ACLU Fights For Anti-Gay Phelps Clan

The BBQ Pit
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[QUOTE=Captain Amazing]
It does say that, true, but it’s not as black and white as you’re making it. The government can still pass laws saying I can’t say “fuck” on the radio, or hit on a twelve year old for sex, or tell you I’m going to kill you, or tell an al Qaeda member where in the football stadium to plant a bomb so he won’t get caught.

All of that is the government abridging my freedom of speech. But we’ve decided that those abridgements of my freedom are neccesary for the good of the society. The problem with the ACLU is that too often they’re absolutist.
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Most of what you’ve written here really isn’t covered by the first amendment, Amazing. Hitting on a 12 year old falls under rape and child endangerment crimes. Consorting with the Al Qaeda member involves conspiracy to commit murder and terrorism charges. You missed the shouting “fire” in a crowded theater" and laws governing minimum distances from family planning clinics that abortion protestors can gather.

I agree that the first amendment isn’t absolute. We have laws prohibiting speech when it poses an immediate danger as well as laws that prohibit assembly when it robs someone else of his or her constitutionally protected rights (such as the right to get an abortion). That in no way applies to what Phred is doing.

You ju-u-u-u-ust might have a point somewhere with your example about saying “fuck” on the radio. Think about it, though. Think about where you’re going with this. Take a good look at this administration and tell me that you want them to have more control over what you can say and where you can say it. Personally, I’d like to see the government wield a little less power over speech, not a little more.

I mean, Phred’s message constitutes political speech, does it not? Are you really sure you want to go down this road? I sure don’t, and the ACLU doesn’t either, and therefore, I don’t want to see any political speech ruled obscene. Bad idea, that.

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[QUOTE=Linty Fresh]
Most of what you’ve written here really isn’t covered by the first amendment, Amazing. Hitting on a 12 year old falls under rape and child endangerment crimes. Consorting with the Al Qaeda member involves conspiracy to commit murder and terrorism charges. You missed the shouting “fire” in a crowded theater" and laws governing minimum distances from family planning clinics that abortion protestors can gather.
[/QUOTE]

But they’re not covered by the first amendment because we’ve decided they’re not covered by the first amendment. We’ve decided that the risk that the 12 year old will be raped outweighs somebody’s freedom to talk dirty to the kid, for example. I think that’s a good decision for our society to make, and I’m sure you do too, but it’s still a restriction of speech.

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Would restricting the minimum distance protesters could picket a funeral be all that much different than restricting the minimum distance protesters could picket an abortion clinic?

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[QUOTE=Linty Fresh]
I mean, Phred’s message constitutes political speech, does it not? Are you really sure you want to go down this road? I sure don’t, and the ACLU doesn’t either, and therefore, I don’t want to see any political speech ruled obscene. Bad idea, that.
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To answer the rest of your question, I don’t think his message does constitute political speech, anymore than it would, if I went up to you at your wife’s funeral and screamed “Your wife was a goddamn communist whore and she’s burning in hell!”

Obviously, in both those cases, it’s obstensibly political speech. Mr. Phelps is saying that the US is suffering because we don’t persecute gay people to his satisfaction, and I’m saying that I suspect your dead wife to have been a communist whore and that was bad of her, and that she’ll be punished in the afterlife. However, in neither case is the purpose really to encourage political debate, nor is it to expose the viewers to an alternate point of view. The purpose is to harass vulnerable people at a vulnerable moment and to upset and offend them.

Of course, at times, political speech can be upsetting and can offend people, but I think a distinction can be drawn between speech that happens to be upsetting and offensive, and speech that has the primary purpose to upset and offend. Mr. Phelps has the right to hold any views he wants, and express those views, no matter how obscene they may be. He doesn’t, and shouldn’t, have the right to disrupt funerals and bother mourners.

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[QUOTE=Carol Stream]
No need to show enthusiasm. After all, Democrats “vote the right way” most of the time. :rolleyes:

I find the concept of “voting the right way” to be chilling, I guess YMMV.

CS
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Funny. I was just thinking that I find the concept that our constitutionally-guaranteed rights may be curtailed when convenient chilling. In fact, I find the fact that there’s people who consider giving up our fundamental rights to be a legitimate political view rather chilling. If you don’t realize that there’s a right way and a wrong way to vote on issues of our fundamental rights, then you are tacitly declaring that you think totalitarianism is a legitimate and acceptable form of government. I find it chilling in the extreme that there are people out there who are so intent at limiting the rights of others that they consider limiting their own rights an acceptable price.

I guess the chills are the price we pay for living in a democracy, eh? At least I can take comfort in my support for the organization that’s doing the most to protect Americans’ rights.

