffic and loitering. Protesters don’t have a right to clog streets and disturb the peace, of other private citizens.
I see what they are looking at is private remedies against Phelps, and in that case, yeah I’d say “Too bad about your luck.” But the underlying problem of the Westboro Church protesting at funerals, puzzles me, because, as I say, it’s not hard, seemingly, to eliminate that problem.

lyssalovelyredhead said...

If Phelps can be shut down ... then anyone critical of Islamists can be shut down if the Islamists claim they are violently offended by speech critical of them and their motives.

I hate to agree with NewHam, but this is exactly right. I know that the Phelps group is insanely reprehensible, but it is absolutely necessary to protect their rights in this situation, in order to protect all of our rights.

As for those saying that civil is different from criminal, I disagree. Civil penalties, and the threat thereof, can shut down someone just as easily as criminal. Are you willing to risk your home, savings, and everything that you own in order to speak your mind, any more so than you would be willing to risk losing your freedom? For most people, the answer would be no.

- Lyssa

New "Hussein" Ham said...

"... who promises to use the power of the state to prevent the building of the mosque at the Burlington Coat Factory site."

Paladino never said he wouldn't let the mosque be built.

In fact, he'd be smart to let the Saudi's spend all that money building the mosque and THEN use eminent domain to take the fucking thing and tear it down and build a war memorial in its place.

Let them build the mosque and spend all that money.

And only after they've wasted that money, then let's tear the fucking thing right down to the ground.

That's what I hope Paladino does. Completely legally, of course (see Kelo v. City of New London).

lyssalovelyredhead said...

Re: Joe (the crypto Jew)-

1) Private and public property- you are probably right, but my understanding is that they were at the entrance, not necessarily on the property. No, people can't protest on your front lawn, but they can protest from the public sidewalk 2 feet away from it.

2) street side protests, again, it’s a public thoroughfare, just cite them for disturbing the peace and obstructing traffic and loitering. Protesters don’t have a right to clog streets and disturb the peace, of other private citizens.

If that is what they were doing, then sure, they should have been cited for it. But there is no real indication that they were- this case is about the family's distress. I hope that you are not saying that the police should trump up charges such as disruption of peace or blocking streets in order to shut down speach that they dislike (even if their dislike of the speech is wholely justified).

- Lyssa

Tibore said...

"Salamandyr said...
Tibore,

That might be an interesting distinction. But it opens up a hole in the First Amendment big enough to drive a truck through it. It's constitutional to say whatever I feel like, but I can then be sued by anyone who doesn't like what I say? If the government endorses such actions, then it appears to me that is as much censorship as more overt government action."


Well, that's what I meant when I said I was a total layman on these topics; I don't know where the lines are drawn. It's been over a decade since I took a single course that merely surveyed free speech issues (and only did so for two weeks in the course), so I'm really an amateur at sorting these issues out. I don't know know that it's good to have a tyranny of the public by having speech be hemmed by people's feelings, but at the same time, I don't know if it's good to give people a shield to cause injury via speech then avoid the consequences. I don't know where injury to one person ends must give way to the notion of protecting free speech. The topic must definitely be more fine-grained than what I'm presenting, but I simply am not informed enough on it to know where these distinctions lay.

I admit, I did think there was a difference between questions of censorship and speech that causes injury. This may be a first-year law student-level question, but: Wouldn't libel/slander laws run afoul of protection of free speech? Or is there an exception made for those cases? And if so, was that the fundamental underpinning for the Snyder case, or was it something different?

Blech... I fear I've got a lot of background reading to do if I want to understand the merits of this case. :(

peter hoh said...

New Ham:Paladino never said he wouldn't let the mosque be built.

Here's what Paladino said:

"I'll use the power of eminent domain to stop the mosque. . . ."

You say New Ham, I say nuance.

rdkraus said...

This is what the First Amendment is about. It's to protect us against well-meaning people like Joe.

Not picking on you Joe. Your heart is in the right place. But you're skating down the slippery slope here.

Lincolntf said...

I get dozens of FB/e-mail requests for Veterans causes. I always do whatever asked, sign the petition, add a link to FB page, etc.
But this one I just leave the requests alone, unopened. I don't want to bother explaining to people who've never seen me take a pro-Bigot/anti-military stance on anything in my life that I come down on the side of Phelps.

Joe said...

(The Crypto Jew)
As for those saying that civil is different from criminal, I disagree. Civil penalties, and the threat thereof, can shut down someone just as easily as criminal.

Yeah, Lyssa you might want to ask Tom Metzger of the White Aryan Resistance (WAR) about that. The SPLC has sued him and his group a number of times, in CIVIL COURT and won judgments against them, and against the Klan of Alabama, and the like. They sued on behalf of those injured by WAR or the Klan and they bankrupted both groups. Words have consequences. The First Amendment applies to GOVERNMENT action, not INDIVIDUAL action….why does Fred Phelps have protection from ME? Sure, my law suit could bankrupt him, Oh well, be careful what you say or do….”You” don’t have a right to be an @rse, you have a right to be safe from government prior restraint, that’s it…if it ain’t GOVERNMENT PRIOR RESTRAINT, it ain’t the First Amendment….The USSC has always held that, in the case of libel, slander, or pornography or espionage, though in these araes the issue(s) are a little more complex. The First isn’t an ABSOLUTE right to speak, it’s a qualified right, the right to be safe from the Government, not safe from ANYONE.

Joe said...

(The Crypto Jew)
I hope that you are not saying that the police should trump up charges such as disruption of peace or blocking streets in order to shut down speach that they dislike (even if their dislike of the speech is wholely justified).

