Wednesday, March 10, 2010

'Ware the First.

With all eyes on McDonald v. Chicago and its implications for our Second Amendment rights, it's interesting to note that the Supremes have just granted cert to Snyder v. Phelps, a case with equally important overtones for the First: To wit, does the right to free speech extend only to nice speech? Can you say unpopular things as well as popular ones? Is there a right to not be offended?

As much as I loathe Phred Phelps, and would probably drink a toast were he to choke on his last cookie tonight, he has the right to be as big a rude, annoying jerk as he wants to be so long as he keeps his hands to himself and minds the No Trespassing signs, just like every other rude and annoying jerk in America.

If he can't say "God Hates Fags" on his signs, then how long before I can't say "I Hate Jeezo Nazis" on my blog?


Mr.B said...

While I support his right to free speech, the fact is that free speech is not without consequences. He should pay for the damage hs has done to the family. That is a separate issue from "free Speech"

I can say "Tam is a Jew Hater" and that would be libel, and actionable in court(and a lie).

Personally, I am suprised someone hasn't kicked his ass back to Jesus yet. That would of course, be wrong, and illegal, but not such a bad idea.

Weer'd Beard said...

Yep the test of rights is not our protection of me saying Avatar was a lame film (and Damn you Tam for saying I might be woo'd by the pretties!) but the really sinister creeps that say and do things we ALL think are disgusting.

Because the Constitution does not supply you the freedom from being offended. And thank God, because I rather enjoy a good offense to clear the pallet from this Bubble-wrapped PC world!

WV: "supesser" Gun, or Free Speech?

RobertM said...

Making the standard 'how it makes one feel' when protecting speech is a scary proposition, and a dangerous one.

Anonymous said...

What I find amusing is how the Left yaps about the mystical beauty of "offensive speech" but trembles at the sight of "offensive guns".

If the Second Amendment were granted the same worship as the First law school faculty would be arguing that ownership of M16s and M249s is mandatory for citizenship.

Shootin' Buddy

Tam said...

If the First Amendment were granted the same worship as the Second, Clayton Cramer would be arguing that ownership of porn was mandatory for citizenship.

Weer'd Beard said...

I dunno, Tam. Somebody without porn is likely a secret communist!

Tam said...

I am pretty sure that extortion demands aren't covered.

Nathan said...

I don't like Nazis. Not one little bit. But the fact is that they had a perfect right to apply for a march permit through Skokie. Just like the citizens of Skokie had a perfect right to line the parade route and tell 'em what they thought of them.

Same deal with Fred Phelps.

The Constitution isn't about feelings. It's about rights. Nowhere in the Constitution does it say one word about your right not to be offended.

And damn it, it doesn't say anything about a right to privacy, either.

Borepatch said...

"Fighting words" are not protected.

Are Phelps' words in this category? I don't know - IANL. But in times past they sure would have been.

There's a world of difference between saying "homosexuality is a sin and bad for the nation" and saying "the Lord took his vengeance on YOUR son because of this". The first is unmistakably political speech; the second is something different.

I'd even be sympathetic to Phelps' claim that he has a right to say this sort of drivel. However, a funeral, particularly when a parent buries a child, is a very emotional moment. Expecting calm, rational response from people then is (ahem) at best a strategy of hope.

I see this as a further example of the government assuming control over areas where people used to settle their differences privately. If a riot broke out and Phelps was thrashed by enraged friends of the deceased, they'd likely all be arrested. So you can't settle this sort of thing yourself anymore. But the government won't do it, either.

Comrade E.B. Misfit said...

Old maxim: Hard cases make bad law. I agree that Phelps has a right to do what he does.

I'd also not vote to convict someone who rearranged his dental work. But that's just me.

Mark B. said...

I am deeply ashamed that Phelps is from the capitol city of my home state. In fact, I have to admit to living within 30 miles of his pestulant "compound."

Phred, it should be remembered, is not only a Baptist "minister", he's a practicing attorney (who cut his legal teeth on civil litigation when working for the ACLU) as is his daughter Shirley, who is the principal in this case.

Their modus operandi is: Show up to protest fallen soldier's funeral. Stay within the legal and locational confines of permit (or advice) to protest. Be as obnoxious as possible and attempt to incite actionable offense. Run to court and file civil suit. Lather, rinse, repeat.

Paranthetically, I've personally witnessed this in my home town when a local soldier came home to his final rest. Unfortunately for the Phelpses, a local trucker parked his rig with a 53' box trailer on the side of the road right in front of them, shut it down, flipped on the four-ways, locked it up and walked away. The guy thought their frustration was worth the price of a parking ticket, but the cops refused to cite him.