This, though, I rather agree with. While I generally favor the ACLU’s actions, in this instance I’m somewhat troubled. There’s a long history in constitutional law of recognizing certain limitations on where and when and how people may exercise their freedom of speech, even it public places; in this case, I fail to see the danger in these laws. Though I do find it telling that no laws were being made when Phelps was just protesting the funerals of us queers.

I guess the question is whether these laws are content-based restriction or not; laws restricting speech on the grounds of its content are always subject to strict scrutiny (if I remember right). I think there’s a reasonable case to be made that these laws are time-place-manner restrictions, but I’m not sure what the exact legal mechanism for distinguishing between those two types of laws are. (Hell, I think these laws could pass strict scrutiny, but perhaps I’m biased.)

Sorry, but this strikes me as rather a naïve and absolutist interpretation of the first amendment. There’s a very long history of placing reasonable, necessary limitations on people’s rights to free speech. Such restrictions are not in themselves a violation of anyone’s civil rights.

I’m no lawyer, but this, again, strikes me as reflecting a profound ignorance of the actual restrictions placed on free speech and the history of first amendment jurisprudence.

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[QUOTE=Captain Amazing]
To answer the rest of your question, I don’t think his message does constitute political speech, anymore than it would, if I went up to you at your wife’s funeral and screamed “Your wife was a goddamn communist whore and she’s burning in hell!”
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And if he did that, I imagine that would constitute criminal harrassment, and he could be arrested and prosecuted under existing laws. The fact that what he is doing is different I suppose lies in the fact that we don’t prosecute him under that and, in fact, we need to make up a whole new law restricting his rights.

Oh really? What if someone out there decides that burning a flag constitutes a “primary purpose to upset and defend”?

I don’t, nor have I ever, made the claim that freedom of speech is absolute. The difference between Phelps and the restrictions on the first amendment that we discussed above is that Phelps is not doing anything illegal. He’s not recklessly endangering lives. He’s not trying to solicit sex from a twelve year old. He’s not standing in front of an abortion clinic physically preventing women from entering, as is their constitutional right. What he is doing is causing grief, but not feeling grief is not a constitutionally protected right. Like it or not, he’s operating within his constitutionally guaranteed rights.

Please show me where I’m ignorant of the issues. Seriously. If I’m wrong, I’m wrong, but it sure looks like you’re trying to censor for content to me.

This is censorship, pure and simple. You are prohibiting Phelps and the WBC from peaceful assembly merely because you don’t like the message. The ACLU opposes censorship. So do I. So does the constitution.

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Linty, what are your thoughts on this?:

[QUOTE=Duke of Rat]
Would restricting the minimum distance protesters could picket a funeral be all that much different than restricting the minimum distance protesters could picket an abortion clinic?
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[QUOTE=Linty Fresh]
Please show me where I’m ignorant of the issues. Seriously. If I’m wrong, I’m wrong, but it sure looks like you’re trying to censor for content to me.

This is censorship, pure and simple. You are prohibiting Phelps and the WBC from peaceful assembly merely because you don’t like the message. The ACLU opposes censorship. So do I. So does the constitution.
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If you really do have a thorough understanding of the issues, I’d love an explanation - citing case law - of why exactly this counts as content-based rather than time-place-manner, as I mentioned before. I’m not clear on exactly how the answer to that question is determined - is there a widely-recognized test that would treat these laws as content-based restrictions? And that’s presuming that it would be unconstitutional if it were content-based; as I mentioned, I think a case could be made that such laws pass strict scrutiny, in which case even if they are content-based, they’re legitimate.

This is, of course, based on my own very limited understanding of restrictions on first amendment freedom. I’m not a lawyer; nevertheless, I’m not sure most lawyers would consider the issue as simplistically as you are. If you view the issue as nothing more than “prohibiting [Phelps’ clan] from peaceful assembly because [of] the message”, then I suspect you don’t really have the constitutional chops to understand the issues in question. Which is not something I fault you for, since I don’t either. But my own suspicion is that these are much more complicated issues than you even recognize; further, I think this supposed “censorship” would strike most people as much less so if they had a more complete understanding of the context surrounding it and the historical application of other restrictions on speech.

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[QUOTE=Excalibre]
This is, of course, based on my own very limited understanding of restrictions on first amendment freedom. I’m not a lawyer; nevertheless, I’m not sure most lawyers would consider the issue as simplistically as you are. If you view the issue as nothing more than “prohibiting [Phelps’ clan] from peaceful assembly because [of] the message”, then I suspect you don’t really have the constitutional chops to understand the issues in question. Which is not something I fault you for, since I don’t either. But my own suspicion is that these are much more complicated issues than you even recognize; further, I think this supposed “censorship” would strike most people as much less so if they had a more complete understanding of the context surrounding it and the historical application of other restrictions on speech.
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Well, when you get a better cite for your assertions than your own private thoughts on the matter and some vague references to “history”, let me know, OK? In the meantime, I have done some research into the cases, and here’s what I’ve come up with.