Yeah, Lyssa that’s what I’m say’n. only they aren’t “trumped up” charges…loitering ahs a legal definition, so does obstruction of a public right of way….I don’t see why it’s trumped up if you use it against Westboro OR pan-handlers…if they meet the definition cite them, ask them to move, when they refuse arrest them. It’s called “using the system.”

ryanrocks181 said...

"Blogger Ann Althouse said...

@Hagar The question is whether there is a right that precludes the disturbed person from going to court and getting money from the person who disturbed him. Do you think the government should be involved in awarding money to private citizens who are disturbed by the speech of other private citizens?"

No. But I believe that the government should be able to criminally prosecute, fine, and jail individuals who ASSAULT agonized and grieving individuals passing through the most difficult and traumatic times of their lives.

Let me ask you this question:

Should I be able to "protest" on the street across from a nursery school for "mentally challenged" little children with signs attributing "little retards" as "God's" punishment for whatever... fags, Fox News, or Keith Olbermann?

Has the public discourse been furthered once some young mother has been informed of my opinion? Or have "civil rights" eroded if I am arrested, jailed, and fined?

The answer to both questions is no.

E.M. Davis said...

Let local municipalities create funeral buffer zones if they want, but there really isn't a case here. Phelps speech — as awful as it is — should be protected under the far-reaching umbrella of the First Amendment.

garage mahal said...

If you protest a funeral held for innocent Amish girls gunned down in cold blood, you aren't human and don't deserve any rights. I'd gladly go to jail to pummel these miscreants if they came anywhere near a funeral I attended.

Hagar said...

Free speech in a public forum to discuss an issue is one thing; wanton intimidation of private citizens peaceably going about their business quite another.

And I am free to make a snarky remark about the Professor's mode of dress in the thread below, especially since she invited comments by posting the thread, but in no way am I free to drive to Madison and follow her around on the streets with a large sign exhorting her to dress more in conformance with the dignity of her station.

edutcher said...

In the good old days (and they were), this was the other use for horsewhips. This has nothing to do with free speech. If these (and I use the term loosely) people don't like homosexuals, let them protest in the Castro in SK or Greenwich Village in Gotham.

They go to military funerals because they know they will be safe; there will be a modicum of respect for them there, not because their views are accepted, but because most people in the military respect the rule of law.

PS Disagree with Salamandyr on flag burning. It's got nothing to do with free speech, that was just a rubric used by the Lefty Justices who wanted to have it allowed. If you weigh it against the part of the First amendment that I believe applies - peaceable assembly - then it hasn't got a prayer.

This is why Judicial Review is such a fraud IMHO. Clauses and phrases are cherry-picked to be stretched out of all shape to justify whatever the guys in the black dresses want allowed.

MadisonMan said...

And I am free to make a snarky remark about the Professor's mode of dress in the thread below, especially since she invited comments by posting the thread, but in no way am I free to drive to Madison and follow her around on the streets with a large sign exhorting her to dress more in conformance with the dignity of her station.

Following her around would be harassment. But you are within your rights to camp out in front of the Law School with your big sign. You might even get your picture on the blog if you do that!

rdkraus said...

The willingness of well-meaning people to put aside the First Amendment is scarier and more dangerous than Phelps.

Joe said...

(The Crypto Jew)
The willingness of well-meaning people to put aside the First Amendment is scarier and more dangerous than Phelps.

I don’t see anyone “putting aside” the Constitution. Are you saying that the First Amendment applies to INDIVDUALS, and not just to the “gub’mint?” If you are, then YOU, not me, is badly off-base as to what the First Amendment covers.

Richard Dolan said...

Strange comment by SCOTUSblog. This is the last case in which oral advocacy will make any difference. The merits briefs on all sides (certainly by the amici if not by the parties) are bound to be excellent. The SCOTUS took this case because at least 4 of them see it as a vehicle to clarify the First Amendment. The direction in which that 'clarification' is likely to trend was foretold in Citizens United -- this is not a Court that seems interested in creating new doctrine restricting the freedom of speech. It's much more likely that the justices knew what they wanted to do going in. The questions are (i) whether the facts of the case let them do it, (ii) whether whatever rule they want to craft can fit in with other concerns (federalism comes to mind, since the Fourth Circuit basically held that the First Amendment trumped state tort law here), and (iii) whether there is a fifth vote that can be persuaded to sign on.

I agree with Ann that this isn't a hard case, a conclusion that makes it more likely that the 4 justices (it may have been more) who voted to grant cert see it as a vehicle to a desired end. It would be extraordinary if anything like a slip of tongue during oral argument -- or even a particularly pathetic presentation by one side or the other -- had any impact on the outcome. It will be interesting to see how the justices who were in the minority in Citizens United (Breyer especially) and Kagan react at the oral argument. The transcript will be available by early afternoon on the SCOTUS website.

Joe said...

(The Crypto Jew)
The willingness of well-meaning people to put aside the First Amendment is scarier and more dangerous than Phelps.

I do see the Government putting aside the First Amendment, thru McCain-Feingold, or thru “Campaign Finance Reform” laws that make it almost IMPOSSIBLE for individuals to campaign for or against a idea or candidate. One Administration, and it’s irrelevant if it was a D or R one, had HUD file suit(s) against individuals who were protesting the location of half-way houses in their neighborhoods. I believe they argued it was hate speech or the like….SURE, all these things are a threat to your right to speak, but telling Phelps to move on down the sidewalk, is not…and suing Fred Phelps in civil court is NOT setting aside the First Amendment, it’s attaching consequences to actions. Yeah be careful what you say or do, because I might sue you. Oh well, and that’s not a threat to your right to speak, and how can anyone complain of it, as such…your right to speak doesn’t trump any of MY PERSONAL rights, property or quiet enjoyment of my property. In short, the First Amendment doesn’t give Fred Phelps extra-special rights that trump other people’s rights. It merely limits the ability of the government to silence its opponents.

ricpic said...