For them it's essentially a costless exercise since several members of the family are attorneys experienced in arguing such cases. To the extent that they believe anything they say about !!!1!1!teh gay cooties!!!1!1! I can't say with any authority; my suspicion is that they're protesting homosexuals with much the same sincerity Jesse Jackson claims to be the champion of race and education equality . . .

More likely they're simple camera whores. They could be crazy but they're not particularly stupid in either event. And therein lies a valuable lesson:

Never underestimate the intelligence of your enemies, appearances notwithstanding.


D.W. Drang said...

I recall hearing or reading that some city in Ohio had passed (or at least considered) a law establishing that the public burning of The Colors was "incitement to riot". You can claim you have the First Amendment Right to do so, but don't come crying to us when some former Marine beats the crap out of you, We Warned You.

Similarly, it seems to me that establishing that one cannot protest the military within a certain distance of a military funeral falls into the same category.

I don't normally like "For Your Own Good" laws, but this one is intended to keep me from going to jail for losing it and smashing Phred Phelps and his Phollowers' skulls, so I can live with it.

Maybe that makes me a closet Nazi taking the first step on the slippery slope to let the camel's nose in the tent, but I don't think so.

BTW, Nathan, I disagree about your claim that the Constitution says nothing about a right to privacy. It may not use the word, but the concept is all through the Bill of Rights. My take on that.

Michael said...

Maybe a counter protest is in order. I doubt Phelps would take kindly to people protesting him while he is burring members of his own congregation.

On a lighter note, the Brits are probably scratching the heads wondering why us Yanks are protesting their smokes.

og said...

There should be consequences of free speech. You should be free to yell fire in a theater, so long as you're willing to accept that 1100 people will tune you up afterwards

Tam said...


Should somebody who makes a dumb comment on your blog be able to haul you into court after you go all Neanderpundit them?

(I'm partially being all Devil's-advocate-y and I'm partially asking in all seriousness.)

Frank W. James said...

You know speaking as one who has buried a child they loved with all their heart, I think old Phred and his brood of bottom feeders are extremely fortunate to have lived as long as they have.

Because you see, when you bury a child, you bury your future, your hopes, your dreams, everything you've lived for and whatever you hold precious in this life. Unless you have OTHER children, there is nothing else you can lose. Nothing.

I know there have been times during my periods of deep grief I wasn't really wrapped real tight and if I had to have encountered someone like old Phred and his brood and their hateful accusations (which are just as big a sin as any non-sanctioned sexual behavior if you REALLY and truly read and study the scriptures) I can truthfully say 'One of us wouldn't be here any more'.

Would I be wrong, of course I would, but KNOW THIS you can't kill a dead man...

All The Best,
Frank W. James

Mister_V said...

You have the right to say it even if I disagree with it. That said, I kind of like the idea of finding out their schedule and staging an impromptu gay pride parade wherever they set up. Imagine that guy in the photo surrounded by the most flaming, leather-loving "oh-my-God, here-they come, floatin'-around, making-noise" gay guys you can imagine. Imagine that happening every time they went anywhere. With cameras sending every second of it to youtube. And just in case one of Phelps' flock proves to be more prone to "actionable offense" than their intended victims, "oh my, how did all of these off-duty soldiers get here all of a sudden?" Fun to imagine and legal.

theirritablearchitect said...

"...the fact is that they had a perfect right to apply for a march permit through Skokie."

And here lies the problem, sir, you are missing the fundamental that is being addressed in the argument.

Permits? Who's talking about permits?

og said...

Tam: I control the content of my blog. When someone makes an inappropriate comment, I change it to say what they really mean. When I say something about someone on my blog, its either demonstrably true or deliberate sarcasm. And I have never hit publish on a single word I am unwilling to say to anyones face, and if they want to, they're free to take a swing at me afterwards.

They'd better bring their A game, though.

I'm not talking about legal consequences at all, btw. I'm talking about the way gentlemen settle differences, by beating the crap out of one another.

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

I'm not talking about legal consequences at all, btw. I'm talking about the way gentlemen settle differences, by beating the crap out of one another.

The way I learned it in my media ethics class (which was an actual class, not an indoctrination session) was that provisions about yelling "fire", etc., are there because of the potential for harm to innocent bystanders. It's like with drunk driving -- if it was only the drunk idiot's life at risk, it probably wouldn't be an issue. Same goes for incitement to riot, fighting words, etc.: The idea is to stop trouble before it starts, thereby preventing harm and damage to uninvolved third parties. Eleven hundred people can't tune you up if 600 of them are in the hospital or dead from being trampled.

og said...

