Actually, I overreached here; sorry. Some folks certainly claim that their refusal to endorse a particular reading of the second amendment points to hypocrisy, but you may not have been making that implication. If you weren’t, I apologize.
Daniel
They don’t. The ACLU’s defence of NAMBLA was not in any way tied to a criminal prosecution for child molestation. If you screwed your niece and tried to get the ACLU to help in your defence, you’d be shit outta luck, because underage sex isn’t a civil right. What the ACLU defended was NAMBLA’s right to try to change the laws, which is a right every American has, no matter how vile or repulsive that change may be. The reasoning here is, if the state can punish someone for advocating something as unpopular as pederasty, then the state can punish someone for something else unpopular, such as (in an earlier era) civil rights for blacks. Or in this era, civil rights for homosexuals. The principle that brought the ACLU into the NAMBLA case had absolutely nothing to do with NAMBLA’s goals. They were advocating that NAMBLA has as much right to engage in the political discourse of this country as any other organization.
This seems really bizarre. If you support free speech, you have to give up your right to exercise it? Huh? If your life mission is to support people’s right to speak their mind, why on Earth would you restrict it to the court of law? The court is the last recourse. If you can avoid a court battle (and the massive tax payer expense attendent to that) by convincing your opponents that they’re wrong, isn’t that a good thing? The ACLU, as has been pointed out, is neutral when it comes to political party. They’re not neutral on the subject of free speech: they have a very definite opinion on it, which is why they devote so many resources to defending people’s first ammendment rights. And the best way to defend them is to make sure they never come under attack in the first place.
Right. And?
I have no idea what you’re talking about here.
The whole point of the ACLU is that they routinely help organizations with which they disagree. Do you think the ACLU supports the goals and beliefs of the KKK? The ACLU does have a definite, explicit agenda. On these issues, they are not neutral, and have never claimed to be. However, they are neutral in how they apply that agenda: everyone has the same right to free speech, no matter how repulisive that speech may be.
duffer, let me ask you this-do you believe that defense attourneys support murder, rape, robbery, etc?
This is a good point, and it’s one which has been bouncing around my head for most of the day.
I’ll take it one step further, in fact. So protesting funerals outrages you? Makes you see red? Makes you want to put the entire WBC in gen pop? In a crazy sick bizarro world kind of way, that’s a good thing.
It’s not good because I wish you or the mourners pain. I wouldn’t wish that kind of pain on anyone for anything in the world (Except for on the Phelps clan, of course. I’d happily wish them that kind of pain for free. OK, maybe for a beer, but a cheap beer). I think it’s good, because when you feel that pain, when you feel that outrage, then you finally begin to get a sense of what the first amendment really means.
Finally, you begin to understand the view of a veteran who watches some punk college dropout burn the flag. You begin to identify with a holocaust survivor in Skokie Illinois who has to pass by a demonstration by Neo Nazis. You feel the pain of a born-again Christian mother who learns that there is now a porn shop on her kid’s way to school. You finally realize that the First Amendment isn’t just some pie-in-the-sky cure-all to help make a better life for everyone by opening the world up to constructive criticism. It is that, but it’s also a guarantee that everyone gets to speak his or her mind, even the shitbirds, the freaks, and the criminally weird. Quite often the First Amendment stops being this glorious beautiful ideal and becomes this–roadblock to a decent America. It’s still a beautiful ideal. It’s just that beautiful ideals sometimes lead to ugly consequences.
It’s easy to tout the beauty of the First Amendment when the controversy in question surrounds a bunch of losers who are so stupid and inept that exercise of their rights hurts their cause more than it helps (such as with the Neo Nazis and the Klan) or surrounds a figure with whose cause you might actually agree (such as Larry Flynt’s right to sell and distribute pornography). It gets quite a bit harder when you’re faced with someone like Phelps, a disbarred lawyer, and his spawn (quite a few of whom are active lawyers–very active lawyers) who actually know the law and how to push the envelope without breaking it. That’s when standing up for their civil rights becomes quite a bit harder.