Can the Supreme Court abridge the freedom of speech when the Constitution stipulates that Congress can't?

Hagar said...

MadisonMan,

I do not know that I am free to camp out in front of the Law School with or without my sign if the Campus cops tell me to move.

And from the pictures I have seen, the Phelps crowd has not been "camping out" across the street with their signs, but has been getting up close and personal with the folks attending these funerals. The intent may be to publicize their view, but they have no right to infringe on the rights of the bereaved for that purpose. Their behavior have been similar to my following the Professor around on her heels and using a bullhorn in addition to my big sign. It is inded harassment and stalking of their fellow citizens and clearly inadmissible.

Wv: fouckeem - TexMex imprecation?

peter hoh said...

I don't know if a family could seek a restraining order against the Westboro Baptist Church prior to a funeral, but this might be an avenue to explore.

The Phelps clan is effective at playing the system. They sit down with local authorities before they protest, clearly outlining what they intend to do. They know the local ordinances. They know how far they can push. They demand police protection and usually get it.

They have made quite a bit of money by suing local authorities who breach their right to protest.

Here's an example from Nebraska.

Alex said...

In my perfect America, Fred Phelps would have been thrown in prison a long time ago to rot. Along with the flag burners and other miscreant hippies.

Salamandyr said...

Crypto Joe,

I'm not really sure I buy your argument. I'm not sure how your right to respond to someone else's speech includes the right to sue. Tort isn't an individual response, it's a cry for the government to come in and enforce your claim against someone else. So, you are advocating the government allow ad hoc censorship, putting a price tag on what it is allowable to say.

You are perfectly free to protest the Westboro church in the same fashion they protest military funerals; I'm not sure you have the right to sue someone into the poor house because they say something you don't like. One is an individual response, the other is individual+a government taking sides.

Almost Ali said...

Long Shot: It appears this case may turn based on state's rights, wherein funerals are considered off limits - and specifically, protected against targeted harassment.

Radioactive: There's also the issue of what constitutes a "religion" since the church in question operates under IRS tax-exempt status (Sec. 501c3) - when in reality Westboro Baptist Church is political.

Meanwhile, it will be interesting to see how SCOTUS rehabilitates the lower court on this issue.

edutcher said...

ricpic said...

Can the Supreme Court abridge the freedom of speech when the Constitution stipulates that Congress can't?

You broke the code.

Joe said...

(The Crypto Jew)
You are perfectly free to protest the Westboro church in the same fashion they protest military funerals; I'm not sure you have the right to sue someone into the poor house because they say something you don't like. One is an individual response, the other is individual+a government taking sides.

Since we don’t have “private justice” ANY use of the tort system involves the gub’mint…I have the right to sue you into the poor house if you damage me, your “right” to speak” doesn’t trump any of my rights. The fact I use the government –provided court system is irrelevant. It’s the ONLY court system I have, until Lew Rockwell and the Rothbardian Anarcho-Capitalist Revolution occurs.

Joe said...

(The Crypto Jew)
I would disagree with Alex, I think you DO have a right to burn a flag, a US flag...as long as you bought it.

You can't just roll up on the court house and burn that flag, because it's not YOURS, it's ALL OF OURS, but if you bought it and you want to burn it on the court house steps, feel free. That's "political speech" and covered byt he First.

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

deleted for superfluous swearing and a host of other shat.

Gawd.

buster said...

The issue here isn't whether the First Amendment protects Phelps's right to protest the "immorality" of American culture -- of course it does. Rather the issue is whether Phelps can make his protest in a manner calculated to disrupt a funeral and exacerbate the suffering of the mourners.

To be liable for the intentional infliction of emotional distress, it is not enough for Phelps to deliberately inflict emotional distress on the plaintiffs. He must also inflict the distress by means of conduct that the jury finds "outrageous," i.e., conduct that violates basic standards of decency and civilized behavior. Apparently the jury found that disrupting a funeral in order to make a political point was outrageous.

If the Supreme Court upholds the jury's verdict, Phelps is still to protest as much as he wants. But he will be forced to observe elementary standards of decency when he does.

I think the useful analogy here is legal restrictions on anti-abortion protests conducted near abortion clinics. The First Amendment protects the right to protest loudly and publicly. But the protection doesn't extend to accosting women entering the clinic to have an abortion. That sort of conduct is just indecent, no matter how immoral abortion is. The same for Phelps's protest against immorality.

buster said...

I see that ryanrocks181 has already made my point.

Anne said...

I don't know if anyone has mentioned that this group is not the only ones protesting at funerals of dead soldiers. The lefties have been doing it for years, and it has pretty much gone unreported; and their attacks have been even more cruel with taunting that the dead soldier died in vain. But here is a Christian group doing the exact same thing and we get a Supreme Court case out of it. So the lefties can protest and cause disturbances, but the right cannot? The Supreme Court needs to apply the Constitution equally and stop letting groups like the New Black Panthers get away with all kinds of crimes, while tarring and feathering the right. Another thing to consider, the whole "freedom from religion movement" would have no basis for litigation against civic displays of religion if this case goes against a strict reading of the Constitution.

traditionalguy said...

We are continuously demanding to see and hear "Moderate Muslims" condemn the acts by the Soldiers of Allah and Bin Laden's boys. There should also be a demand made of Christian churches to denounce the Fred Phelps cult. Get in the game guys.

Joe said...

