Where free speech gets tricky
Fred Phelps is pretty much a worthless human being that doesn't deserve the time of day, let alone support from the ACLU.
Yes, that's right. The American Civil Liberties Union has taken up the cause of the all-too-visible leader of the Westboro Baptist Church, the founder of the "God Hates Fags" website, the utter moron who has protested at funerals of servicemen saying that God is letting American troops die because of our nation's tolerance of homosexuals. First off, that tolerance is meager at best, particularly at the legal level. More to the point, I'm pretty sure somewhere in the Bible it says something about "love thy neighbor as thyself" and somewhere else, I seem to recall something about "love the sinner, hate the sin", and... well, I could go on, but I'm not here to argue against Phelps and his moronic beliefs.
What I am here to argue, or at least discuss, is how difficult this particular issue is for me, as a die-hard First Amendment advocate. At first, I was furious at the ACLU for taking on this case. But I started to wonder how a true free speech lover can isolate protests outside funerals. Of course they're despicable, but that alone can't allow us to restrict them. As Jeff wrote in a post awhile back condemning the proposed flag-burning amendment, "We can't differentiate between speech we like and speech we don't like - otherwise 'freedom of speech' becomes meaningless." He's absolutely right.
Then of course the question becomes when do we decide other people's rights are being infringed upon. Borrowing from my dad, I've often said that a person's freedom to swing their fist ends when they hit someone else's nose. Can we reasonably argue that a nose is being hit when Phelps protests? It certainly feels like the rights of the bereaved to mourn the loss of a loved one are being violated, doesn't it? But then, if we argue that, can we similarly argue against protests in any public setting? Consider a group of people protesting outside a McDonald's or something. The people who want to eat at that McDonald's have a right to grab their greasy fattening food without being harassed. I'm aware that it's ludicrous to compare a fast food outing with a funeral, but I hope my point isn't lost. Once we start restricting people's right to protest, where do we stop?
The law currently on the Missouri books seems reasonable enough: you have to give a funeral an hour buffer zone on either side without a protest. I feel like that's a fair compromise. That doesn't completely sit well with my fervent belief in free expression, but that's just how I feel about it. I'm willing to support the rights of mourners to grieve in peace, even if it means creating an extremely small crack in the pillar of free speech.
Oh, you wanna know the best thing about free speech? It allows college humor magazines to publish pictures like this, and articles like this. (I had never seen the comment at the bottom of the article before, but it's utterly hilarious.)
Song lyric of the day:
"But to face doom in a sock-stenched room all by myself
Is the kind of fate I never contemplate
Lots of people would cry though none spring to mind
Though I ought to be learning I feel like a veteran
Of 'Oh, I like your poetry but I hate your poems'"
- the Trash Can Sinatras, Obscurity Knocks
Yes, that's right. The American Civil Liberties Union has taken up the cause of the all-too-visible leader of the Westboro Baptist Church, the founder of the "God Hates Fags" website, the utter moron who has protested at funerals of servicemen saying that God is letting American troops die because of our nation's tolerance of homosexuals. First off, that tolerance is meager at best, particularly at the legal level. More to the point, I'm pretty sure somewhere in the Bible it says something about "love thy neighbor as thyself" and somewhere else, I seem to recall something about "love the sinner, hate the sin", and... well, I could go on, but I'm not here to argue against Phelps and his moronic beliefs.
What I am here to argue, or at least discuss, is how difficult this particular issue is for me, as a die-hard First Amendment advocate. At first, I was furious at the ACLU for taking on this case. But I started to wonder how a true free speech lover can isolate protests outside funerals. Of course they're despicable, but that alone can't allow us to restrict them. As Jeff wrote in a post awhile back condemning the proposed flag-burning amendment, "We can't differentiate between speech we like and speech we don't like - otherwise 'freedom of speech' becomes meaningless." He's absolutely right.
