A quick test of your commitment to the First Amendment is to ask yourself whether you support the American Civil Liberties Union in its lawsuit defending the right of the anti-gay Phelps clan to conduct its hateful demonstrations outside the funerals of American soldiers killed in Iraq. Many will answer no, saying something like, "I'm all for freedom of speech, but it has limits."
The same sentiment was widely uttered earlier this year after a Danish newspaper printed cartoons of the prophet Muhammad. Many commentators seriously asserted that no one has a right to offend other people's beliefs. Similar views are often expressed about protesters burning the American flag.
In the current session of the Washington D.C. city council, a bill to protect adolescents and children from the corrupting influence of violent or obscene video games was co-introduced by every council member but one. Its sponsors, including the openly gay chair of the committee with jurisdiction, were unmoved by the lack of evidence that viewing videos causes violent behavior, or by the fact that similar censorship laws elsewhere have consistently been overturned as unconstitutional. The lone dissenting council member, unsurprisingly, was also that body's leading civil libertarian. Fortunately, the council chair, now running for mayor, has heeded the city's attorney general on the bill's dubious constitutionality and withdrawn her support.
Recently, a draft rulemaking was published for implementation of the D.C. Human Rights Act's prohibition against discrimination based on "gender identity or expression." The local ACLU chapter and the Gay and Lesbian Activists Alliance (of which I am a member) raised First Amendment concerns about a provision declaring the use of certain words in the workplace as presumptive evidence of discrimination. ACLU cited the Supreme Court in Clark County School Dist. v. Breeden, which stated that "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Rather than consider that perhaps the regulations should be tightened to withstand court scrutiny, the leader of the transgender activists expressed disappointment that anyone would raise First Amendment concerns, because "the First Amendment has often been used against us." Here was a member of a persecuted minority treating the keystone of American civil liberties as a hindrance.
In 2000, the ACLU was widely attacked for defending the free speech rights of the North American Man/Boy Love Association (NAMBLA). In response to the criticism, an ACLU statement noted that over the years it had represented such diverse clients as a fundamentalist Christian church, a Santerian church, Oliver North and the National Socialist Party, adding, "In spite of all that, the ACLU has never advocated Christianity, ritual animal sacrifice, trading arms for hostages or genocide. In representing NAMBLA today, our Massachusetts affiliate does not advocate sexual relationships between adults and children.
"What the ACLU does advocate is robust freedom of speech for everyone. The lawsuit involved here, were it to succeed, would strike at the heart of freedom of speech. The case is based on a shocking murder. But the lawsuit says the crime is the responsibility not of those who committed the murder, but of someone who posted vile material on the Internet. The principle is as simple as it is central to true freedom of speech: those who do wrong are responsible for what they do; those who speak about it are not."
I myself took part in the expulsion of NAMBLA and other pedophile groups from the International Lesbian and Gay Association in 1994, and toward that end I wrote a critique of NAMBLA that was printed in several gay papers. I used a copy of the NAMBLA Bulletin as the basis of my critique, which would have been impossible had it been censored by the government. Objectionable opinions are more effectively addressed by rebuttal than concealment.
As members of a minority group, LGBT people should be especially alert to censorship's two-edged sword. In her excellent book, Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights, ACLU President Nadine Strossen points out that the anti-pornography campaign led by feminists Catharine MacKinnon and Andrea Dworkin ended up being used against feminists themselves. After Canada, heeding the MacDworkinites, banned pornography that could be considered dehumanizing or degrading to women, Canadian officials began seizing shipments of books to gay and women's bookstores, including works by Dworkin herself.
Freedom of speech means nothing if not the right to offend, short of defamation and other narrowly drawn exceptions. In a 1943 Supreme Court ruling against forcing anyone to say or even stand for the Pledge of Allegiance, Justice Robert Jackson wrote, "Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom."
In 1820, Thomas Jefferson wrote of academic freedom at the University of Virginia, "This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow the truth wherever it may lead, nor to tolerate any error so long as reason is free to combat it."