That’s why I follow this situation so avidly. It’s like nothing else I’ve ever seen, and I’ve seen my share. I also think that however it turns out is going to set the tone for a lot of future political protests both for good and bad causes. This is an important one, IMHO.
Though I am a gay person I still say Fred Phelps has a right to express his homophobic insanity, and I congratulate the ACLU.
There is an exchange in the play “A Man for All Seasons” that I think has always described the situation of the ACLU perfectly.
Thomas More’s son-in-law Will Roper insists that he arrest someone who is plotting against them.
More replies that there is no law that would allow him to. And that he would not arrest him without law were he the Devil himself. To which Roper angrily asks if More is now willing to give the Devil benefit of law.
And, what, More asks Roper, would you do?
I would strike down every law in England to get at the Devil, replies the hot-blooded son-in-law.
And when you had done so, asked More, and the Devil turned on you, where would you hide, all the laws being flat?
Does anyone know if this exchange really happened or is it just an invention of the playwright?
I don’t share the ACLU’s postmodern trepidation towards making value judgements. I think value judgements are a good thing. More importantly though, I think in deliberately seeking to spurn value judgements you are inevitably making them. By choosing scumbags over good guys you making a value judgement. It’s seldom so black and white, but you’re choosing this Phelps guy is pretty damn clear.
Well, what can you tell about the merits of Phelps’ case? You really haven’t responded to the second part of my question to you where I argue that Phelps isn’t really exercising his freedom of speech here. He’s simply asserting the right to disrupt other people’s freedom.
Why would you defend this? Why would you assert that Phelps has the right to disrupt other people and interfere with them in the exercise of their rights?
Here was the original question I asked a page ago:
"Don’t the people who wish to bury the soldier have a right to free speech, too. Isn’t Phelps’ protest impeding upon the rights of the people to have a perfectly lawful ceremony without being harassed or impeded?
It seems to me that you guys are saying that Phelps has a right of free speech to disrupt other people’s exercise of their right to free speech.
Phelps doesn’t have a right to walk into a performance in a state owned auditorium and disrupt whatever Opera or activity is occuring.
Why does he have the right to disrupt this activity?"
Here is my follow up to your response:
"Well, it seems to me that the whole point of Phelps’ display is to disrupt the funeral. If it wasn’t he wouldn’t need to do it at the funeral, would he? He could just have a parade, or rent a hall and protest anywhere he feels like that doesn’t interfere with the funeral. This isn’t satisfactory to him because his exercise is dependant upon creating a disruption that garners him the publicity. Let’s face it, he’s a dumbass and if he was just protesting in his Church or on his own time without disrupting a funeral nobody would give a shit enough to pass a law to stop him. He is only of interest in that he is purposefully disrupting a ceremony and the free speech and right to gather and mourn of others.
I don’t think he has this right.
I think it’s pretty obvious, and I truly can’t understand why the ACLU thinks the courts need to specifically look at this further. It seems obvious (but I’m not a legal eagle.)
Isn’t there some poor retiree having his home swiped by emminent domain for a shopping mall who could use your resources? A single mother being coerced into sex as a condition of employment? Or some other worthy cause?
What goes into the decision to redirect resources from worthy causes where liberties are being violated to defending a piece of shit who is both spewing hate and actively trying to interfere with the rights of others? Shouldn’t you be on the side of the funeral goers whose rights are being abbreviated and interfered with by Phelps?
It seems wrong to me. I know that the ACLU does a lot of really good and necessary constitutional work preserving freedoms for everybody. Some of it, some of what you do is distasteful but necessary. I see that, and I laud that.