Then of course the question becomes when do we decide other people's rights are being infringed upon. Borrowing from my dad, I've often said that a person's freedom to swing their fist ends when they hit someone else's nose. Can we reasonably argue that a nose is being hit when Phelps protests? It certainly feels like the rights of the bereaved to mourn the loss of a loved one are being violated, doesn't it? But then, if we argue that, can we similarly argue against protests in any public setting? Consider a group of people protesting outside a McDonald's or something. The people who want to eat at that McDonald's have a right to grab their greasy fattening food without being harassed. I'm aware that it's ludicrous to compare a fast food outing with a funeral, but I hope my point isn't lost. Once we start restricting people's right to protest, where do we stop?
The law currently on the Missouri books seems reasonable enough: you have to give a funeral an hour buffer zone on either side without a protest. I feel like that's a fair compromise. That doesn't completely sit well with my fervent belief in free expression, but that's just how I feel about it. I'm willing to support the rights of mourners to grieve in peace, even if it means creating an extremely small crack in the pillar of free speech.
Oh, you wanna know the best thing about free speech? It allows college humor magazines to publish pictures like this, and articles like this. (I had never seen the comment at the bottom of the article before, but it's utterly hilarious.)
Song lyric of the day:
"But to face doom in a sock-stenched room all by myself
Is the kind of fate I never contemplate
Lots of people would cry though none spring to mind
Though I ought to be learning I feel like a veteran
Of 'Oh, I like your poetry but I hate your poems'"
- the Trash Can Sinatras, Obscurity Knocks
8 Comments:
I'd have to look at the law, but judging from your description I think it could pass constitutional muster.
Before I get to that part, though.....I don't like the analogy to my right to swing my fist ending with your face. If a protestor has the right to wear a shirt that says "Fuck the Draft" in a courtroom, no matter how many people that may upset......if a porn magazine has the right to print truly vicious satire against a minister (admittedly a minister who is an asshole himself), undoubtedly causing deep distress to said minister.......if a dissident is allowed to burn the flag, no matter how many servicemen are wounded to their soul by such a gesture.....then, dammit, yes a so-called minister has just as much a right to say terrible, hurtful things to people who are mourning. All those examples I cited are Supreme Court cases. They all involved attempts to prevent people from saying things that caused their hearers great emotional distress. And in each case, the Supreme Court protected the speech under the First Amendment. It ain't pretty - in fact it's downright vicious and ugly sometimes - but it's free speech. Your right to speak is NOT limited by my right to not be upset.
[Actually, like a lawyer, I do have to qualify that statement. There is a tort for Intentional Infliction of Emotional Distress for truly outrageous behavior that inflicts severe distress on people. Say, if someone falsely tells a little old lady that her husband was raped and murdered, and she is in such shock that she never sleeps a sound night again....that would qualify. But the Hustler v. Falwell case tells us that such a tort is not an option for public figures. Even the IIED tort falls before the First Amendment for public figures. But maybe some of Phelps's victims could sue him.]
Anyways, so why do I say that this law would probably survive a First Amendment challenge (at least based on your description of it)? Because it seems to be a content-neutral "time, manner, place" restriction. Such restrictions (i.e. requiring permits for parades) are allowed as long as they do not base the regulation on the content of the speech. So if the "anti-Phelps" law would apply equally to demonstrations in support of our troops, then I think it doesn't transgress the First Amendment, legally speaking. On the other hand, if it's only aimed at the kind of hurtful stuff Phelps does....yeah, it's a clear violation of the First Amendment.
Like I said, my dad's analogy, not mine; I just always liked it, and in fairness it's true. Once I hit your nose, that's called assault. The reason the analogy works is because, theoretically, you could attempt to claim punching someone as expression (which in fairness, it is). Like I said as I drew out the analogy, though, I'm not sure you can argue that emotional trauma qualifies as a nose. It's at least a much harder sell than passing off a nose for a nose. So in that sense, I agree with you.
