Vile people, whether Nazis, communists, or homophobes who pervert the Christian faith, make use of the First Amendment, but the First Amendment is more important than their vileness. This remains true, despite (or even because) if these people ever obtained political power they would surely deny anyone else the right to use the First Amendment again.
The Anti-Defamation League is celebrating
the nearly $11 million verdict against the anti-gay Westboro
Baptist Church as "'a repudiation of its hateful ideology." Using
the state's power to adjudicate and enforce punishment against
those who express a "hateful ideology" ought to raise red flags
among those who believe in free speech, no matter how
vile.
More. In the comments, "Another Steve" writes (persuasively, I think):
"Verdicts based on the emotional distress caused by hate speech are, indeed, a very slippery slope-even when it's a civil suit. Many comments were posted on the earlier hate crimes item insisting that hate speech would never be targeted. Somehow, I'm much less certain about that today, reading many of the same people cheer this verdict."
Brian Miller of Outright Libertarians also hits the nail on the head when he comments:
"If Phelps was trespassing on private property and refused to leave, you may prosecute him for that.
"If Phelps assaulted someone during his demonstration, you may prosecute him for that.
"If Phelps damaged someone's car as part of his demonstration, you may prosecute him for that.
"Phelps protested on public property expressing an unpopular message. You may not prosecute him for that. Attempts to "limit" his freedom of public expression due to the unpopularity of his ideas aren't just unconstitutional, but unAmerican. They go against the very ideals of the Republic from its founding."
But it's quite astounding how far the liberal-left has moved toward support for limiting basic rights such as speech and protest (but only against those with "hateful" ideas, of course).
Another point: Every time the Phelps clan/cult protests in public with their horrific "God Hates Fags" signs, it exposes the dark underpinnings of homophobia and causes folks to question what really lurks behind the anti-gay mindset. In short, it does far more to discredit, rather than promote, anti-gay animus. This is bad? We couldn't pay for this kind of beneficial political street theater!
More. To be fair, lesbian progressive Pam Spaulding gets it:
I have doubts that this will hold up; the question is whether picketing outside a funeral is free speech, and I can't see how it isn't-the hatemongers have a right to picket if they are in a public space.
Back to our comments, where "walker" puts it all together:
I'm appalled at all the commenters who think the First Amendment doesn't protect speech they hate. That's the whole point of the First Amendment-nobody needs a First Amendment for popular speech, we need it for unpopular and offensive speech.
Some people say, Well, there's a time and a place for free speech-they can protest on their own property-or as long as they can't be heard inside the church. Would you really say that to gay protesters outside a Catholic church? Or to antiwar protesters outside a Republican meeting? Did liberals tell civil rights marchers-whose message was offensive to many white Southerners-that they should protest only on their own property?
36 Comments for “Is Hate Speech Still Free Speech?”
posted by Lori Heine on
You have the right to freedom of speech. But you do not have the right to get a bullhorn, jam it right into my face and scream at me from point-blank range. That is just about what the Phelps loons did to people.
Freedom of speech is a much-misunderstood concept. You have the right, indeed, to say whatever you want. But others have the right not to have to listen to you. The nuts from Westboro Baptist did their damnedest to force others to listen to them. That, the First Amendment does NOT cover.
posted by Jordan on
What foolishness are you talking about — “state’s power”? This was a civil suit, not a criminal suit. You could start crowing about the overbearing “state” if they had been sent to jail.
Moreover, this had nothing to do with “freedom of speech.” It is an issue of privacy and defamation. No one is denying the Phelps their rights to freedom of expression in any way. You can still be broke and hold a sign, write a book, or scream your lunatic head off. What you cannot do is harass other citizens arbitrarily. Maryland law agrees with me: http://www.firstamendmentcenter.org/news.aspx?id=7622
Finally, let’s not forget that this was a verdict handed down by a JURY. In the best tradition of our court system, the Phelps were heard by a jury of 12 peers — not some liberal judge.
posted by kittynboi on
Stephen just has to stick up for homophobs, again, to show us what an intellectual maverick he is.
posted by Karen on
It’s noble to stand up for free speech rights. However, this is not one of the situations where it is appropriate or necessary, as the above commenters have explained.