You should not seek liberties for yourself that you would deny to others. Sure, it takes more effort to refute something offensive than simply to say, "Shut up," but if we cannot make our case without silencing our critics, we are in trouble. There is no good substitute for persuasion, and there are no shortcuts to freedom.
40 Comments for “First Amendment, Last in Our Hearts”
posted by kittynboi on
“”””Freedom of speech means nothing if not the right to offend, short of defamation and other narrowly drawn exceptions.””””
I think it was Gahndi who once said; Freedom is meaningless unless it also allows the freedom to err.
======
While I hate Phelps, I’m glad the ACLU defends him for the sole reason that it should shut up those on the right who say the ACLU only represents the left. Of course, if defending Oliver North can’t convince them otherwise, I suppose nothing will.
As for the mohammed drawing issue; it was less of a surprise to me that people were sympathetic towards censoring speech like that, as most people have always shown deference to religious sensibilites of whatever religion when it comes to offensive speech. Its not political correctness, but a long tradition of many people in many parts of the world wanting to draw the line for freedom of expression when it starts to run afoul of religious sensibilities. I for once, being a devoted atheist and secularist, think religion should deserve no more special place than anything else when it comes to how acceptable it is to insult or criticize it.
When it comes to video games, there is even less surprise for me that so many in Washington did what was mentioned in this article; video games are THE current form of expression for politicians to bash and try to make political hay out of their bashing. It used to be comic books, rock music, rap, etc. But as those things were bashed more and more by the Pat Robertsons and Joe Liebermans of the world, their respective communities rose up, got organized, and defended themselves, and said they weren’t going to take it anymore. Videogames have yet to find their consistent, organized voice to speak out and defend them. Its also unfortunate because so many people in elected positions are ancient dinosaurs who don’t know the first thing about videogames.
The ACLU’s decision to defend NAMBLA has continued to haunt them and is still one of the many things the far-right drags out to bash them with. The ACLU consistently stands for principles against the wishes of an unwashed and uneducated teeming mass of peasants, and is consistently demonized for it.
Of course, the right wingers will continue to bleat and bray and brah about how the aCLU is trying to kill jesus and keep kids from praying and burn the American flag and so on and so on.
But what do you expect when elections are not too far away? Its the most horrible time of the year; when the right wing brings out flag burning, violent video games, evil perverse music, etc. etc. etc. etc. just to try and drive the ditto emptyheads to the polls.
posted by Mike on
Phelp’s organization only sparked a law regarding speech within a very limited area near military funerals. You could argue it’s a slippery slope, but I don’t think so. And as the law stands I have no issue with it. This law won’t stop public questioners of the government or people with unpopular ideas from making their opinions public. They just can’t do it during a very small stretch of time in a very limited space. They could do it just about anywhere else 24/7 if they like. It’s a sensible law. I’m all for the ACLU pushing the judicial review though. Perhaps a judge has an opinion I haven’t thought of or an angle I haven’t seen.
I agree though that gay rights supporters often disregard the 1st amendment when it comes to things like accusing people of hate speech or hate crimes (read:thought crimes). Thanks for reminding us that a reasonable counter-argument is, in the long-run, far more effective than censorship.
posted by kittynboi on
I think its pretty stupid to equate hate crimes and thought crimes, as killing someone for being gay is, at least to me, a LITTLE more serious than just having a wrong opinion.
posted by Richard J. Rosendall on
I second kittynboi’s last comment. Many of us on IGF are skeptical of hate crime laws (because it’s the attack itself and not the thought behind it that should be a crime, and already was), but “hate crime” implies a physical attack, which is certainly to be distinguished from mere thoughts, whatever they are.
I appreciate some of Mike’s comments, but I don’t agree that the law restricting the Phelps demos is a sensible law. It is similar to the “free speech zones” by which (for example) protesters outside political conventions or presidential appearances are kept blocks away behind a chain-link fence. What those who back such rules need to be told loud and clear is that America is a free speech zone.
posted by kdogg36 on
To Mike:
The First Amendment doesn’t say “Congress shall make no law, unless they REALLY think it’s necessary” or “Congress shall make no law, unless it doesn’t create a slippery slope.” It just says “Congress shall make no law.”
