First amendment mavens, what do you think about this case?

[pegkerr]

The father of a fallen Marine has won a multi-million dollar settlement against Fred Phelps and the Westboro church.

Yes, we all agree that the Westboro church is perfectly odious. Is their hateful picketing at funerals free speech?

I have always had tremendous respect for Becky Lourey, the former Minnesota State Senator. She was the only person to cast a dissenting vote when the State of Minnesota voted on H.F. 2985, making it unlawful to voice protest at funerals:

"As Americans, we stand proudly for freedom of expression; the right is unconditional. The behavior of Fred Phelps’ followers is indefensible. We must not give their actions the power to take away our rights. Our country was built on a foundation of constitutional rights – and one of the most important is the freedom of speech. I will never compromise my convictions for political expediency. I will always stand for freedom.

"The hardest time to stand for freedom is in the face of overwhelming sentiment. This is when the defense of freedom is most important. I will never back down from a vote of conscience. We appear to be losing our ability to respect differences of opinion or have a civil dialogue. Legislating respectful behavior is not likely to help. In fact, more likely it will hurt."

What made Ms. Lourey's vote all the more remarkable was that she lost her own son, Matt Lourey, when his helicopter crashed in Iraq. See here.

Comments

[post-ecdysis.livejournal.com]

It seems to me that there are two conflicting First Amendment rights: those of the Westboro church to peaceably assemble, and those of the soldier's families to practice their religion through the solemn sacrament of burial. In that spirit, I am not particularly alarmed that state legislatures have determined that disrupting a funeral is not "peaceable".

Perhaps I should clarify that I believe that "freedom of speech" means that you have the right to publicly assert your view on a matter, not that you have the right to disrupt people around you such that they are forced to pay attention to what you are saying. But I'm also not confident that the civil court system is the right place to clarify these issues.

[dd-b.livejournal.com]

The 1st amendment is about government restraint of speech. As such, something like H.F. 2985 might be held to violate it. But I don't think it actually immunizes people against the civil consequences of their speech; certainly the 1st Amendment is not a protection against libel or slander (verbal speech in a public enough context can be libel).

I suspect the case might have gone a different way if they hadn't chosen a death completely unrelated to their position to protest; some kind of protest relevant to a politician's actions in office might well be protected speech at that politician's funeral, even if in bad taste.

[haddayr.livejournal.com]

This is exactly what I was going to say; I was so proud of Becky Lourey who was the only one to do the right thing, and of course forbidding this by law is trampling first amendment rights.

However, as Mark says, a first amendment right to say what you want and not be jailed does not equal the right to not face the consequences of what you say and how you say it.

[folk.livejournal.com]

Mmm. I rather concur with this. Blah blah Voltaire blah blah respect your right to say what you want, but we have slander and libel laws for a reason. In the UK, our libel and slander laws are interestingly skewed further towards the right of the libelee or slanderee than the US' similar laws -- which is why nobody here was allowed to say that it was Viscount Linley who's been knobgobbling with his aides. Allegedly.*

*of course, appending an "allegedly" to the end of most any statement makes it unactionable. Allegedly.

[joel-rosenberg.livejournal.com]

Sure. But don't get too smug about your laws; it allowed the despicable David Irving to take Lipstadt to court because she told the truth about him, and if she hadn't had major support, the defense would have bankrupted her, even though she won.

[joel-rosenberg.livejournal.com]

But it isn't slander -- in any legal sense -- to say that "God hates fags." Assuming that you get can get the diety into court in the first place to query Him on the issue -- and it's only defamatory (I'm not sure who) if it's untrue; you've got to determine if it is true -- what're you going to ask Her to do? Put a hand/flipper/tentacle on a Bible and say, "I promise to tell the truth. So help Me, Me" and then have Her say, "Well, no, I like gays, small sticks of wood, and cigarettes"?

It's obviously an opinion (and, given that, as Sam Clemens argued, the best evidence is that God is a malign thug, perhaps more of a comment on the deity than on gay people), and opinions aren't defamatory.