Freedom of speech is not freedom to *speak at any time or place without consequence*. I don’t believe this gives the police the right to remove the Phelp-scum from public property because they are protesting a funeral, but it does show the unfortunate mourners that they have recourse with sympathetic civil juries.
It’s too bad that such sympathetic civil juries cannot be relied upon when they protest AIDS funerals – I could imagine that at least part of the jury was outraged *because this was a straight soldier* being protested, not because of the homophobia itself.
posted by Avee on
What foolishness are you talking about–“state’s power”? This was a civil suit, not a criminal suit. You could start crowing about the overbearing “state” if they had been sent to jail.
Newsflash for Jordan: The First Amendment applies even for defendants in a civil suit. And as Miller points out, it’s the state that provides the judge and enforces the anti-hate speech verdict (that’s right, it’s cops and bureaucrats who will do the takin’, not the plaintiff – sure sounds like state power to me).
posted by Another Steve on
Verdicts based on the emotional distress caused by hate speech are, indeed, a very slippery slope–even when it’s a civil suit. Many comments were posted on the earlier hate crimes item insisting that hate speech would never be targeted. Somehow, I’m much less certain about that today, reading many of the same people cheer this verdict.
posted by thegayrecluse on
I agree with the commenters who note that the First Amendment is not a carte blanche to say what you want wherever you want to say it. What’s important here is that nobody is disputing the anti-gay church’s right to express their ideas, but rather limiting the forum in which they can do so. This is no different than the classic case of limiting the right to yell “Fire” in a crowded theater. Conservatives (or worse, libertarians) who latch on to the First Amendment as a free-for-all against government are no better than those gun freaks who latch on to the Second in the same manner.
The Gay Recluse
http://www.thegayrecluse.com
posted by Brian Miller on
nobody is disputing the anti-gay church’s right to express their ideas, but rather limiting the forum in which they can do so
The First Amendment of the United States:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.
The Fourteenth Amendment means that “Congress” is defined as all levels of government from the local borough up to the President and Legislature of the USA.
“Limiting the forum” in which an individual may express himself through government court action based on a law passed by Congress (and also based on tort law) is a violation of the First Amendment of the Constitution.
Plain and simple.
There’s no getting around it.
If Phelps was trespassing on private property and refused to leave, you may prosecute him for that.
If Phelps assaulted someone during his demonstration, you may prosecute him for that.
If Phelps damaged someone’s car as part of his demonstration, you may prosecute him for that.
Phelps protested on public property expressing an unpopular message. You may not prosecute him for that. Attempts to “limit” his freedom of public expression due to the unpopularity of his ideas aren’t just unconstitutional, but unAmerican. They go against the very ideals of the Republic from its founding.
They illustrate the reality — “hate crimes” legislation is all about eliminating the right to freedom of speech, for causes popular and unpopular, that we’ve enjoyed since the ratification of the Bill of Rights.
Even worse, the legal precedents that left-wing social engineers and right-wing putschists alike are demanding against Phelps’s expression can (and will) be used later against gay activists, anti-war activists, and others who embrace a minority agenda in their public speech.
“Liberals” are happily skipping along the path to a police state in this country — they should drop the “liberal” label, as it’s a complete misnomer.
posted by ReganDuCasse on
I think the more enable the Phelps clan is, the more they’ll eventually be hoisted by their own pitard.
I watched a documentary where a film crew followed them to their protests. Attended their church with them, and even a recording session where they had written a song that was clearly anti America. The Phelps are exponentially by their hatred for gay people, are also showing their hatred for America at large. They are an example of people who use and demand the very freedoms they can ONLY have in this country and use it against the very people who fought and died to give them the privilege.
These are people who are more and more inbred by the day. Many of their children are celibate, don’t date and aren’t allowed to. And their church is virtually only attended by other family members. They are a cult unto themselves. They are fearful and at the same time imposing. Their signs didn’t use to be so big, nor their speech so loud and amplified. The more some have tried to ignore them, the more they have employed more invasive, unavoidable tactics. They are setting themselves up and seem to welcome political martyrdom, if not physical martyrdom.
These are not brave people after all. They are a collective mental case.
At any rate, I DO resent it that no outrage was as intense when they picketed the funeral of poor Matt Shepard or any other person who was murdered, rather than died of disease.
They are child abusers and the patriarch so wholly controlling, maybe an implosion is imminent.