(The Crypto Jew)
Oh and Freder this is from Andy McCarty, noted Fascist and it puts the BLAME SQUARELY ON OBAMA AND HOLDER:
We are continuously demanding to see and hear "Moderate Muslims" condemn the acts by the Soldiers of Allah and Bin Laden's boys. There should also be a demand made of Christian churches to denounce the Fred Phelps cult. Get in the game guys.


If this is isn’t sarcasm, dood/doodette you are sooooo late……

Geoff said...

Why is this a difficult case? I must admit that I am unfamiliar with the details of the case, but from what I understand, there is no state action, so the First Amendment does not apply. "Dr." Laura was derided as a legal ignoramus when she invoked the First Amendment in a private context. Isn't this case analogous?

Kirk Parker said...

Anne,

I think you left off the scare-quotes around "Christian".

Kirk Parker said...

"She's coming in from the other end of the God spectrum"

Really? I think they're both coming from the same end: the misusing-God-in-politics-and-society end.

A.W. said...

on the clapping story, are you sure the galley was not applauding the fact that no atheist can be elected?

as far as predicting what the court will do...?

if it comes down to kennedy, he cares primarily about the court as an institution. he will only be as activist as he can get away without harming the court's reputation. i think you can say that if they can't create a reasonable zone of respect around a person's funeral, that there is a real chance that the american people will actually amend the constitution to make it possible. and i think that would be bad in kennedy's eyes.

i think for me, i think of it more like the moment of silence cases. imagine if a teacher said, "okay everyone have a moment of silence." But then one kid starts singing really loudly. the teacher would be allowed to punish that kid into silence.

likewise, if you are at a graduation ceremony and someone disrupts the moment of silence to solemnize the even, again you can eject that person for being loud.

standing at the side of a grave, whoever has died, whether it is a hero or a villian, this is a moment of appropriate solemnity. so a reasonable cordion can and should be created.

but using an intentional infliction tort seems to be the wrong way to do it, because then there are no real standards.

And look, just be certain that the people most likely to be burning in hell are the phelps crowd, certainly not one of our fallen heroes.

Bob From Ohio said...

"Do you think the government should be involved in awarding money to private citizens who are disturbed by the speech of other private citizens?"

The scary government involvement is letting the courts be open to redress a harm.

One citizen seeking redress aginst another citizen. That is all. Something done every day in the US.

If the courts will not allow controlled legal proceedings to stop this giant con scheme, then the alternative is violence. Not that I would be opposed to someone being violent against this evil clan, but "rule of law" is something I though the courts favored?

Cedarford said...

There is some truth to the notion that the people at funerals - the Phelps only target law-abiding white families - could end this if they were not docile pussies listening to authorities.

This is part of the odd accomodation we have made with public law - free speech rights as long as they do not give rise to "fighting words" and breach of peace ensues, even lethal riot - where the blame by law goes on the parties that provoked the deadly riot or massive public disturbance. Supreme Court (1942)"fighting words" decision.

Had the people at a funeral "lost it" and beat the Phelps people up, overwhelming the cops...with the Phelps caravan fleeing back to Kansas as their cars that were not burned were pelted with rocks? That would have led to the Phelps people charged with starting a riot.

That is why the Phelps people do not target families of dead soldiers in inner cities.

The perversity of the accomodation is that free speech extends only to the point public riot does not occur over fighting words. You act like a forebearing pussy, then your verbal assaulter is enabled to freely continue their assault.

If I walk up to Madison Man and wife in a public place and say his wife is a child-molesting whore, he hits me, I AM THE ONE IN BREACH OF PEACE. If I say it and Madison Man is a pussy and then tries to use law to shut down my free speech - since my fighting words did not lead to breach of peace or riot, clearly they must not be fighting words. So I can sue for violation of 1st Amendment Rights and collect money from Madison Man, and are free to call his wife a child-molesting whore next time I see them.

It goes past the Phelps creatures. Gays in California felt safe harassing Mormons over Prop 8, but none of the activist gays risked riot and breach of peace charges by showing up in a hard black or Latin neighborhood desacrating their churches.

Lesson learned - The everyday law and courts due process is not the way to deal with the Phelps creatures. Violently asserting societal norms that the "authorities" have no choice but to respect to avoid injury and societal loss of peace by triggering the "fighting words" exception to the 1st - is.

Peter said...

I would be happy to see the Court overturn the decision if they would also reinstate the "fighting words" concept.

The Phelps Klan has a perfect right be be total assholes at funerals. Last time I checked the written words of the Constitution, though, it said nothing about the Phelps Klan having the only set of rights in the entire country.

When you lawyer types agree that fighting words still apply, these lawsuits will no longer be needed.

What about the rights of families to bury their dead? Not in the Constitution? Of course not. If that sort of thing had been tried, back in those days, the Phelps Klan would have been horsewhipped or tarred and feathered. I would love to see the Supremes overturn this awars but then delcare that the antics of the Phelps Klan are fighting words and that anyone disrupting a funeral may get a hiney kicking, free of judges, lawyers and other assorted damned fools.

New "Hussein" Ham said...

""I'll use the power of eminent domain to stop the mosque. . . ."

He didnt' stay "stop the mosque from being built."

He said: "Stop the mosque."

I sincerely hope it is his plan to let our Saudi enemies waste their money building it before we take it and tear it down ... by legally taking that land and putting it to a better, more productive use in society (see Supreme Court permission to do precisely that in Kelo.)

Our Constitution does not require us to allow our enemies to build encampment and recruitment centers within our borders. And that is precisely what this Islamic center would be - an enemy encampment.

Our laws cannot be used to subvert the very foundation upon which our laws are built.