Now, I realize that congresspeople and presidents and Supreme Court justices have occasionally been too dumb to figure out the plain meaning of those words, but the meaning is, in fact, plain. If you or anyone else thinks there should be exceptions, then the Constitution tells you how to properly go about allowing for that. But, if the English language means anything, and if the Bill of Rights means anything, then I don’t see how anyone can support any law restricting freedom of speech, given the current wording of the First Amendment.
posted by jerryt on
I have always been a “Hugo Black” first amendment absolutist. I believe the first amendment means what it says. Unfortunately, the average American does not truly support freedom of speech. Political science studies show that the average person approves of the amorphous abstract term of
Free Speech..but does not support free speech when put in concrete examples of people saying things or expressing ideas which they find offensive. As a result…my consistent beliefs result in my supporting those opposing a constitutional amendment against flag burning, supporting the rights of Phelps to protest, supporting the rights of the new york times to report the Bush attacks on our freedoms, supporting the rights of nambla to voice their opinion, and my lack of support of hate crime laws for gays.
posted by Drew on
Funerals, however, involve freedom of religion and peaceful assembly. Depending how far such a protests goes, it would violates the rights of others paying religious homage to the dead and the rights of others to peacefully assemble.
posted by kdogg36 on
Drew — nothing I have seen prevents the mourners from peacefully assembling and doing as you say. No threats are made; just a lot of ugly words. Hurt feelings are no reason to curtail someone’s freedom of speech.
posted by Mike on
kdogg:
We already curtail people’s freedom of speech in many situations. -Yelling ‘fire’ in a crowded theater. – Neighborhood covenants that prevent signs on your house or in your yard. City ordinances about noise levels and needing permits to assemble groups greater than a given size. – Harrassment laws preventing people from saying certain things to each other. Some speech can be considered assault.
This ban on protesting at military funerals seems like yet one more sensible restriction to me.
posted by Richard J. Rosendall on
Mike, the exceptions are narrow and few, as they need to be. Of course, in exercizing one’s own freedom, one must not interfere in that of another. But your statement effectively is that because there are any exceptions we are entitled to carve out whatever exceptions we want. No. The Phelps are not disrupting funerals, they are protesting across the street. I think they are vicious nutbags, but they have a right to express their views in those protests. You have not explained why you think such restrictions are sensible. Kindly do not be glib; offer a legal argument grounded in First Amendment jurisprudence.
posted by kdogg36 on
Mike:
I’m going to let Richard carry the thread on the main freedom of speech argument, so as not to make things needlessly complicated. I will just comment that the phrase “sensible restriction” (along with “common-sense legislation” and “bipartisan measure”) is one of those political buzzwords that makes me cringe. 🙂 It usually means that whatever is being referred to is going to expand government power at the expense of individual freedom, which terrifies me.
posted by Richard J. Rosendall on
kdogg36:
Exactly.
posted by Mike on
The arguments against the law seem to be of three varieties.
–The slippery slope | kdogg said my use of the phrase ‘sensible restriction’ and other uses of such phrases terrifies him. Now I assume the only reason this particular law supported by such language would terrify him is not because he believes dissidents are being shut-up by congress. But rather that this law is a slippery-slope possibly paving the way for a time when congress will try to prevent public speech that’s anti-gov’t or anti-congress or anti/pro whatever the lawmakers don’t like.
To that I say that’s why we’re vigilant and when we see a law like this come along we look at it closely. The ACLU assures that the courts look at it closely. And we tread extremely lightly. It being the first amendment, we’re not likely to forget it easily. Should congress make a law that infringes on the freedom to speak without convincing me hand over foot that it’s a reasonable restriction then I’ll stand right beside you in an act of civil disobedience against it. But I took a close look at this, decided it is not something that even begins to threaten my or my neighbors freedom to communicate, to inform each other, to dissent, or to speak our minds in any way.
