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

[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.)