That mosque may be built ... but it can be fucking unbuilt too.

Legally.

And that's precisely what would happen.

New "Hussein" Ham said...

"I'd gladly go to jail to pummel these miscreants if they came anywhere near a funeral I attended."

I've got no problem with that, Garage.

Because that would be YOU preventing their speech ... rather than the government doing it.

Nowhere in the Constitution does it prevent private citizens from acting together to squelch speech.

The government,in all of its forms, however may not do so.

New "Hussein" Ham said...

"Can the Supreme Court abridge the freedom of speech when the Constitution stipulates that Congress can't?"

Not as long as we are a nation of laws ... and not of men.

peter hoh said...

Cedarford, you are correct about the kinds of people/events that the Phelps clan targets.

A pastor friend, who has contacts in the Minneapolis PD, and whose church was a possible target of the Phelps, told me some of what went on in the month before the proposed protest.

One of the Phelps kids with a law degree shows up in advance to negotiate with the police. The Phelps' bargaining chip? The explicit threat of a lawsuit if they don't get the kind of police protection they want.

New "Hussein" Ham said...

"... his is part of the odd accomodation we have made with public law - free speech rights as long as they do not give rise to "fighting words.'"

Isn't the fact that nobody has thrown any punches at the Phelp's protesters pretty good evidence that no fighting words have been uttered?

Their speech is distasteful and their venues disruptive, but it's not fighting words.

New "Hussein" Ham said...

Here's some fighting words: "Homosexuals should be stoned to death."

Those are "fighting words" uttered in every Mosque in the United States of America every Friday.

peter hoh said...

Isn't the fact that nobody has thrown any punches at the Phelp's protesters pretty good evidence that no fighting words have been uttered?

No, it's good evidence that they have blackmailed the local police into providing extensive protection for them.

New "Hussein" Ham said...

"No, it's good evidence that they have blackmailed the local police into providing extensive protection for them."

To protect, and serve.

I think I read that somewhere. Oh yeah, it's on every police car.

Look Peter, I realize you want to create a political climate where you can demonize speech you dislike and then have that speech outlawed as hate speech, but I'm willing to bet that the Supreme Court isn't going to let you do that.

If it does, I guarantee you the result will be bloody and violent.

You won't get your way ... either way. You're fighting a battle you can ONLY lose.

New "Hussein" Ham said...

Peter ... here's a question for you:

Muslims believe that homosexuals should be killed.

They say so in every Mosque in the United States. Ask any imam and every one of them will say the same thing. Anti-homosexuality is at the very heart of the Muslim religion. It is one of the acts for which death is the penalty in virtually every part of the world where Islam is practiced except the United States.

Is the very religion of Islam an act of hate speech?

Robert Cook said...

"Muslim terrorists bent on instituting Sharia law in the United States are watching closely."

Muslim terrorists have no intention of instituting Sharia Law in the United States. They have no intention or delusions of trying to conquer the United States. They have no intentions at all regarding the United States except trying to expel us from their lands and exacting revenge for and arresting what they consider to be our interference in their affairs.

Robert Cook said...

"Should I be able to 'protest' on the street across from a nursery school for 'mentally challenged' little children with signs attributing 'little retards' as 'God's' punishment for whatever... fags, Fox News, or Keith Olbermann?

"...have 'civil rights' eroded if I am arrested, jailed, and fined?

"The answer to both questions is no."


No, the answers to these questions is yes.

Free speech is not guaranteed to only those people whose message we find agreeable, or only to those people who exercise what we consider to be appropriate self-restraint as regards the nature of or venue for their speech, (assuming their venue is in the public commons).

Robert Cook said...

"They go to military funerals because they know they will be safe; there will be a modicum of respect for them there...."

No, they go to military funerals because they are seeking publicity for their protests. They are shrewd enough to know they will receive attention at such events, even as they are nutty enough to assume this scrutiny is somehow good for whatever they believe their cause to be.

"PS Disagree with Salamandyr on flag burning. It's got nothing to do with free speech...."

On the contrary, it's got everything to do with free speech, and is rightly permitted.

New "Hussein" Ham said...

"They have no intentions at all regarding the United States except trying to expel us from their lands and exacting revenge ..."

I'm all for them trying to exact revenge because - from the looks of it - they're getting their fucking asses handed to them by the United States military.

Maybe they should get out of the revenge bidness. Don't seem too profitable.

peter hoh said...

Newham: Look Peter, I realize you want to create a political climate where you can demonize speech you dislike and then have that speech outlawed as hate speech, but I'm willing to bet that the Supreme Court isn't going to let you do that.

From where do you draw this conclusion?

New "Hussein" Ham said...

"... except trying to expel us from their lands ..."

Really? Islam owns the land?

Where exactly is that written?

When did Islam take title to these land?

I have news for you Bob: land is owned by whoever takes it and holds it. They should remember that in Mecca and in Medina.

Robert Cook said...

"...suing Fred Phelps in civil court is NOT setting aside the First Amendment... Yeah be careful what you say or do, because I might sue you."

In other words, using the mechanism of the courts--an institution of government--to prohibit the right of others to publicly express their views is somehow not an abrogation of free speech rights?

Of course it is. If we all became hesitant of expressing our views on issues of public moment for fear of being sued, we have surrendered our free speech to our fear. Such a fear would be well-founded, given that merely defending oneself against a lawsuit--regardless of outcome--can be financially ruinous.

Joe said...

(The Crypto Jew)
Muslim terrorists have no intention of instituting Sharia Law in the United States. They have no intention or delusions of trying to conquer the United States.



Funny they say they do…I believe one told Christiana Amanpore that the Flag of Islam will fly over the White House.