–It’s unconstitutional | kdogg made an argument about the constitutionallity of the law that ended with, “…given the current wording of the First Amendment.” I’m not so sure the law is unconstitutional given the restrictions on speech I mentioned in my previous post. Though, it appears kdogg disagrees with even those restrictions when he said, “…I realize that congresspeople and presidents and Supreme Court justices have occasionally been too dumb to figure out the plain meaning of those words….” But I assume the crux of our argument is the spirit of the passed-law, not in the process by which it’s made a standing law. If it turned out they had to and congress wanted to amend the constitution so that they could pass this law and others like it I would, after expressing my discontent about their not working on things of more pressing urgency, support it.
— It does infringe on political speech | This seems to be the underlying, most important argument. I said just earlier, “…such language would terrify him …because he believes dissidents are being shut-up by congress….” I’m going to go ahead and assume that that’s wrong, that congress is possibly trying to quell anti-war protestors or something along those lines. And I suppose you could try to argue that there’s no way for me to differentiate between a political dissident or someone with a message to communicate and someone like Phelps who protests in the most annoying ways he can dream up. And I would probably agree that the differentiation between protesters and harrasers is often going to be a matter of perspective. But the law doesn’t send Phelp’s to an island prison, it doesn’t force him to stay home with his mouth shut and it doesn’t prevent him from trying to change the world how he thinks it ought to be changed. It only prevents him from being in a small, tiny area for a small, tiny period of time.
In conclusion: I’m not worried about this being a slippery slope because of the convictions Americans have about the 1st amendment (as evidenced by the difficulty I’m having with getting agreement to my own opinion) and the rarity with which laws like this one are passed. If it’s a problem of logistics within the system of law (constitutionality), then that’s a problem of process, not jurisprudence. Lastly, I don’t see this as a way to beat down an unpopular opinion given the small areas and short time spans in which people can’t protest in those areas. They’re free to protest 1 ft beyond the area of restriction 24/7 or even within the area of restriction 1 minute after the funeral is through. Again, it seems sensible to me but maybe I’m not seeing the arguments the way kdogg, Richard and others are.
posted by Richard J. Rosendall on
Mike,
I’m glad at least that you seem to keep your idea of “reasonable restriction” relatively narrow. But weakening the constitutional keystone of our civil liberties is a reckless thing to do merely to avoid the nuisance of someone like Fred Phelps. I am glad that Mike is inclined to be vigilant after making his one crack in the amendment. I hope he will pardon us for being vigilant now, before such an ill-advised law, a cure worse than the disease, is allowed to prevail.
posted by kdogg36 on
Well, to make my own thoughts clear, I don’t merely oppose this law because it might lead to worse things. Indeed it might, but even if I knew it wouldn’t, I’d still oppose it. And, even if there weren’t a First Amendment, I’d still oppose it.
Simply put, Fred Phelps and his kin have a right to do what they’re doing. Mind you, the manager of a private cemetery has a right to insist that they not protest on private property, but that’s already covered by other laws. If, however, it’s a government cemetery, or if they protest on government roads near a cemetery — then I firmly believe that they have a right to protest there.
If someone uses force or the threat of force to try and stop him, then it’s those people who are the criminals.
posted by Mike2 on
The law does not curtail the speech, it only places a small limit on the physical location in which it may be spoken – much like parade permits limit the location in which that type of speech may take place.
As I understand it, the purpose of Phelps’ demonstrations is to protest the military’s ‘toleration’ of the presence of gays in its midst through the “don’t ask, don’t tell” policy, with the funeral of the service-member serving as the prompt to conduct the protest – whether that particular member was gay or not. Phelps is still free to protest to whoever is willing to pay attention to him. The law simply balances that right against the rights of the bereaved family to not be forced to see/hear the protest against their wishes while attending the funeral. The law is essentially one of etiquette, creating a zone of ‘basic civility.’ The perceived need for the law speaks volumes about the level of civil discourse in our society.
posted by kdogg36 on
Mike2:
“The law does not curtail the speech, it only places a small limit on the physical location in which it may be spoken – much like parade permits limit the location in which that type of speech may take place.”