The point you made from a legal standpoint was the same I was making from a logical standpoint: the law seems reasonable enough that it doesn't infringe upon free speech, but rather limits it to a time and place. And I'm okay with that. Of course, the law is blatantly attacking Phelpsian hate-mongering, and not demonstrations across the board, so I guess it likely will be struck down.
What the hell was Falwell doing reading Hustler anyway? That's what I wanna know.
You have to remember I'm approaching this from the perspective of someone who attended his father's funeral only 8 months ago. So naturally, I'm going to side with mourners over assholes. And yes, I am going to say that protesting outside of funerals is despicable. Not showing respect for the recently deceased is despicable.
To me, during a funeral, the land on which that funeral occurs becomes privately owned by the family of the deceased for the duration of the funeral. And people have the right to kick people off the land that they own if they don't want them there. It's the same as sending Phelps off your front lawn, which is in your right to do. Move him to the street.
It's not a black and white world, and I find this compromise reasonable. I'm okay with the courts striking it down, because I can see where the argument can be made that it violates the First Amendment, but I don't see it that way in this case.
Please don't tell me what a funeral is for. I know all too well exactly what a funeral is for. Though you are right, "interested parties" would have been the better way to go. I forget not everyone uses the same broad interpretation of "family" that I do.
And you're right, holding the funeral in a private place is an easy and preferable solution. I simply feel that a funeral should constitute a private engagement regardless of where it is being held. Is it not possible to rent public land (say, that owned by the government) for a period of time? I may be wrong about that.
Another thing that occurred to me, and probably one of the things I was really trying to get at in this post (regardless of whether I actually did or not), is that one man's freedom of speech often violates another. Let's say Fred Phelps is protesting a serviceman's funeral, and the brother of that man gets up to deliver a eulogy, but he can't be heard over Phelps' followers screaming "God hates fags!" Or for that matter, a different group screaming "Support our troops!" It doesn't matter. What I'm wondering is, whose freedom is more important? Are they of equal importance? If so, how do we arrange it so that one does not interfere with the other? Is that even our place?
have you ever had someone close to you die Barzelay? Other then a grandparent?
wow, man. Got your panties in a bunch over a simple question. I just asked. Didn't say you couldn't, shouldn't, etc. Just wanted to see where you were coming from before I made a comment. I knew you were in law, read some of your blog, etc. Other then that I don't know much about you and didn't want to assume anything. Just wanted to see if you've been through it. Everyone's different when they've been through it. Was hoping for(if you had) "yeah I've had someone close die, but my opinion wouldn't change" Thats all. You need to get a grip man. Calm down.
when your grandparents die its usually not suddenly and you can prepare for it. So its not usually a shock and don't take it as hard.
besides I usually try not to argue on a point when I have no understanding of either side. I've never had someone other then a grandparent die and I don't know much about the law other then the basics. So my opinion wouldn't be worth shit. I see where mike is coming from, I see where Ben is coming from. I know nothing about you and would pay more attention to your comments knowing some background on you. Knowing what I do know now I can look aback and respect what you said more. Seeing as how you've been on both sides.
It's my understanding that most cemeteries are privately owned, so I think that the cemetery owners are well within their rights to stop Phelps from protesting on the grounds of the cemetery. Off the grounds? Well, free speech can be a bitch sometimes. With these cases you often have to take it to its extreme - if a KKK funeral, complete with white hoods and burning crosses, were occurring, would you want the right to protest it? If so, you have to allow Phelps' protests - you can't have selective free speech.
On a different note, I don't know what Missouri was thinking by prosecuting this guy. Let me say it now so everyone understands:
FRED PHELPS IS A CHEAP ATTENTION WHORE. He's Kansas' Kim Jong-Il. Giving him a lawsuit gets him news coverage, which only encourages him. As tough as it certainly is on the families whose solemn gatherings he's disrupting, it's really best to ignore him. Think of him as the chicken pox; leave him alone, and he'll go away. Scratch him, and he'll get worse.
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