It’s hard to shame people who have none.
They’ll suffer the consequences of their actions soon enough. They don’t deserve defense, and I disagree that ALL they say is protected.
It really isn’t, at least not now because of how aggressive they’ve become.
Perhaps too, because they feel no obligation to the law of man (however much they take advantage of it), they are in for a rude awakening. Just a matter of time.
posted by Doug on
Brian you said “Liberals” are happily skipping along the path to a police state in this country — they should drop the “liberal” label, as it’s a complete misnomer.
It was Bush and the GOP that took away habeas corpus which to me is more dangerous to american freedoms than a court case against a religious nut case.
posted by ETJB on
Yawn! More right-wing spin. The 1st Amendment has never meant that you can say whatever you want, whenever you want and withot any consequences.
Emotional distress is a very, very, very hard case to prove in a civil court. Most of the time the courts will ignore it, unless its an odd case.
posted by Richard J. Rosendall on
I wrote about this subject last year in my piece, “First Amendment, Last In Our Hearts: http://www.indegayforum.com/news/show/31038.html
It is true that there are well-established precedents for certain exceptions to the Free Speech rule, such as “fighting words” and libel. But I have seen nothing to justify such an exception in this case other than glib remarks.
In the words of Justice Robert Jackson in the 1943 U.S. Supreme Court ruling that no one may be forced to say or even stand for the Pledge of Allegiance: “Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom.”
posted by The Gay Species on
Slippery slopes pertain to LOGIC and FALLACIES.
The Queer mantra of transgressivity prides itself in the abuse of fallacies (not just fellatio) and its denunciation of logic. The Mind is just an “arbitrary” sign of late-capitalist hegemony to thwart the Queer Agenda — they are led by some amorphous theory of incoherence and indeterminacy.
This $11M verdict, obviously, will be overturned, but few will understand why. HATE speech has to incite violence, or else it is just foul speech, protected by the liberal First Amendment, no matter how repugnant Phelps and his wicked band of Matt Shepard Slayers SEEM to appear. If the picketed family had actually kicked these Idiots in the ass, THEN the Hate Speech Acts might apply.
But before we wish that . . .
I wonder if the S&M garb with half-naked men on dog chain leashes who appear in all their kink regalia at the San Francisco Opera could be deemed HATE speech? I’ve known some observant patrons get a little annoyed with the Queer “in your face” kink Queer Transgressivity.
But one Queer’s transgressivity is another Christianists’ funeral placards. If one is repugnant and hateful (or at least obnoxiously offensive as it is queerly transgressive), then Queer Transgressers will end in court judgments against their Queer Flames.
Such public paraphilia is clearly self-loathing, other-humiliating exhibitionism, for which Queers boast — and identical, save the drag, for what Phelps and Westboro got sued. Anyone want to start a class-action against Transgressive Queer PDK (public displays of kink) as anti-gay Queer HATE-speech?
posted by Jim on
Harassment doesn’t create liability because its “speech”? Huh?
Would you please publish your telephone number so that I can making harassing calls day and night so that I can exercise my “free speech rights”?
One has “free speech rights” against GOVERNMENT – not against other people. Courts have been separating harassment from speech by boors and potty-mouths for some time now. The only reason this particular situation has been going on for as long as it has the harassment has been expertly intertwined with substantive speech. This jury, correctly, recognized that protected speech doesn’t serve as a shield for using that speech for harassing people.
Likewise, it would stupid to defend a murderer for stabbing someone by pointing to their “right” to “freedom of movement” even if holding a knife in close proximity to another – especially if done in a premeditated fashion.
If you want to worry about a “slope” here, it might be to worry that juries are all too eager to find liability for harassing the well-regarded, e.g., dead soldiers, then less regarded persons, e.g. the Phelps’ earlier targets: dead gays – it was the aftermath of the AIDs crisis that this clan learned the Joy of Picketing Funerals.
posted by Jordan on
Once again, the wingnut brigade has sliced and diced my comments and completely removed what I was saying in favor of their agenda. Let’s try this again:
“It is an issue of privacy and defamation.”
I will speak slowly so you can understand me: you cannot mount a campaign of harassment on private citizens. Read the article I linked to. Read Maryland laws. The jury correctly understood that the Phelps’ actions on their website, at the church, (etc.) are a form of harassment.