Accepting for the sake of argument that parade permit laws are even valid… they do not systematically make distinctions against certain kinds of speech about certain kinds of people. That is clearly the purpose and content of the law under discussion.
“The law simply balances that right against the rights of the bereaved family to not be forced to see/hear the protest against their wishes while attending the funeral.”
On public property, Phelps has the right to say whatever he wants, and the bereaved family has no right not to be forced to hear it. They both equally have a right be on public property; neither group can demand that the other not use it for their own purposes.
“The law is essentially one of etiquette, creating a zone of ‘basic civility.’ The perceived need for the law speaks volumes about the level of civil discourse in our society.”
If we are even contemplating the use of laws to enforce “etiquette” by putting people in jail, then what this speaks volumes about is the psychotic nature of society’s view of the role of government in our society. A law isn’t about “civil discourse”; it’s about guns and handcuffs and jail cells.
posted by Mike2 on
Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances. U.S. Const. Amend. 1
It seems the bereaved family does have a right to peaceably assemble for the funeral of their loved one. The psychotic manner in which Phelps conducts his protests is designed to infringe upon that right. Though the protests are not physically violent, one can reasonably argue that the vitriol they are organized to spew is anything but peaceable and that it is disruptive to the funeral assembly.
Again, the law in no way prevents Phelps from saying whatever he wants to, however he wants to or to petition the Government for redress of his grievances. The law preserves his right to do so while attempting to curtail the disruptive infringement of the rights of the bereaved.
posted by Richard J. Rosendall on
Mike2, if you agree with Lewis Carroll’s Humpty Dumpty on the meaning of words, then “peaceable” can mean whatever you say that it means, neither more nor less. Otherwise, no.
posted by kdogg36 on
Mike2:
“It seems the bereaved family does have a right to peaceably assemble for the funeral of their loved one. The psychotic manner in which Phelps conducts his protests is designed to infringe upon that right. Though the protests are not physically violent, one can reasonably argue that the vitriol they are organized to spew is anything but peaceable and that it is disruptive to the funeral assembly.”
How? By hurting the mourners’ feelings and making them mad? No one has such a right not to be offended by other people’s words on public property. Not even at a funeral.
“Peaceable” cannot be construed here to demand that no one say anything that will (even by design) anger or offend other people. That’s exactly the type of speech that the First Amendment is designed to protect. Phelps isn’t physically harming anyone or threatening to do so; that’s “peaceable” enough to qualify.
Despite what Richard said above, I haven’t seen either Mike try to define a clear (and *extremely* narrow) criterion for what types of speech somehow aren’t covered by the First Amendment. If you provided that, I’d still disagree with you, but at least I would be relieved to know that you had thought it through. As your argument stands, I am inclined to ask questions like: Why only military funerals? Why only funerals, in fact? Why only ban speech that many people find particularly vitriolic and hateful? I participated in a loud but peaceful marriage equality demonstration at a Baptist meeting at the Convention Center here in Baltimore a few months ago. A lot of people were angered and offended by us. Could one “reasonably argue” that we violated their freedom of religion or assembly?
posted by Northeast Libertarian on
“hate crime” implies a physical attack
Not necessarily. “Hate crime” is often used to describe speech and thought crimes in Europe, where “hate speech” laws are standard fare.
In fact, an intemperate comment about Muslim fundamentalists, gay activists, or foreign dignitaries with offensive political beliefs can land one a longer prison sentence than murder of someone which occurs “accidentally” during a robbery.