I have a real problem backing the ACLU though because it seems to me that an awful lot of the cases they seem to take are taken because they are high profile and controversial and don’t really stand on their own merits. It almost seems to me like you seek out these counterintuitive cases from time to time in order to say “Hey look, we’ll defend anybody’s rights. We really are impartial.”
Which would be good if the case had merit and was important in it’s own right, and it was really upholding the freedoms of everybody. I think you guys did the right thing with the KKK. Now though, it seems like you’re making the opposite argument for Phelps.
C’mon, why not defend the good guys?"
In this post you are only reacting to my last sentence, but I’d really like to understand Phelps’ case and why it has such constitutional merit and why he has the right to impede other people’s rights to such a degree that the ACLU feels it necessary to defed.
Ok. That’s good.
I can see that, and I even understand why the KKK was defended. I don’t understand this case though.
It seems to me that Phelps simply wishes to disrupt other people in the expression of their rights.
I don’t think he has the Constitutional right to interfere with other people’s exercise of their rights, and I can’t understand why the ACLU would think he does and seek to defend it.
If I could work my will (and it’s just as well I can’t), that would be one of the two texts everyone would be required to have tattooed on the inside of his/her eyelids. The other would be by Pastor Niemoller.
As to your question, I’ve only heard of that exchange in the context of the play and movie. Which doesn’t prove More didn’t say it (or something similar); but given the volumes written by and about him, I think it’s likely an invention by Bolt. From what I understand, though, it’s probably consistent with More’s views.
They do make value judgements, though. And in their judgement, the first ammendment has almost unparralleled value. Far more valuable, in their judgement, than the satisfaction of shutting up psychos like Phelps or the KKK.
Can you give some examples of “good guys” who have needed the aid of the ACLU and not received it? Especially when it comes to free speech issues? There’s really not a lot of people out there trying to suppress speech that’s popular and well received (Unless you count the FCC. I can’t think of a better received message in the history of modern media than Janet Jackson’s nipple.) The ACLU is naturally more concerned with speech that’s in danger of being suppressed. Some of the time, this is still the good guys. The ACLU has been a big ally in the fight for gay rights, for example. But the vast majority of this kind of speech is going to be stuff that genuinely repulsive: racists, bigots, sadists, kiddie-diddlers, and the like. The ACLU is out on the frontier of free speech, because the farther out we can hold the line, the safer our liberties are. If Phelps right to protest funerals is protected, our right to call the president a fucktard is immutable.
I don’t agree that he’s disrupting anyone else’s free speech. He’s not allowed on the graveyard grounds themselves. That’d be trespassing. The mourners are able to go through with the burial ceremony, simply not in as serene an enviroment as they would like. Which sucks, absolutely, and Phelps is a fucking monster for behaving the way he does, but he’s not actually stopping the burial from proceeding or preventing anyone from speaking.
I’m sure there are. What makes you think the ACLU isn’t helping them, too?
You’re taking it as a given that everyone agrees that the funeral go-ers rights are being abbreviated. If Phelps were actually preventing the funerals from occuring, that would be a different story, and I’m sure the ACLU would be on the other side, just as they were over the issue of abortion clinic protestors.
And if you think the ACLU doesn’t have enough resources to cover all their cases, go write them a check.
I would say that the funeral is analogous to many other functions, such as a concert in the park. One does not have the right to disrupt the performance.
I would agree that Phelps has the right to say whatever he wants about these funerals or protest them in public. He does not have the right however to interfere or disrupt them.
His actions do disrupt and interfere with the funeral and the attendees right to attend a peaceful ceremony. They shout and chant and protest in such a fashion that they disrupt the ceremony and the attendees’ appreciation of it.
It’s exactly the same as if I went and stood outside a public concert at a park and blew off an airhorn. I’m disturbing the peace.
I’d prefer to write the check to an organization where I felt that it was doing the most good. For me, that’s therapeutic riding, and the burn center of a children’s hospital. I’ve donated a horse and done some volunteer work, and to me there’s no moral ambiguities about a burned kid in pain and no moral ambiguities about putting a kid in a wheelchair on top of a horse and taking him for a ride.