The Phelpses have, so far, been very clever about voicing their loathsome opinions in public space; regulating hateful speech qua hateful speech in the public square is another step down a very slippery slope that we've already slid too far down as it is.

[dd-b.livejournal.com]

I agree that what they're doing doesn't look like slander or libel. However, it *does* rather look like intentional infliction of emotional distress. That's a civil issue, and that's how it was handled, and they lost. I think this is an example of the jury finding their actions hateful enough that it threw the book at them.

[joel-rosenberg.livejournal.com]

Sure. Which is why, I suspect, that it's going to be overturned on appeal. (The Phelpses have really, really talented lawyering available, in-house.)

[ceilidh]

I suspect the case might have gone a different way if they hadn't chosen a death completely unrelated to their position to protest; some kind of protest relevant to a politician's actions in office might well be protected speech at that politician's funeral, even if in bad taste.

Agreed.

[knitmeapony.livejournal.com]

I love how many thoughtful people you have on your journal.

Perhaps I should clarify that I believe that "freedom of speech" means that you have the right to publicly assert your view on a matter, not that you have the right to disrupt people around you such that they are forced to pay attention to what you are saying.

But I don't think it actually immunizes people against the civil consequences of their speech; certainly the 1st Amendment is not a protection against libel or slander (verbal speech in a public enough context can be libel).

This, and this exactly.

Unlike post_ecdysis, I think civil court is a good way to handle these cases. The government can not suppress the speech itself, nor the rights of Westboro, as terrible as they may be.

However, take out the content of the speech, and you still have people shouting, cursing, using (tenuously, questionably) obscene speech or hate speech at a solemn ceremony against private individuals. That's harassment, that's intentional infliction of emotional distress, it may even be assault, but mostly it's a matter that can be handled between private individuals. Even the cemetery keepers themselves could get involved, I think.

There are criminal ways to handle it as well; back to that assault idea, back to trespassing and the like. But those I think are poorer ways to handle it because the church can call their people martyrs, and because it doesn't necessarily give redress to the victims themselves.

It's a complicated thing. Troubling when people use the letter to violate the spirit of the law.

[knitmeapony.livejournal.com]

I should note I quote both post_ecdysis and dd_b up there, one paragraph from each.

[joel-rosenberg.livejournal.com]

If the theory is that the Phelpses were disturbing the peace/disorderly conduct, they could have been charged with that, the argument being that somebody shouting something noncontroversial -- "I think apple pie is wonderful, if eaten in moderation!" -- in the same circumstances would also be a discon, and obviating the Constitutional question.

(I don't think it would fly, mind you, but . . . )

Again: their opinion is, well, nutty 'way past disgusting, but it's not defamatory. (And no, speech is not libel; speech can be slander, but the essence of libel, other than its defamatory nature, is that it's written.)

[knitmeapony.livejournal.com]

If the theory is that the Phelpses were disturbing the peace/disorderly conduct, they could have been charged with that, the argument being that somebody shouting something noncontroversial -- "I think apple pie is wonderful, if eaten in moderation!" -- in the same circumstances would also be a discon, and obviating the Constitutional question.

Not necessarily true. We've got 'fire' in a crowded theater issues, there. Shouting 'water' or 'air' or 'earth' in a crowded theater isn't going to get you charged with the same thing as 'fire'. The political nature can't be considered, but the inflammatory nature can be, I'd suggest. (And yes, I know how bad that particular metaphor is, but it's the one we've got.)

[joel-rosenberg.livejournal.com]

It might well. If you want to stand up in a crowded theater and shout "water!", you might well end up being charged with disorderly conduct; it's kind of a catch-all. And, actually, probably fits with the definition from the Minn. Stats, if I recall correctly. (It's been a while; not being a lawyer, I only study up on stuff that interests me personally or professionally, and that's only tangentially related to that.)