Joe said...

(The Crypto Jew)
Muslim In other words, using the mechanism of the courts--an institution of government--to prohibit the right of others to publicly express their views is somehow not an abrogation of free speech rights?


No it isn’t Cook, it’s me using the courts to enforce MY rights! Let’s say you slander or libel me, I am forced to either:
1) Acquiesce in the libel/slander Or
2) Use the courts, institutions of the government to collect damages!
As I said above, until the Anarcho-Capitalist Revolution occurs ALL WE HAVE ARE COURTS…..there is no private justice allowed. Wow, Cook when I sue over patent infringement am I using the institutions of the government to bankrupt someone and isn’t that the government interfering in the economy? Short answer, “No.” This is a sad and pathetic attempt to raise the spectre of the gub’mint, when no such spectre can be raised.

Robert Cook said...

"In my perfect America, Fred Phelps would have been thrown in prison a long time ago to rot. Along with the flag burners and other miscreant hippies."

So your perfect America would be a dictatorship.

Robert Cook said...

"Let’s say you slander or libel me...."

We're not talking about libel or slander. There are laws prohibiting that. We're talking about bringing suit against another because their expressed ideas and/or means of expression "hurt one's feelings" or somehow caused emotional distress.

There's no guarantee of speech only for speech that doesn't arouse or inflame one's emotions.

Robert Cook said...

"...when I sue over patent infringement...."


Also not part of what we're talking about.

Joe said...

(The Crypto Jew)
We're not talking about libel or slander. There are laws prohibiting that. We're talking about bringing suit against another because their expressed ideas and/or means of expression "hurt one's feelings" or somehow caused emotional distress.

There's no guarantee of speech only for speech that doesn't arouse or inflame one's emotions.



You DO Grasp that the First Amendment applies ONLY to government action, right? And SPECIFICALLY, Prior Restraint, by the gub’mint…it doesn’t cover INDIVIDUALS acting within the civil court system…and you know that Tom Metzger and the Alabama Klan all got sued for things they said, and the consequences of that speech, IN CIVIL COURT and were bankrupted, right?

The First Amendment does not apply to speech BETWEEN INDIVIDUALS, it applies to action by the government against individuals. This is a CIVIL ACTION, not a CRIMINAL ONE, and there is or was NO Prior Restraint, and in fact, NO GOVERNMENT INVOLVEMENT.

Cook, you are busy talking about something that has NO relationship to the First Amendment.

Joe said...

(The Crypto Jew)
Also not part of what we're talking about.


You aren’t that dense are you? When I sue, over ANYTHING, I use an institution of the government, the courts as the vehicle for my redress…so YES it is valid to discuss Phelps, slander, or patent infringement as examples of seeking CIVIL REDRESS, thru the court system…
Thank you for contributing to the discussion, though.

Robert Cook said...

The whole notion that "fighting words" can be prohibited (while somehow not injuring our free speech rights) is wrong. Yes, I know it has somehow become enshrined in law, but it's wrong even so.

Vigorous expression of free speech will inevitably lead to "fighting words." That such an exception to free speech guarantees can somehow be invented despite our founding document that guarantees free speech is testament to our facility for inventing meaning out of thin air to suit our preferences, even as we tell ourselves this invented meaning does not somehow contradict that which is explicitly stated.

The "fighting words" exception is really just the government's way of inventing its own justification for prohibiting our free speech rights, nothing less.

Robert Cook said...

"Cook, you are busy talking about something that has NO relationship to the First Amendment."

It has everything to do with our free speech rights.

That we have erected a legal edifice over two centuries that effectively voids much, if not most or all of our Constitution is also not in dispute.

Joe said...

(The Crypto Jew)
The "fighting words" exception is really just the government's way of inventing its own justification for prohibiting our free speech rights, nothing less..


Actually a way to justify me beating some @rse who called me a “C*ck-S^cking Homo” and my Life Partner, Windy-@rsed old Queen. You can say, it, but you might get beaten, and generally, juries wanted to let folks go who got confronted with such crudity…not so much gub’mint at all, Cook.

Joe said...

(The Crypto Jew)
It has everything to do with our free speech rights.


The First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Funny I see NO reference to individuals and CIVIL actions….your copy must vary from MY copy.

Tim said...

The right to free speech does not guarantee the right to an audience. Should I have the right to shout loudly in the lobby of a theater that Avatar is the work of the devil? If you answer no,then Phelps has no right to disturb funeral goers.
Do I have a right to play loud music late at night? If not,then why should Phelps be allowed to scream loudly near a funeral?
YOUR RIGHTS STOP AT MY NOSE.
If athiests want representation in Congress, then CONVINCE a majority in a district to vote for you. Otherwise, you are out of luck. Constitutional rights include freedom of religion, and even freedom of no religion, but they do NOT guarantee from religion, unless it becomes obnoxious (meaning the 7th Dayers can't stand on your porch and yell at you if you shut the door on them. Which they won't anyway, at least in my experience) But they can come around knocking, unless you have a sign up.

A.W. said...

btw, here is a report on the argument itself.

http://www.mcclatchydc.com/2010/10/06/101689/supreme-court-divided-about-protecting.html

Robert Cook said...

"Should I have the right to shout loudly in the lobby of a theater that Avatar is the work of the devil?

"Do I have a right to play loud music late at night?"