There’s a bunch of starving people in Africa I haven’t done anything about. There’s a whole bunch of poor people on death row. There’s entire neighborhoods and ghettos with schools of such poor quality that the children born into the communities have zero opportunity of getting the education that are tax dollars are supposed to guarrantee them. Aids and cancer need a cure.
There is a company by the name of Northfield Laboratories. They designed a blood substitute. A few years back they started testing this on heart transplantees and those people had a high level of heart attacks compared to the control group of transplantees that didn’t get the substitute.
It turns out that Northfield didn’t figure that most transplantees were white, and wealthy and would sue.
Now they are ready to test again. What they’ve done is a “negative consent” in certain poor ghetto neighborhoods near Duke medical center. They can test their new formulation on trauma victims without informing them or gaining their consent and even when they get them to the hospital they can deny them regular blood for 24 hours and keep them on the blood substitute.
They are poor and black and not likely to have the resources to understand or protest or sue if there is a bad outcome.
The only way to opt out is to attend a poorly advertised meeting or make a trip to the hospital, get a special opt out bracelet and where it 24/7.
Once we get this shit fixed I’ll worry about Phelps and consider sending the ACLU check.
Jesus, are you serious, Scylla? What the fuck-that can’t be legal. (The “negative consent” thing).
Like I said, the ACLU DOES indeed defend the “good guys”-it’s just not considered newsworthy. Someone pointed out where they defended students bringing Bibles to school and sharing them, or what not, or students praying on their own time.
Not true. His protests do, or should, fall under the category of political speech. He’s protesting the war in Iraq. He’s claiming that God is smiting soldiers because there are homosexuals in the army…or America…or, well someplace, and he’s mightily perturbed. I’m not really claiming to understand the logic behind this man. I have no earthly clue how he’s arrived at his conclusions other than multiple concussions but what he’s saying MUST be protected under the First Amendment.
Indeed, political speech is usually afforded the highest levels of protection we give to speech.
So if the speech is protected, should we give him free reign? No. As I’ve said before, it’s a balancing act. Like all things in the law, we must weigh the interests of both sides and ultimately arrive at a compromise in the middle.
I would never support the physical interference of a funeral. I also don’t believe protestors should be allowed on the funeral grounds itself if the owner of said property disagrees with it.
But look at the opposite stance. The law as it stands makes the entire point of a protest irrelevant. No one will hear what you have to say an hour before or an hour after. If you do nothing about the law you are saying someone’s right to say something in a public space can be eliminated. And that’s really what the outside of a cemetary is: public space.
Let’s move further away from a funeral. The town square is a public place. All around it are shops going about their business and people moving to and fro. None of them particularly want to listen to a protest today. Can we enact banning protests in the town square? Are the rights of the businesses and townsfolk more important than the rights of the protestors? If you answer yes, then I must ask: where CAN we hold a protest where no one would…ahem…protest?
Also, if you’re unsatisfied with my responses so far, I may have the opportunity on Thursday to run by the ACLU’s office and ask the executive director what his stance rationale on this is. I can’t guarantee that I’ll be able to make it, or that I’d even be able to post his response once I got it. But I’ll try.
No, no it’s not.
It’s good to protect free speech. I’m with you all the way when you wish to protect the rights of the Klan to hold protests, or the WBC, or any other horrible group that wants to organize a demonstration. However, there is nothing “good” about that kind of speech.
This is an attitude I’ve been seeing more and more lately, and it’s troublesome. The attitude seems to be that outrageous, hateful speech is something to be celebrated - that it’s a wonderful victory for free speech when people say these things.