Stop making this a free speech issue. It’s not.
“Attempts to ‘limit’ his freedom of public expression due to the unpopularity of his ideas aren’t just unconstitutional, but unAmerican. They go against the very ideals of the Republic from its founding.”
Who limited anything? Let me reiterate: the entire Phelps clan can still hold a sign, can they not? They can still write a book, can they not? They can still speak, and demand protest permits, can they not?
“The First Amendment applies even for defendants in a civil suit. And as Miller points out, it’s the state that provides the judge and enforces the anti-hate speech verdict (that’s right, it’s cops and bureaucrats who will do the takin’, not the plaintiff – sure sounds like state power to me).”
Yes, cops and bureaucrats enforce the verdict. That’s what makes the civil courts work. I doubt that when you’re vehicle is hit by a tractor-trailer on the freeway and you’re awarded a multi-million-dollar settlement that you’ll be crying crocodile tears about who’s going to enforce it, eh? The First Amendment DOES apply to civil suits, JUST NOT THIS ONE.
posted by Lori Heine on
“Who limited anything? Let me reiterate: the entire Phelps clan can still hold a sign, can they not? They can still write a book, can they not? They can still speak, and demand protest permits, can they not?”
Exactly. They have not been stopped from speaking; they have been stopped from disrupting private events (funerals) on private property.
Your freedom of speech ends at my doorstep. The right to free speech must exist alongside the right to private property. Are these free speech advocates actually claiming that the owners of the funeral homes, the churches, the chapels and the cemeteries have no rights? What about them?
The First Amendment guarantees you the right to speak. It does NOT force me, or anyone else, to give you a forum.
posted by Jorge on
I agree with Lori Heine here. I also think the people who don’t support the verdict support protecting freedom of speech more broadly than the First Amendment does. And that’s okay, but that doesn’t mean the First Amendment says anything relevant here. This is a civil suit. Even if the Phelpses have to pay a judgment, that’s not yet preventing them from protesting at future funerals. It’s just gonna cost them. The courts just have to make sure this verdict doesn’t leave them destitute.
posted by The Gay Species on
Lori: “The First Amendment guarantees you the right to speak. It does NOT force me, or anyone else, to give you a forum.”
Huh? What value is freedom of speech without a forum in which to exercise it? This myopic dichotomization illustrates the problem. Freedom of speech WITHOUT a forum is meaningless.
If the protests occurred on private property, why have landlords (or property owners) NOT evicted these fanatics? If they’re disturbing the peace, including those who rest in peace, then why have these fanatics not been evicted from their offensive venues?
My home is not Phelp’s forum. Church property is private property. Phelps may be whacky beyond belief, but he knows his rights extend only to public property. And before Queers evict Phelps from PUBLIC property — THAT is the slippery slope Miller is identifying — the same tactic could be used against homophiles to prevent us from speech on PUBLIC property.
Or is this another Queer Special Pleading? We get speech, but “you” don’t?
posted by Lori Heine on
“Or is this another Queer Special Pleading? We get speech, but “you” don’t?”
Species, I can’t wait until the Phelps bunch, or a similar pack of loonies, sets up shop across the street from your house, blasting their hate through your windows and doors over a P.A. system. will you then — true to principle — will stand in your front yard and applaud their “right” to freedom of speech? I’m sure that will be great fun.
If the sound carries onto private property, it is harassment. If the people attending a funeral have to stuff cotton into their ears to even concentrate on what is going on at the event they have chosen to attend, then how is “freedom” being served?
If you believe that those who disagree with a particular idea are duty-bound to provide a forum for it, then you are very, very confused. There are a wide variety of ways the Phelpses can promulgate their ideas. They don’t need to harass people who don’t want to listen to them.
It is a fairly well-known fact that Phelps, a lawyer, hopes to provoke anger in those his minions are harassing, so that they will knock the shit out of him and he can sue them.
He has gotten exactly what he deserves.
posted by Brian Miller on
It was Bush and the GOP that took away habeas corpus
So since Bush revoked habeus corpus, the left get a mulligan to revoke the First Amendment.
sigh
And we wonder why our country is in such sorry shape.
One has “free speech rights” against GOVERNMENT – not against other people.
Could you cite the section of the First Amendment that says this?