That’s not the sort of America I want. “Offensive” opinions are easily dealt with, countered, or if they’re just stupid, ignored. And rational people can win a debate with a bigot any old day of the week. All “hate speech” laws do is cripple the ability of the polity to react; abridge the freedom of expression of all (as gay activists have found themselves targeted by hate speech legislation invoked by religious figures in Europe); and ultimately lend an oft-undeserved veneer of “persecution” to views which are often reprehensible and easily dispensed with in a rational debate free of fear of legislation and sanction.
posted by Richard J. Rosendall on
NL: Amen.
posted by Moz on
I’m a reproductive rights activist and lesbian, and anti-censorship. Insofar as ‘hate speech’ is concerned, though, couldn’t we differentiate between types of speech? Rational and civil dialogue is far better than a moronic diatribe from some paleolithic social conservative. Still, merely because a moronic diatribe is homophobic, anti-Muslim or misogynist, it shouldn’t be banned. What if our community erotica, reproductive or sexual health information is next?
posted by Northeast Libertarian on
Oh, I completely agree, Moz. No need to ban the works of Paul Cameron when they collapse so thoroughly under their own weight and the most casual of scrutiny.
posted by Mike2 on
Curses! Foiled again by that pesky slippery slope. I take no position on whether the law is wise or desirable. The point is that it is constitutional and that the reason anyone thought to propose and pass the thing is because Phelps & Co. have opted to sink to such depths of (un)civil discourse. They were looking for a reaction and they got one.
Humpty Dumpty notwithstanding, Webster\\’s Collegiate Dictionary, 10th ed. defines \\”peaceable\\” as 1a) disposed to peace : not contentious or quarrelsome b) quietly behaved 2) marked by freedom from strife or disorder.
In my opinion, arguing that the funeral assembly (and perhaps any other) has a right to conduct itself free \\”from strife or disorder\\” is reasonable. Additionally one could argue that Phelps-esque protests are not \\”peaceable assemblies\\” because they are by design contentious, quarrelsome and not quietly behaved. kdogg\\’s opinion that Phelps is \\”peaceable enough\\” to garner constitutional protection is also reasonable. I\\’d also point out that neither I nor the law construes \\”peaceable\\” \\”to demand that no one say anything that will (even by design) anger or offend other people.\\” Nothing in the law prevents Phelps from saying whatever he wants to in whatever manner he wishes, it merely creates a small zone – a peaceable zone, if you will – to allow the funeral to proceed in the manner in which its participants want.
As an aside, I\\’d rather argue that this law is constitutional based on an ordinary definition of the actual text of the First Amendment than try to defend the Supreme Court\\’s divination of an all-encompassing \\’right to privacy\\’ in the \\”emanations\\” of the \\”penumbras\\” (or is it penumbras of the emanations?? — sophisticated legal reasoning can be so persnickity) of an assortment of amendments.
posted by kdogg36 on
“As an aside, I’d rather argue that this law is constitutional based on an ordinary definition of the actual text of the First Amendment…”
Go ahead, then. Sticking to the actual text of the First Amendement, convince me that Congress is given the power to make this law. No sophisticated legal reasoning or Supreme Court divinations, just from the ordinary definition of the words.
posted by kdogg36 on
Also, with regard to my question:
“I participated in a loud but peaceful marriage equality demonstration at a Baptist meeting at the Convention Center here in Baltimore a few months ago. A lot of people were angered and offended by us. Could one ‘reasonably argue’ that we violated their freedom of religion or assembly?”
I’m gathering, from your last comment, that you are more or less answering “yes” to this — one could reasonably make such an argument. If I’m wrong about your opinion on that, accept my apology (and tell me why I’m wrong).
posted by mikekev58 on
I’m with Mike2 on this. The legislation does not prohibit speech or peaceable assembly. It merely puts a limited physical area during a limited space of time off limits. kdogg, the first amendment says a bit more than Congress shall make no law. Your argument (and you may say “Yes, exactly!”), is similar to those who claim the right to individual gun ownership because the second amendment ends with “…the right of the people to bear arms shall not be infringed.” In the case of the first amendment it is the absence of a specific reference to a right to a physical location that makes this “anti-Phelps” law constitutional, in my opinion. To balance things out (I referenced the second amendment) it is the inclusion of the language “A well regulated militia, being necessary to the security of a free state…” that has been interpeted by US Supreme Courts to declare gun laws constitutional, unless those laws violate another element of the Constitution, e.g. the commerce clause which the Supremes used to nullify the “no guns zone” around schools. No such conflict with any part of our Constitution exists as far as the “anti-Phelps”legislation goes, IMHO.
posted by kdogg36 on
Mikev58:
(1) You seem to be perilously close to suggesting that the First Amendment, by itself, doesn’t restrict the actions of Congress at all.