[barondave.livejournal.com]

"The right to be heard does not automatically include the right to be taken seriously." -- Hubert H. Humphrey

As noted by others, just because you have the absolute right to say your piece, you don't have the right to force your obnoxious behavior on everyone. The line between "peaceful protest" and "disruptive behavior" is not that thin, and getting in the face of mourners at a funeral is on the wrong side of it. The courts have to tread carefully on free speech issues, but they seem to have made a clearheaded decision in this case.

[auriaephiala.livejournal.com]

I think it's free speech, but if they disrupt someone else's gathering by making noise or blocking entrances, it can be considered harassment or being a public nuisance.

Personally, I would go after them by picketing them on their home turf.

And I have no problem if the police/bylaw officers are particularly vigilant in enforcing parking regulations near funerals.

But the principle of free speech is important -- even for jerks.

[pegkerr.livejournal.com]

Personally, I would go after them by picketing them on their home turf.

Michael Moore did exactly that, with his project "Travels of the Sodomobile." See this. It's absolutely hilarious.

[eal.livejournal.com]

I have to admit my first response to the whole thing has been, where have all these people been while they've been picketing the funerals of gays? That bit of my own neurosis aside, I agree with those above who have said that civil court is the way to go with these folks. It's not "the government" infringing on their free speech rights. It's a person who feels their speech is injurous that sued them and a jury agreed that their speech falls into those "classes."

I can't argue for banning them from speaking at all because I do think that's a 1st amendment issue, but the first amendment doesn't protect all speech -- remember, shouting "fire" in a crowded building isn't considered protected speech either.

[joel-rosenberg.livejournal.com]

I'm not familiar with the case, so I don't know what the basis for the decision actually was (I'm skeptical about brief press accounts getting anything important right) but if there are folks cheering because the despicable Phelpses were punished by a court for speech because it offended folks and hurt their feelings, it's worth considering that others may issue speech that offends folks and hurts their feelings, and that it may not always be the correct ox being gored.

[psychic-serpent.livejournal.com]

As with Flag Burning Amendments, just because I recognize someone has a right to do something (which Phelps does) doesn't mean I think it's a nice thing to do. Plenty of things that aren't nice to do are still legal and SHOULD be legal because of the slippery slope of trying to outlaw only the specific things people don't want covered by the First Amendment. However, even types of free speech like picketing funerals can bring a civil suit against you for pain and suffering.

[joel-rosenberg.livejournal.com]

In another crowd, I'd point out that the premise of punishing people in civil court for the offense that others take might be something that somebody who is in favor of protests at abortion clinics might want to think about.

Here, I'll just point out that the RNC is coming to town next year, and some of them might find it expedient to have hurt feelings, too.

[ebonypearl.livejournal.com]

Phelps said in his rebuttal to this case that he had the right to stage protests at any public gathering. What I'm wondering is when did a private funeral become a public event? Most funerals are done for the family and friends, except in the case of public figures, in which case there are generally 2 funerals - a private one for the family and friends and a larger public one.

Phelps, much as it galls me to say this, does have the right to stage his protests at public events. I will defend his right to do so no matter how much I detest his views and actions.

I don't see where he has the right to stage them at private events.

When I reserve a public park for private events, like a family reunion, then I and my family's right to assemble in the park and conduct our reunion supersedes the rights of casual visitors to the park and to people wishing to disrupt our reunion through staged protests, shouting, and the waving of offensive signs. That's not suppressing freedom of speech, it's giving the right of assembly and speech to the people who lawfully reserved the place and time for their event first.

Phelps can't stage a protest until after he knows when and where the funeral will be held - which means the people who organized the funeral have the superior claim.

This is supposing that all funerals are public events.

[http://users.livejournal.com/anam_cara_/]

Are most cemeteries considered public? I would think that specific church cemeteries would be considered private, thus off-limits for protesters if not condoned by that church. I suppose though, they are just outside of those lines, but in view.

The ugliness of it all is so disheartening.