Didn’t think so.
The reality is that this gent is using government power to punish unpopular speech by a group with whom he disagrees.
The group is unappealing (to say the least), but has a right to “grab a microphone and make their views known” just as much as anti-war protestors who do the same to Halliburton executives.
The zeal to eradicate the rights guaranteed in the Bill of Rights by both the left and right, with bullshit “he did this so I can do that” rhetoric, has resulted in a severe decline in civil freedoms in this country.
Frankly, I value the right to speak freely about issues I care about a hell of a lot more than I care about silencing Fred Phelps. The people perpetuating the overturning of the First Amendment to silence their critics are going to be some of the first people who will be silenced with the laws they helped create — when Halliburton’s CEO sues anti-war protestors for “emotional distress” and an employee of Kellog/Brown & Root sues MoveOn.org into insolvency over their “hate speech,” the hue and cry will be loud (and much, much too late).
posted by Craig2 on
No-one has yet commented on the fact that Phelps was found guilty of trying to disrupt a funeral service for a slain (gay) marine.
There is a time and a place for public protest. However, Phelps caused additional grief and suffering to the family of that young man at a deeply painful time of their lives and *they* did not deserve exposure to that.
Aren’t there laws against disrupting worship, funeral or commemoration services? Sounds like an infringement of one’s religious freedom to me -which surely is as sacrosanct as free speech? Didn’t that young man’s family have the right to mourn their loved one in peace without desecrating that?
Craig2
Wellington, NZ
posted by Brian Miller on
No-one has yet commented on the fact that Phelps was found guilty of trying to disrupt a funeral service for a slain (gay) marine.
There’s no such crime as “trying to disrupt a funeral service for a slain gay marine.”
Further, the marine in question wasn’t gay. He was just a casualty of war — in Phelps’s fractured theology, all such casualties are punishment by God against “gay America.”
So long as Phelps wasn’t trespassing on the funeral grounds (he wasn’t) or assaulting participants (he wasn’t), he has a right to protest on public property.
Aren’t there laws against disrupting worship, funeral or commemoration services?
Most of them have been deemed unConstitutional. Churches have a right to eject individuals who disrupt services within their churches, etc. and charge the “disruptors” with trespassing. They don’t have a right to sue people protesting on the street outside.
What scary about the defense of these laws is that there are far more gay protests in front of churches than there are Phelps-fests.
If the Orwellian laws being rationalized in the Phelps matter were applied equally across the board, there’d be thousands of gay people owing billions of dollars in punitive damage to Catholic dioceses, Anglican primates, Pat Robertson and his organization, and Jerry Falwell’s organization.
Unfortunately, knee-jerk animus towards extreme people tends to overrule the senses and blind people to the ease with which these laws could be applied to them.
posted by Lori Heine on
Regardless of how each of us may interpret free speech, we mustn’t overlook the irony. And I can’t help but find it delicious.
The Phelps droids try to provoke a fight — so they can sue. And then they end up getting sued.
Get it? GET it? If not, you have no sense of humor.
Maybe Brian’s right, and anything goes where freedom of expression is concerned. If so, and we lack the common sense and decency to use it wisely, it probably will be taken away from us someday.
What’s the answer? Maybe we ought to bring back duelling. People were a hell of a lot more polite to each other when they knew they could get the crap kicked out of them or end up getting shot. And isn’t duelling actually one more of the glorious forms of free expression?
I vote for bringing it back. Who knows…it might make the Internet a little more civil, too.
posted by Walker on
I’m appalled at all the commenters who think the First Amendment doesn’t protect speech they hate. That’s the whole point of the First Amendment — nobody needs a First Amendment for popular speech, we need it for unpopular and offensive speech.
Some people say, Well, there’s a time and a place for free speech — they can protest on their own property — or as long as they can’t be heard inside the church. Would you really say that to gay protesters outside a Catholic church? Or to antiwar protesters outside a Republican meeting? Did liberals tell civil rights marchers — whose message was offensive to many white Southerners — that they should protest only on their own property?
As Steve said, the Phelpses are vile. But vile speech is protected in a free society. As Anthony Rothert, Legal Director of the ACLU of Eastern Missouri, said (in talking about criminal sanctions on funeral protests, not this civil case), “The response to speech that is offensive should be more speech explaining why we disagree, not having the police arrest those who take an opposite view. Allowing speech we find offensive in public forums is one cost of the freedom that defines America.”
posted by Lori Heine on
“I’m appalled at all the commenters who think the First Amendment doesn’t protect speech they hate.”