Obviously my comment was rhetorical about "fire", the point being freedom of speech should be absolute but it should not be free of consequence and the consequence should not necesarily involve the law.

Nathan said...

D.W. Drang: The Constitution does not say, "The right to privacy shall not be infringed." But if you're going to allow penumbral readings, you also end up with other "rights" that don't exist. Which way do you want it?

Irritablearchitect: Parade permits I don't have a problem with; when you consider the disruption that a parade causes on city streets, the extra police required, responsibility for cleanup, etc., that's what a parade permit is really all about. Maybe it wasn't in the past, but nowadays, I can't really see city government refusing permission to a group it doesn't like just because it doesn't like them. I think they'd be hard-pressed to refuse such a request (and sued up one side and down the other if they did). But the permit does establish that there are responsible people involved and that damages will be covered and so forth. And the cost (at least in Indianapolis) is minimal and probably doesn't even cover their paperwork. YMMV.

Anonymous said...

IMHO I would say his despicable behavior would be covered under the 1st Amendment.

I would also say if I was a juror I would never convict someone for stomping the bejesus out of him and his tribe.


Stuart said...

Frank W. James: As someone who has also buried a child, I was just about to make the exact same comment. If the Phelps clan would have decided to picket my daughters funeral I am not sure I would have been able to restrain myself. Grief does that to a man.

I believe that hate is a poison to a man's soul; it eats away that which makes us human. If the actions of Fred Phelps and his ilk are any indication, by that measure I would have to wonder if/how they still maintain their humanity. I guess that that is a question that only they would be able to answer, preferably after taking a long honest look inside in the deepest, darkest, lonliest part of the night. I sure wish they would.


Ken said...

@Nathan: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Jenny said...

Like Frank, Stuart, etc... insulting the dead in the presence of the recently bereaved by disrupting a funeral is so far beyond the pale that... well there just aren't any words.

Yeah, I'd say that's pretty much the Platonic ideal of "fighting words" and hope there's not a jury in the land who'd convict a soul of beating them within an inch of their lives for it... or possibly even putting them in the ground.

Now, have 'em made a parade down the street and wave all the obnoxious signs they want... enh. It's still a shadow of a free country - march all ya want.

as to the "no right to privacy" - that's absurd. It's implicit in the fourth, to say nothing of the ninth, as Ken points out. You want to argue The Topic That Shall Not Be Named, great. But you'll have a heck of a lot better luck on the "Right to Life, Liberty, and the Pursuit of Happiness" tack than with "there is no right to privacy."

John A said...

Just wondering. Does the Phelps bunch (all what, 180 of them - less than my local PTA) ever eat lobster or pork? The same part of Leviticus that proclaims [male] homosexuality "anathema" says the same thing about other practices, after all. If they do, and especially if some enterprising sort has pictures, how about counter-protesting with signs saying they should be stoned to death for it? Not actually stoning them, but signs and shouts...

Sevesteen said...

The idea that there was 5 million dollars in actual damages caused by emotional distress is silly. In reality this is a way to give the Phelps what they so richly deserve, despite their reprehensible actions being legal.

What's the difference between the government fining the Phelps directly, and the government allowing a dubious damage claim for speech?

With this as a precedent, couldn't a "traumatized crime victim" sue successfully when someone open carries at a political protest, because it brought back memories of their attack?

LabRat said...

Phelps is famous for using the Bible almost purely and exclusively as his justification to hate and claim the right to dominate whoever he can. What he's chosen to hate has changed over the course of his career, it's just this version has gotten him the most attention, which he loves. To give you an idea, the reason "Westboro Baptist" isn't actually recognized by any Baptist convention in the nation is that the most extreme sect he could find kicked him out for recommending a parishioner settle his marital differences by giving his wife a good hard beating. Which he did, and which he was arrested for. Phelps isn't a Christian, he's a sadist with a book.

As for the case, I'm with Tam; the Phelpses are exploiting the boundaries of what civil society permits, which doesn't meant those boundaries aren't wholly necessary and the Phelps might be an unfortunate consequence less unfortunate than the alternatives.

That said, I do expect the argument to come down to "fighting words".

staghounds said...

Fred's "speech" isn't. Given its time and content it's a breach of the peace.

TOTWTYTR said...

Mr. B has it right. The First Amendment restrains (or should) the government from restricting free speech. It does not restrain private citizens from taking action against speech they find defamatory or otherwise damaging. If the First Amendment extended to private citizens, you would not be able to moderate comments on a blog.

Speech such as Phelps should have consequences, if not criminal then civil.

Tam said...

"If the First Amendment extended to private citizens, you would not be able to moderate comments on a blog."

Bad analogy.