(2) The First Amendment doesn’t talk about “prohibiting” freedom of speech. It says that Congress shall make no law *abridging* freedom of speech. It seems clear to me that a law that punishes people with fines or imprisonment, for nonthreatening speech on public property that their tax dollars pay for, “abridges” freedom of speech, and Congress therefore has no power to make such a law.
(3) I believe in the private ownership of guns… the tyrannical actions of the Bush administration is making that argument more and more obvious. But that has nothing to do with the First Amendment or the discussion at hand.
posted by Bobby on
Hey Kdogg36, I also support the private ownership of guns. Without the second amendment, free speech is not worth a damn.
The ideal state is one where the government fears the people instead of the people fearing the government. Europe is much more politically correct than America because of their anti-gun/anti-freedom laws.
posted by kdogg36 on
“The ideal state is one where the government fears the people instead of the people fearing the government”
I agree 100 percent. And I fear my government a lot right now.
posted by Bobby on
Can’t blame you. Don’t get me started on the fascist unelected TSA and airport security. 🙂
I think Americans should have a referendum on what kind of security they want, specially when it comes to measures that affect them directly.
posted by Northeast Libertarian on
The legislation does not prohibit speech or peaceable assembly. It merely puts a limited physical area during a limited space of time off limits.
Yes, and the same legal doctrine created “free speech zones.”
Want to protest during a presidential visit? You’re welcome to — at least 50 miles away from his visit, inside a caged area surrounded by police.
I’m inclined to lean towards (rare) agreement with Barney Frank in noting that this entire country is a free speech zone. If we seek to deprive Fred Phelps of his free speech rights because of what he says, we surely will see our own stripped from us with the same arguments which have been applied to him.
posted by Elboe on
In the UK, a man is now being prosecuted for saying that all homosexuals were paedophiles. The law is the Public Order Act, section 5. It states that:
5(1) A person is guilty of an offence if he?
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
(2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.
(3) It is a defence for the accused to prove?
(a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or
(b) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or
(c) that his conduct was reasonable.
Unfortunately, this is now being used against gays. A gay advertisement from the Gay Police Association criticised Christians for causing homophobic hate crime. The advertisement displayed a bible and a pool of blood. Christian groups have now complained to the police. The authorities will soon consider whether this should result in prosecution.
posted by mike2 on
1) Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble.
2) One can infer from this that Congress can make laws concerning un-peaceable assemblies.
3) As the definitions of ?peaceable? make clear, a ?peaceable assembly? is not only not contentious or quarrelsome in its nature, but is also free from strife or disorder (which would include externally imposed strife that a protest might inflict on a funeral).
a. See also the definitions of ?peace? ? a state of tranquility or quiet : freedom from civil disturbance; a state of security or order within a community provided for by law or custom; freedom from disquieting or oppressive thoughts or emotions ? and ?peaceful? ? untroubled by conflict, agitation or commotion.
b. These definitions provide grounding for my earlier statement that the law is one of ?etiquette,? which is simply social customs concerning behavior in certain settings. Phelps & Co. have chosen to breach social norms concerning the conduct of funerals, so society has reacted with a law to protect those norms.
4) The funeral assembly has as much right to preserve its peaceful nature as the protest assembly has to say what it wants. The law balances those two competing rights.
I based this argument on my state?s version of the federal law. The state version mentions ?loud and raucous noise,? ?threatening gestures? and intentional ?disruption? of the funeral within the zone (see the ?civil disturbance? definition of ?peace? above). I would take that to mean a (near) silent protest could take place within the zone, though there could still be an argument about how disruptive such an assembly would be to the funeral.