I could say that it doesn’t even protect all the speech I like — but that is not quite what I mean.
Do gay activist groups have the right to disrupt worship services, stomp on the consecrated Host and pee in the holy water? Some people regard THAT as free speech. Though I may agree with what they’re trying to say, I don’t believe that their thuggery is covered under the First Amendment.
It has nothing to do, for me, with whether I like the speech or whether I do not.
Do the Phelpses always stay on the side of the line that the First Amendment protects? I don’t know. I’ve heard stories, however, that make we wonder.
Those who physically assault women at abortion clinics claim that they, too, are merely exercising their freedom of speech. I believe that abortion is a sin. But I still believe that they have crossed the line from what should be protected and what should not be.
Perhaps the Phelpses have not done anything more than speak — however obnoxiously. If so, then of course the First Amendment covers their speech. But if they lay one finger on anybody, they have crossed the line.
If we are going to start considering violence “Free Speech,” then there’s one other thing that we must do. We must stop punishing those who stand up to it and fight back.
Sometimes, in our society, it seems that the authorities coddle the thugs — who somehow have more free speech than the rest of us.
Do the Phelpses stay non-violent? Again, I don’t know. Does anybody have a better insight into this? I’d be interested in hearing. I’ve heard plenty of stories, but I’m not sure how many of them are true.
posted by ETJB on
“Hate Speech” that does not involve fighting words or obscenity or a criminal act is protested by the First Amendment.
posted by Craig2 on
Whatever the sexuality of the young man whose funeral was disrupted, it still must have been deeply wounding to his parents.
And is a graveyard a fit place for public protest?
Craig2
Wellington, NZ
posted by dalea on
When the Phelps show up to protest, and I have been through about 8 onslaughts, they come with at least one bull horn, high decibal variety. They stand in a group, trying to block access to a building. Everyone who walks past is subject of vicious name calling. Women are usually ‘whores’ or ‘sluts’, men are ‘fags’ or ‘homos’. They spit on people. Sometimes they form a gauntlet that people have to go through to get to the building. One friend of mine was spit on by the whole family as she made her way to St David’s Church in Topeka.
They will also bring the bull horn very close to peoples’ ears, which can cause damage to hearing. I have been told they also try to trip people and kick but have never seen that. At the Sunflower Convention Center in Topeka, on Friday, Phelpses would first picket every event. Then go down to Topeka Blvd and protest. What always surprised me was to see many cars pulling over to give them money.
Another tactic they use is to somehow obtain confidential medical reports. Then they would go and picket people’s places of employment to let everyone who had been treated for VD. They would stand outside yelling X has syphillis.
When they first started picketing funerals, there was an attempt to have a public letter in the paper denouncing the pickets. Over one half the clergy refused to condemn Phelps’ actions. Which tells us a lot about conservative Christians.
I have been picketed by them. And am not sure if bull horn in your ear, spitting, tripping and kicking count as ‘speech’.
posted by Jordan on
Craig2, that’s the essential question: is there an “appropriate” place to protest? Should protest be free in every situation, or are there practical limits?
It seems there is a rift here (and on other forums in which this discussion has occurred that I have seen) between those who feel that the First Amendment protects freedom of expression, regardless of the personal cost to individual citizens and their privacy. On the other hand are the folks who believe that freedom of expression is protected most vehemently when directed at institutions, government, and government representatives, while private citizens have a right to peace and privacy in their daily lives.
As with most United States politics, it’s a polarizing issue. There isn’t any one right answer, either way — individuals DO deserve peace and privacy, and the law DOES protect them from harassment by other private citizens. But there’s plenty of gray area here, when Phelps and his clan followed the rules, but still managed to disrupt the even they were protesting — which a civil jury of 12 people felt was offensive enough to warrant a multi-million dollar settlement. Meanwhile, freedom to express yourself is an essential element of the U.S. ethos, and critically important to our ability to defend ourselves against the rogue elements of our crumbling Republic.
There’s no hard-and-fast rule either way, unfortunately.
posted by Lori Heine on
“And am not sure if bull horn in your ear, spitting, tripping and kicking count as ‘speech’.”