It’s not. The KKK and the WBC and NAMBLA and all these other groups are the unfortunate side effect of protecting free speech. There is no right more important in a free society than the right to say what you want to say. But everything that springs forth from that right is not automatically good; we protect these kinds of speech because it’s important that the worst kinds of speech are permitted - the government cannot be trusted to make value judgments on which sorts of speech are good for society and which aren’t. This right is absolutely sacred to the notion of democracy. But it’s nonsense to pretend that the results of the right are also sacred.
At its logical extreme, this kind of muddled thinking leads to the notion that the most offensive kinds of speech are somehow those most to be celebrated, simply by virtue of the fact that they are offensive to decent people.
Fundamentally, I believe that true freedom of speech is a positive thing. But there’s no virtue in merely stretching the bounds of what society tolerates. Ugly speech has to be permitted because we cannot trust any government to make acceptable decisions as to what constitutes “dangerous” speech. Nor do I believe that there are many ideas that are, in themselves, dangerous. I believe wholeheartedly that the Westboro Baptist Church should be permitted to share their ideas.
But speech isn’t merely ideas. In linguistics, there’s a term performative speech that describes speech that is not only communication but actually constitutes a separate act. For instance, “I now pronounce you man and wife.” And the same with the WBC’s pickets. The principle behind these laws is not to prohibit them from expressing their sentiments about God and his opinions regarding fags. The point is to prevent them from performing an act - harassing those grieving the death of friend or family. There is nothing sacred about their harassment of people who are at their most vulnerable. They are free to organize protests outside the Capitol if they wish, and they’re free to espouse their beliefs the same way other groups do. They should not be free to publicize their cause by victimizing people who are already suffering.
I don’t see why they should be permitted to share them by picketing funerals. People here have been suggesting that prohibiting them from doing so constitutes some serious limitation on free speech - but what limitation? Their ideas don’t require a funeral within a thousand feet to be heard. For those making slippery slope arguments, remember that there already are limits to when people are allowed to protest. If they showed up to have a protest in the middle of the night, they’d be violating the law. Why? Because it’s understood that the importance of free speech coexists with other rights. Is the right to a good night’s sleep really more important than the right to peacefully grieve for someone who has died?
What do we lose as a society by banning protests at funerals? It’s not a particularly onerous restriction on free speech. It’s less onerous, in fact, than many others. All sorts of restrictions exist as to how a protest may be lodged. Why is limiting them to protests away from funerals so chilling to free speech, when limiting them to daytime isn’t?
The fact is that laws against protests outside of funerals are not an attempt to restrict the content of speech - merely the circumstances in which it can be expressed. Rules like that are old hat; suggesting that somehow this one particular restriction is the first step down a slippery slope ignores the fact that we’ve apparently been walking along this path for decades, and the slope shows no particular signs of slipperiness. There are real threats to free speech out there - permitted zones to protest the president’s actions are a great example. But this? No way. This is a minor restriction on people’s free speech, one that makes perfect sense. It’s a restriction that accomplishes something good. It’s a much smaller restriction than those already in place. There’s no moral imperative that compels us to allow people to picket funerals. The right to free speech is sacred, but not all speech is sacred in itself; no argument I’ve seen gives me reason to distinguish between these laws and all the other ones in place that restrict protests to appropriate times and places.
These people are scum, and their message is the speech equivalent to a load of horse manure. But that’s not important; what’s important is that they are using that message as a weapon against innocent people. They have the right to share whatever ideas they like - but they don’t have the right to use those ideas as an excuse to bully the husbands, wives, children, parents, and friends of the dead in their time of mourning. What the Constitution protects - and what reason itself protects - is the sharing of ideas, not the use of speech as a club to beat people with. Nothing is lost to us by banning funeral protests - nothing worth keeping, anyway.
I didn’t take Linty’s fresh comment in the same way at all. I understand his/her comment to mean that being outraged is a good thing. Being outraged, yet still protecting their rights to say those things which outrage you, is indeed a good thing.
Cite?
Linty’s fresh comment. Heh, I like it.
And yes, that’s what I meant.