The federal law can be found here: http://thomas.loc.gov , type ?funeral? in the search box. The first result (S.2452.IS) is the law. The first three paragraphs of section 2 state that Congress explicitly based its authority to promulgate the law on the Article I, Section 8 clauses granting it power to ?provide for the common Defence?, ?To raise and support Armies?, and ?To provide and maintain a Navy? and noting that the law does not prohibit any speech (while skipping over the “shall make no law abridging” aspect).
At any rate, I believe Missouri’s version of the law has already been challenged, so we’ll see how it pans out.
posted by kdogg36 on
“1) Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble.
2) One can infer from this that Congress can make laws concerning un-peaceable assemblies.”
No, one most certainly cannot. A statement that “Congress shall make no law…” about things does not imply that it *can* make a law about other things that don’t happen to be listed there.
Those authors of the Constitution who were against a Bill of Rights opposed it for the very reason that they feared it would be construed in exactly the way you are trying to construe it. In other words, they feared that the enumeration of specific rights would imply that Congress *did* have the authority to make laws against other rights. The Ninth and Tenth Amendments were intended to make this interpretation impossible, but either you didn’t read that far, or you chose to ignore it.
The First Amendment is a list of things that Congress does *not* have the power to do; it says nothing about what Congress *does* have the power to do. (That list is contained in Article I, Section 8.) Again, the Tenth Amendment makes this explicit: Congress has no powers that aren’t expressly given to it by the constitution.
Somehow, I suspect you know all this and are just trying to pull one over on us because you think we’re not that smart. You’ll have to try harder than that. 🙂
——-
Also, “peaceable” in the First Amendment is used to modify “assemble.” The First Amendment says (among other things [Congress shall make no law abridging the freedom of speech] AND [Congress shall make no law abridging the right to peacably assemble]. In other words, it can make no law against either one independently.
posted by kdogg36 on
mike2:
My constitional argument with you is included entirely in the previous comment, but I felt the need, once again, to comment on this notion:
“These definitions provide grounding for my earlier statement that the law is one of ‘etiquette,’ which is simply social customs concerning behavior in certain settings. Phelps & Co. have chosen to breach social norms concerning the conduct of funerals, so society has reacted with a law to protect those norms.”
All right, I usually try to respond calmly and clearly to things. In this case, though, I think a profane outburst is the only way for me to properly convey my reaction to what you say here.
If a significant number of people in our society can support (or even tolerate) arresting someone, cuffing him, and throwing him in a cell for a breach of etiquette, then our society is seriously fucked up. If people support the use of force by men with guns to enforce “social norms,” they they have a sick, dangerous, crazy view of the role of government (or, equivalently, the role of the use of coercive force) in human interactions.
posted by Jeff on
Just wanted to say hi and nice job on your website.
posted by Darren on
Many think I’m a 1st Amendment absolutist, but I’m a relativist compared to some of you. If you think the 1st Amendment allows you to stand in the halls of Congress, or in your city council meeting, and scream at the top of your lungs, you’re smoking the good stuff–and not sharing it with the rest of us.
I don’t smoke; maybe that’s why I understand that the “reasonable person” standard applies to the law, even to the 1st Amendment. Keep talking after His Honor tells you to stop–and see how long he buys your justifications about the 1st Amendment.
posted by kdogg36 on
Darren,
The law in question is about banning certain types of speech under certain circumstances. It is very much about the content of the speech in question.
I do not believe that the authors of the First Amendment intended for the allowable content of speech to be subject to a “reasonable person” standard, and neither do I. If the First Amendment really means “Congress shall make no law… abridging freedom of speech [unless a reasonable person thinks that speech is truly offensive],” then it might as well not be there at all. It is meant to make it clear that all kinds of speech are equally protected — especially the expression of thoughts that will anger and offend lots of people. Those are the kinds of speech most in need of protection.