I don’t think any of those things do count as “speech.” Not as speech that ought to be protected.
That’s exactly the sort of thing I’ve heard the Phelps crowd does. And that’s what I mean when I insist that harassment — some of it evidently physical — is not “free speech.”
If gay rights protestors did such things to anti-gay Christians, can you just imagine the outrage? No one in their right mind would suggest it was covered by the First Amendment.
Another irony here is that many of the same sort who defend the Phelpses as having “exercised freedom of speech” were horrified (and in many cases properly so) at some of the apelike behavior of radical demonstrators during the Sixties and Seventies.
Sauce for the goose and all that…
posted by Steven D. on
There is a basic misunderstanding of this case among a lot of commentators. The First Amendment prohibits only governments from abridging speech, not private citizens. The Phelps case was not a criminal case, with a government as a party, upholding an ordinance or statute. It is a civil case, of a private citizen plaintiff (the father of the soldier being buried) against a group of defendants (Phelps & co. and the Westboro Baptist Church). It was a tort case — for inflincting extreme emotional distress; a defamation case — for spreading lies about the plaintiff; and an invasion of privacy case. If Phelps is somehow able to convince an appellate court that it is a First Amendment case, it will be a novelty in American jurisprudence.
posted by Brian Miller on
The First Amendment prohibits only governments from abridging speech, not private citizens.
Since when has civil court been administered by “private citizens?”
Never.
Civil courts are creations of state statute (or sometimes state constitutions). Both state constitutions and state statute are subordinate to the federal constitution and Bill of Rights.
Any civil court, as a branch of government, that abridges the right to freedom of speech is indeed violating the First Amendment.
If Phelps’s boss fired him for his comments, you’re correct — the First Amendment doesn’t cover that.
But in this case, coercive government power — in the form of a civil court created, staffed and funded by government — has been applied to silence someone based on the simple fact that his message is unpopular.
You’ll be singing a different tune about how great this is when the same logic is used to destroy left-leaning organizations who embrace unpopular or minority perspectives on the issues.
posted by Brian Miller on
Do gay activist groups have the right to disrupt worship services, stomp on the consecrated Host and pee in the holy water?
That depends.
If I break into a church that doesn’t want me there, tresspass, and vandalize their property with my foot and my urine, that’s far from “speech.” That’s violent breaking, entering, and destruction of property.
However, if I have my own public demonstration in the town square where I stamp on “communion,” you’d better believe it’s protected expression. And if “offended” religionists sue me in a government court seeking millions of dollars from an emotional jury for my “infliction of distress,” you’d better believe my First Amendment rights are being violated.
Incidentally, the second situation is far closer to the Phelps case.
And sadly, those who have pursued this case and its associated apologia have managed to do what was once impossible — give currency to Phelps’s victimhood schtick. That’s not doing the gay community any favors.
posted by dalea on
Gray area: what if you attend an open to all comers event and get so upset you do the actions? Don’t overlook that churches claim to be open for all to attend. And receive enormous taxpayer subsidies. The one event that everyone on the right focuses on was during a public ceremony. No breaking and entering required. False dichotomy.
Do you regard the spitting on people, and the shoving bullhorns near peoples’ ears to be free speech? I have seen this. And reliable people I know have told me they were kicked and tripped. Does this also constitute speech?
posted by Brian Miller on
Do you regard the spitting on people, and the shoving bullhorns near peoples’ ears to be free speech? I have seen this. And reliable people I know have told me they were kicked and tripped. Does this also constitute speech?
Physical contact without permission of the contacted is assault — specifically, it’s battery. Speech is public expression in a public place (or your own private property), not assaulting another person.
Note that Phelps was not charged with assault — no physical contact was made, bullhorns weren’t placed next to someone’s head to induce pain, etc.
Phelps was sued because he had an unpopular message, and the jury was urged to award damages to “send him a message” about how much they disagree with his political views. And as wrong as Phelps’s views are, abusing government power in such a way is even more wrong.
posted by Jordan on
“Phelps was sued because he had an unpopular message”
No. Phelps was sued because he defamed someone both in person and on his website, and because he harassed people. It’s quite simple, really — can’t imagine how you’d have such a problem understanding the core issues here.