As with Joe's inability to recognize that suing for libel, slander, or patent infringement has nothing to do with suing for "fighting words," and therefore is distinct from free speech, shouting or making loud noises to disturb others in places where they have an expectation of privacy is also not a free speech issue. Free speech has to do with our freedom to express our ideas and beliefs in the public commons without fear of government interference. An auditorium where a paying audience is watching live or projected entertainment, or a residence are neither one part of the public commons, and shouting--whatever the words--or playing loud music simply to disturb the ability of someone to sleep or to enjoy an peformance, is not an expression of free speech but is simply disturbing the peace.

If Phelps and crew are following funeral parties to their gravesites to make their protests, I can see legitimate reasons to prohibit them; if they restrict their protests to outside the entrances to the cemeteries, their free speech should be protected. If you want to stand outside a theater and shout your protests about AVATAR, your free speech should be unimpeded, (as long as you're not on the theater's private property). If you want to play loud music in your sound-proofed apartment, such that other residents of the building are not disturbed, you have that right. Persons who reside with you may be disturbed, but they have the freedom to leave or to try to convince or compel you to turn off or turn down the music.

madawaskan said...

Thanks for the link A.W.

from the article:

One sign, according to a legal brief, included "a picture of two males performing anal sexual intercourse."

I don't think that fits the it's purely "free speech" argument.

Synova said...

How is intentional infliction of emotional distress a first amendment issue?

Essentially what Maggie, bless her, is arguing is that no one, EVER, can be held accountable for deliberately abusive language or infliction of distress directed at an individual.

How, for example, does this relate to ANY sort of sexual or racial harassment policies? How does it relate to lying to someone in order to hurt them? How does it relate, for a current example, to the sort of "prank" that led to student's suicide?

We'd say something about an invasion of privacy, perhaps.

And why doesn't that apply to a funeral?

The Phelpses are not prevented from speaking or holding demonstrations or anything else they want to do to get their message out. They aren't being silenced in any way whatsoever.

But if the courts don't act in a way to protect grieving *individuals* from the purposeful infliction of harm, then the courts and the government have forfeited their prerogative to dispense justice in the interest of public order.

Someone WILL start to take things into their own hands.

Maybe it will be a grieving parent who feels they have nothing else to lose.

Synova said...

"Do you think the government should be involved in awarding money to private citizens who are disturbed by the speech of other private citizens?"

Two words.

Sexual harassment.

Synova said...

Pornography is a free speech issue.

Someone posting pictures of *you* naked is not.

peter hoh said...

Largely in response to the notoriety given the Westboro Baptist Church protests, many states have enacted laws restricting funeral protests, and 48 states joined in an amicus brief supporting Snyder's cause.

Which two states did not file amicus briefs in support of the plaintiff?

madawaskan said...

So in public you can display pornography-that's free speech?

I'm thinking-not.

madawaskan said...

peter hoh-
Do you want the Obama answer?

Because then I think your math would be wrong.

Richard Dolan said...

The transcript of the oral argument is now posted on the SCOTUS website.

The argument by the dead Marine's father drew the line at "epithets targeted at a private individual" which, he claimed, were not protected by the First Amendment. Some justices, especially Ginsburg, had trouble with that. Several wanted to pursue whether the First Amendment protected "public comment" on issues of general importance, regardless of whether it was directed at a private individual or a public figure. There were several comparisons between what the Westboro Church was saying here and the protest language that was common during the Vietnam era. And there was some back-and-forth about whether this case involved just offensive speech or disruption of a funeral, But the disruption idea seemed to drop out when it became clear that the plaintiff-father had not seen the signs until after the funeral when he saw them on a TV report about the protest.

The argument for the Westboro Church focused on the traditional constitutional protection afforded religious commentary on issues of national importance. Westboro claimed that the father was not a private figure because he had taken steps to make the funeral more than just a private event -- there were flags outside the church, signs about God Bless America, etc. The idea was that, if the funeral was in part a (public) celebration of civic virtues, it invited commentary of a different viewpoint. Nothing other than the viewpoint expressed in that dissenting commentary supported the tort claim, and thus it had to fail.

Several justices wanted to know where the line should be drawn between protected commentary and actionable offensive conduct where the conduct is mostly words. Scalia raised the 'fighting words' exception, but none of the other justices seemed interested and Westboro's lawyer had a pretty convincing explanation as to why it doesn't apply.

Based on the argument, I'd expect the judgment to be affirmed but perhaps on narrower grounds than the Fourth Circuit invoked. Too many judges were concerned about line drawing in an area where they plainly want to find a way for the First Amendment to continue to coexist with state defamation and privacy laws.

Synova said...

I think that the "men performing anal and oral sex" signs were sort of stick figures, but explicit.

Are there no ordinances about public decency that don't violate free speech? None?

Some kid is going to her daddy's funeral and she gets to see butt-fucking stick men on a sign? Or "your daddy deserved to die and he's going to HELL."

And her "distress" doesn't mean anything?

Just bring out the guns now. We're lost.

madawaskan said...

peter-

Here is a link to that particular brief filed by Kansas, the District of Columbia and 47 other states.

brief

I'm looking at it now to figure out which two states are missing.

Synova said...

"Too many judges were concerned about line drawing in an area where they plainly want to find a way for the First Amendment to continue to coexist with state defamation and privacy laws."

Privacy, hate speech, university speech codes, sexual or racial harassment, NAMBLA taking out full frontal billboard ads...

We CAN go on...

peter hoh said...

Maine

peter hoh said...

and Virginia.

madawaskan said...

Yep.

You can imagine I searched for erh, Maine several times.

madawaskan said...

Now why...

btw-there's more than one way to skin a cat.

political pressure is one of them.

peter hoh said...

I guess neither AG is up for reelection.

VA AG sides with free speech.