I can't keep Fred from saying "God Hates Fags". I can keep him from saying it on my lawn.

kishnevi said...

With this as a precedent, couldn't a "traumatized crime victim" sue successfully when someone open carries at a political protest, because it brought back memories of their attack?

Intentional infliction of emotional distress is a recognized tort. It would apply to your example, however, only if it was intentional. If some guy was openly carrying for the sake of provoking flashbacks on the part of some muggee or other, then he could be sued. But if there was merely some one in the vicinity who happened to have a flashback, then no one gets to sue the guy who is open carrying. (Leaving out the complication of reasonably foreseeing the presence of people who would have flashbacks as a lawyerly complication.)

og said...

So, Tam: Was my answer what you expected?

I think we're not far off one another but I'm wunnering what you think, since you asked.

I'm with Frank, by the way. Someone shows up at the funeral of one of my loved ones? they better bring their A game there too.

I think the consequences of being an ass in public are a jab in the snot locker, and an immunity from prosecution for the deliveror of the jab. But you should still be free to say what the hell you want when you want.

By the way, try free speech in the workplace. Good way to not be in the workplace. Free speech at work doesn't work- well, for most people. I say what I want, to anyone I want, at any time. My employers think of it as a quaint personality trait that's tolerated as it balances against my skills. And I am always civil to customers.

Tam said...


I didn't really have any expectations one way or the other; that's why I asked.

FWIW, if a grieving relative were to punch Fred, I wouldn't be able to acquit them, because I'd be sent home faster than you can say "voir dire".

og said...

lol. Nice.

T.Stahl said...

So that is that POS mentioned the in the AFN News who protests at soldiers' funerals and blames the casulties to the WOT on gays.

I have a soft spot for him.

It's at the forward end of a spin-stabilized object travelling at Mach +2.

Dr. StrangeGun said...

In FantasyWorkd (i,e, this can't and shouldn't actually happen) there would be a MediaMultiplex(tm).

Phelps is out protesting next to the road in their little permitted area. Another rig 'breaks down' in front on the street. A cellphone-bearing driver (on with 911, incidentally) is suffering unintentional acceleration of their massive Toyota Sequoia and at a high rate of speed, chooses the wrong (depending on viewpoint) path around the rig blocking the road. The police take a staggering 15 minutes to respond to the incident and EMS takes a further 30 minutes, all due to some prank calls, and once the Phelps crowd is *at* the hospital, 1/3 get ignored to death (the British model), 1/3 get the wrong procedures (sucks to get the wrong leg amputated, doesn't it?) and 1/3 develop severe MRSA infections (mostly of the larynx, for some reason).

The news outlets would overgorge to the point of exploding.

og said...

Question: If god hates fags, whyd he make so many? And how am I supposed to get my living room decorated without them?

Laughingdog said...

"And damn it, it doesn't say anything about a right to privacy, either."

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

Just because it's not an enumerated right doesn't mean it's not a right. Hell, if there's no right to privacy, I guess we don't need that silly 4th amendment.

Tam said...

The BoR isn't a list of your rights, which are nearly infinite insofar as they don't mess with someone else's; it's a list of restrictions on the government.

Anonymous said...

In case you haven't seen LawDog's recent post on dueling...

This radical christian supports the legalization of dueling. I'm sure there will be gays lined up to trade lead balls with the Phelps clan, and I'll be happy to show them how to aim while I'm standing in line next to them.

T.Stahl said...

Somehow I keep seeing this image of a Marine Honor Guard being issued...what's English for dezentral beschaffte Sicherungsmun? Decentrally procured protective ammo?
Well, the Gunny's name tag says Highway, so you'll get the idea.

RevolverRob said...

I want to go back to the "fighting" words thought. This is not correct, there is a ruling discussing the use of words or phrases that might incite a riot, not cause a fight.

I don't like Phelps and his cause as much as the next guy, if he showed up on my lawn, I would take the opportunity to escort him off of it, in a brusque fashion.

Unfortunately, until Phelps crosses the line and attacks someone, his speech and right to protest is protected by our Constitution. Right, wrong, or otherwise, I would die protecting Mr. Phelps right to be an asshole. Limiting free speech is just another way to limit your freedoms as an individual.


Sevesteen said...

If some guy was openly carrying for the sake of provoking flashbacks on the part of some muggee or other, then he could be sued. But if there was merely some one in the vicinity who happened to have a flashback, then no one gets to sue the guy who is open carrying.

Defining "for the sake of" is too open to interpretation--Look at the mainstream media insisting that people carrying guns near Town Hall events were obviously racists out to intimidate Blacks. It wouldn't be all that unlikely to get a jury who felt the same way.