Well, let’s examine some of these decisions which uphold the laws on minimum distance from abortion clinics.. The most clearly stated decison I could come up with on short notice is Portland Feminist Women’s Health Center vs. Advocates for Life, Inc. From the court:

That is not what’s happening with the Phelpses here. They are not depriving anyone of equal protection of the laws. They are not injuring anyone or harming property, and they are not depriving anyone of his or her rights. What they are doing is being total shitbirds, but they’re going about it legally. Again, it’s not like I don’t understand your point of view, and I sympathize with it. I really really sympathize with it, and I wish I could support this law, but I can’t.

I can’t, because out there right now are a bunch of shitbirds even bigger than the Phelpses who would love to see these laws passed. Then they can use these laws as precedents to form new laws. Laws which redefine obscenity. Laws which say things like how you’re not allowed to picket the president when he passes through your town. Laws which say things like how no one’s allowed to burn a flag for fear of hurting a veteran. Laws which govern free speech in a time of war. You had better believe that there are a lot of right-wingnuts out there, who are aching for the chance. Don’t give it to them, OK?

Constitutional rights don’t disappear all at once. They go a little bit at a time, over years. You pick a hot-button topic which gets everyone worked up to the point where they’re willing to undergo anything just to see the mean, bad, evil thing go away. Whatever it takes. Then suddenly you wake up and there’s a drug exception to the fourth amendment. Or the flag burning amendment fails by only one vote. Things like that. Let the Phelpses have their picket. Their time will come soon enough with or without the law. They might be vile and insane, but then again, so is monkeying around with the constitution.

The ACLU is right on this one.

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[QUOTE=Linty Fresh]
Well, when you get a better cite for your assertions than your own private thoughts on the matter and some vague references to “history”, let me know, OK? In the meantime, I have done some research into the cases, and here’s what I’ve come up with.
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Do you see me making any “assertions” here, beyond the fact that this situation is more complicated than you’re pretending?

I still find it somewhat amazing - even though it’s become sadly predictable - how resistant so many people around here are to the very concept that many questions are complicated and many matters have two legitimate viewpoints. It’s amazing, furthermore, to see how often people with no particular education within a given field feel confident enough to assert their own poorly-informed opinions as actual facts.

I have enough knowledge of the area to recognize that your claims about the law are lacking. If you see no problem with opining about a matter you don’t really know anything about, then so be it. Hopefully there are some people around with some actual knowledge of the area, because I’d love it if someone could explain some of the facts behind the situation.

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[QUOTE=Captain Amazing]
To answer the rest of your question, I don’t think his message does constitute political speech, anymore than it would, if I went up to you at your wife’s funeral and screamed “Your wife was a goddamn communist whore and she’s burning in hell!”

Obviously, in both those cases, it’s obstensibly political speech. Mr. Phelps is saying that the US is suffering because we don’t persecute gay people to his satisfaction, and I’m saying that I suspect your dead wife to have been a communist whore and that was bad of her, and that she’ll be punished in the afterlife. However, in neither case is the purpose really to encourage political debate, nor is it to expose the viewers to an alternate point of view. The purpose is to harass vulnerable people at a vulnerable moment and to upset and offend them.
[/quote]

I strongly believe you are correct in your summary of Phelps’ real motivations, but the problem is, how do you prove it? What sort of test do you use to determine if any particular instance of speech has a “legitimate” purpose, or if it exsists only to “harass vulnerable people?” And how do you craft such a test to include the Phelpses, but exclude speech that is simply inflammatory and unpopular?

Perhaps such a distinction could be drawn, but I feel very strongly that it shouldn’t be drawn. I’m not a 1st Ammendment absolutist, but I do believe that the only valid reasons to abridge any expression of free speech is when not abridging it would lead directly to the loss of life, or to the prevention of someone else exercising their civil liberties. The Phelps’ protests do not endanger the lives of anyone attending the funeral, and the Constitution does not guarantee the right to a peaceful burial. Even if a law could be crafted narrowly enough to only target this specific situation, with no danger of it expanding to cover other instances of speech, it would still be a bad idea.

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[QUOTE=Excalibre]
Do you see me making any “assertions” here, beyond the fact that this situation is more complicated than you’re pretending?

I still find it somewhat amazing - even though it’s become sadly predictable - how resistant so many people around here are to the very concept that many questions are complicated and many matters have two legitimate viewpoints. It’s amazing, furthermore, to see how often people with no particular education within a given field feel confident enough to assert their own poorly-informed opinions as actual facts.