Maine attorney general Janet Mills, who has also chosen not to join the friend of the court brief, provided a statement arguing that the First Amendment "does not allow us to distinguish between polite speech and hateful or outrageous speech." The attorneys general from every other state and the District of Columbia have joined the brief.

peter hoh said...

By the way, the Virginia AG is a Republican, the Maine AG is a Democrat.

madawaskan said...

Ya I already va cherched that.

peter-

How would you get around this thing?

Right now you "invite" the right people to the funeral and they do "counter-protests" the whole thing turns into a circus and causes a lot of extra work for a lot of people-especially because they have to jump through hoops to keep it all 'legal".

[See "the patriot riders".]

Damn thing turns into a three ring circus.

Now most people have the common decency to get out of the way of funeral processions. I wonder if you could at least force these people to protest at a distance for "safety" or other reasons making the state laws about something else other than free speech.


Ya I get that it's weaselish.

madawaskan said...

Well shoot I should have followed the link within the link.

The Virginia AG is essentially saying they have themselves covered with this law-

http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-415

and can arrest them.

Synova said...

The Bible says that followers of Christ will be persecuted and hated.

The Phelpses error is in viewing hatred as proof that they are doing the work of God. Well, anyone can get hated if they are vile enough... doesn't make them godly, it just makes them vile.

It does mean that normal social pressure and censure is useless.

But maybe someone should be concerned about the violence this group with it's family packed full of professional lawyers is doing to the justice system in this country.

I think we agree that they aren't *Christian*. Does anyone dispute the lawyer part?

Cedarford said...

New "Hussein" Ham - "Isn't the fact that nobody has thrown any punches at the Phelp's protesters pretty good evidence that no fighting words have been uttered?

Their speech is distasteful and their venues disruptive, but it's not fighting words."

===========
You just proved my point. The law will only protect people from vile speech if they are ready to beat the offenders to a pulp under "fighting words" exception to the 1st.
It is perverse, but to control the situation, the victims of the Phelps Clan have to be willing to break the law and not be simpering pussies to trigger "fighting words". That currently bars the Phelps Clan from holding protests in rough black or hispanic neighborhoods - everyone would anticipate the all-white Phelps crew would trigger a race riot and people would be seriously hurt. So no permits granted...

The Phelps nonsense would have ended long ago if the 1st grieving family had taken baseball bats to the Phelpses, or fired shots on them as they travelled into town.Or a biker group had kicked their asses. Leaving the aftermath to trusting in jury nullification.

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

"The Phelps nonsense would have ended long ago if the 1st grieving family had taken baseball bats to the Phelpses, or fired shots on them as they travelled into town.Or a biker group had kicked their asses. Leaving the aftermath to trusting in jury nullification."

This is the best solution to the problem.

Synova said...

We've been conditioned to reflexively and automatically shun taking the law into our own hands. And that's fine... if the State upholds their side of the bargain.

And you know, it's really not criminalizing all offensive speech.

The fighting words thing is a good point, even though we have been conditioned to hold back there as well.

But there is a world of difference between a guy maligning women and a guy maligning your wife. Just like there is a difference between nudie pictures and a guy exposing himself to your kid.

New "Hussein" Ham said...

"The Phelps nonsense would have ended long ago if the 1st grieving family had taken baseball bats to the Phelpses ..."

That's right. We don't need the government to do anything. Because we can do it ourselves.

The government is powerless to stop Fred Phelps' speech at any rate, or anyone else's speech. It is prohibited by the Constitution from inhibiting free speech.

We, The People, are not so prohibited. If Phelps showed up at my dead son's funeral I'd fucking beat him to a pulp and not ask the government to do anything - even if that meant arrest.

I'm willing to go to jail for the relatively short period of time that I'd be sentenced to for that principle. Doubt I'd get any jail time, really, but I'd do it.

Be a piece of cake and I'd be a hero, with my own CNN show ... just like Larry Spitzer.

holdfast said...

Somewhere above someone, I think Cook the Senile, said "We're not talking about libel or slander. There are laws prohibiting that."

Not being a US-trained attorney, I am curious as to what these laws are and where they reside? I had always thought those to be private common law torts (you can't go to jail for slander, can you?), like "intentional infliction of emotional distress" (though I learned it as "intentional infliction of nervous shock"). I am curious how allowing the courts (organs of the state that they are) to rule on slander and libel cases is different from allowing the present suit (assuming the alleged harm can be proven) for purposes of the First Amendment?

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

Gary Rosen said...

Noted that C-fudd calls the mourners at these funerals "pussies". Is he a friend of the WBC? The grieving families weren't even Joooish!

Suburbanbanshee said...

Re: Margie Phelps --

A lot of the Phelpses are lawyers. They refuse to let anybody but a Phelps represent them, so of course they refuse to have somebody else argue for them before the Supreme Court.

Tim said...

To RobertCook.
But that is what the Phelps are doing. They get as close as possible while remaining on public land, then use amplifiers and speakers to get loud enough to disturb the ceremony.

And THAT is what I have an issue with. It is NOT thier audience, and they have no right to force themselves on it. The funeral goers are bound to a physical location. The Phelps are not. If they want to protest, go downtown and protest away. But I DO NOT believe the right to free speech should be near as absolute as you are trying to make it out to be.

ampersand said...

If Phelps can be shut down ... then anyone critical of Islamists can be shut down if the Islamists claim they are violently offended by speech critical of them and their motives
Wtf? Where have you been the past few months? Some preacher in Florida had the weight of the Federal government,including visits from FBI agents when he threatened to burn a Koran.
Mollie Norris was told to change her name and go into hiding by the FBI for drawing Mohammed!
The government is awfully subjective when it comes to free speech. Maybe someone should threaten to burn a Koran at a WBC gathering.