I have enough knowledge of the area to recognize that your claims about the law are lacking. If you see no problem with opining about a matter you don’t really know anything about, then so be it. Hopefully there are some people around with some actual knowledge of the area, because I’d love it if someone could explain some of the facts behind the situation.
[/QUOTE]

So show me where my knowledge is lacking. The difference between us, Excalibre is that I admit that I’m not an expert, and then I actually go out and browse Lexis/Nexis and actually read the cases and decisions. You just kind of sit there and whine about how no one understands how unknowable everything is.

And I do actually recognize that there are two points of view on this, or did you miss

right here in the thread? If you want to debate, debate. If you want to sit there and sulk, that’s OK too, but I’m going to call you on it.

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[QUOTE=Linty Fresh]

I don’t, nor have I ever, made the claim that freedom of speech is absolute. The difference between Phelps and the restrictions on the first amendment that we discussed above is that Phelps is not doing anything illegal. He’s not recklessly endangering lives. He’s not trying to solicit sex from a twelve year old. He’s not standing in front of an abortion clinic physically preventing women from entering, as is their constitutional right. What he is doing is causing grief, but not feeling grief is not a constitutionally protected right. Like it or not, he’s operating within his constitutionally guaranteed rights.
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Well, he’s clearly doing something illegal now. You just don’t think it should be illegal.

Look, there’s a time and a place to protest, and funerals aren’t that time and that place, and I don’t think the founding fathers intended the first amendment to allow people to disrupt funerals. I know you’re worried about some slippery slope where this law turns into laws banning any political protest anywhere, but that’s not what we’re talking about here. Protest before the funeral or after the funeral. Protest outside the 300 feet restriction.

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BTW, the OP’s idea of showing this to conservatives to make a point about the ACLU won’t work.

Why? Because apparently, many conservatives think that Phelps is leftist, or “has more ties to the Left than the Right.” This has something to do with his support of Gore in '00 and some other stuff that I don’t know about (not counting the snarky “the ACLU supports them, so they must be” thing).

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One other strike against this law: I don’t like the idea that Fred Phelps is important enough to affect the political discourse in this country one way or the other. Crafting a federal law just to spite him gives him far more recognition than he deserves.

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[QUOTE=Linty Fresh]
So show me where my knowledge is lacking. The difference between us, Excalibre is that I admit that I’m not an expert, and then I actually go out and browse Lexis/Nexis and actually read the cases and decisions.
[/QUOTE]

Actually, it looks like you two have that much in common:

Of course, most people don’t have access to Lexis/Nexis, so that is most likely a legitimate difference between the two of you, but not one that can be fairly held against him.

While I’m here, I also want to throw out a “Right on!” to the last few paragraphs of this post. Very well said.

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[QUOTE=Captain Amazing]
Protest before the funeral or after the funeral. Protest outside the 300 feet restriction.
[/QUOTE]

That’s what I don’t get about the planned parenthood clinic law. If protesters are physically restraining people from entering, then that’s a broken law, not the speech. If speech can’t stop a funeral, I don’t see how it can stop somebody from walking in a door. If we are concerned about whittling away at freedoms, looks like this is as much a start. And again, if you are talking about getting physical, then that’s not 1st Amendment territory.

And I’m not so hot about banning Phelp’s speech, it was just the comparison to abortion protesters that got me wondering.
**Portland Feminist Women’s Health Center vs. Advocates for Life, Inc. ** seems to say that the protesters were doing more than just speaking. I think it’s the trespassing and injuring part that got the courts riled up. That’s not protected under the 1st Amendment.

The abortion protesters can still protest, just not directly in front of the clinic. I don’t see why Phelps couldn’t be told to protest some distance from the funeral (while wholeheartily agreeing that one group should not be important enough to warrant special laws, it would appear that Advocates for Life were indeed deemed this important. Again, I don’t think that was because of speech).

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It’s complicated and I haven’t read through all of it, but this page from the Library of Congress’ Annotated Constitution covers Supreme Court law for issues like this one (including detailed discussion of laws concerning abortion clinics.) It’s worth a look for people interested in this issue.

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[QUOTE=Duke of Rat]
That’s what I don’t get about the planned parenthood clinic law. If protesters are physically restraining people from entering, then that’s a broken law, not the speech. If speech can’t stop a funeral, I don’t see how it can stop somebody from walking in a door. If we are concerned about whittling away at freedoms, looks like this is as much a start. And again, if you are talking about getting physical, then that’s not 1st Amendment territory.

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In the spirit of the OP, it would be interesting to see on which side the ACLU stood during this fight.

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[QUOTE=The Swan]
In the spirit of the OP, it would be interesting to see on which side the ACLU stood during this fight.
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Here’s a Wall Street Journal editorial addressing the (national) ACLU’s stance on anti-abortion protesters. The title, “ACLU Backs Free Speech for All — Except Pro-lifers,” should pretty much sum up the editorial’s argument.