And who said anything like that here? Certainly not me.
I don’t celebrate what Fred Phelps has to say. I celebrate the fact that he has the right to say it, and when you learn to distinguish between the two, you’ll celebrate also.
If you had actually read my post properly, you would have seen that I draw a stark contrast between the two things. I tend to use long words; I will remember, when discussing things with you in the future, to make sure to write at an appropriate reading level for you. Nevertheless, if you’re going to make snarky comments at me for disagreeing with you, you would do well to figure out what I said first, as this one is rather clearly inapplicable.
A stark contrast, huh? Let’s connect the dots:
First off, no one’s saying that the results of the right are sacred. We all know that Phelps is scum. We also know that certain types of expression are forbidden. We’re not talking about the results of free speech. We’re talking about free speech itself. No one here is saying how much they love Phred protesting funerals, OK? So lets just put that strawman back in the barn.
Along the same lines, no one’s saying that the most offensive kinds of speech are most to be celebrated. My point is that they’re the most to be protected, because when a politico wants to fuck with the constitution, he’s going to go after the people who piss mainstream America off. No one’s really going to give a shit if Phred and co. get screwed. Hell, a large, not-so-nice part of me loves the idea of Fred going to jail. If I read in the paper that goon squad rearranged Shirley Phelp-Roper’s facial features, I’m telling you right here and now that I’d jump for joy. I’m no saint. I’m flesh and blood. And that’s precisely why these guys need their civil rights protected by the ACLU.
Here’s the problem. I don’t think this constitutes harrassment in the legal sense of the term. If it did, they’d be prosecuted for harrassment, don’t you think? As far as protesting at night, sure you’d probably be arrested, but not because “it is understood” that the “right” to a good night’s sleep is important. You’d be arrested for violating noise ordinances and possibly trespassing.
And I have a problem with your use of the passive voice here. “It is understood” By whom? By the Supreme Court? Or by some shadowy Constitution Squad? I’d really like to know who’s understanding what here.
You make shades of distinction which, I confess, I’m unable to see from a constitutional point of view.
There’s no such thing as a minor restriction on people’s free speech. Quite a few of those restrictions (flag burning, abortion clinic protesting) have gone to SCOTUS, and some restrictions have been overturned. I can easily see this going to the Supreme Court as well. Minor? In your dreams!
And with those words, you make the slippery slope argument far more coherently and unsettingly than me or anyone else in this thread.
I think it’s apparent that I wasn’t using the term in a legal sense. The point remains the same - it constitutes the use of free speech less with the intent to communicate and more with the intent of attacking people at their most vulnerable.
Um, right. And what do you think a “noise ordinance” is? It’s a restriction on (among other things) free speech. Just like an ordinance illegalizing protests outside of funerals. The State can enact certain restrictions on free speech - like noise ordinances and laws prohibiting protests outside of funerals. I’m no Constitutional scholar, but as I’ve been saying (and as you’ve been resisting understanding) since I started participating in this thread, time-place-manner restrictions on speech are commonplace in the law; it’s simply not the case that restricting protests outside of funerals represents some bizarre new overreach in contrast with all other such laws.
Let’s look at the sentence more closely: “Because it’s understood that the importance of free speech coexists with other rights.”
I’d say that this is understood by everyone who has passed middle school civics.
If you don’t understand the basic distinction between laws that restrict speech based on its content, and laws that restrict it based on time, place, and manner, then you can get a quick crash course in that particular area here. Read up on the first amendment in general, since it’s obviously an issue you’re passionate about; hell, search Google for pages including “strict scrutiny” and “time, place, and manner” if you need more information on the basics. I’ve referenced this distinction several times already in this thread; I’m surprised you haven’t decided to pursue a bit more knowledge on the subject, now that I’ve pointed out some rather gaping deficiencies in your understanding of first amendment jurisprudence.
Suffice it to say that the “shades of distinction” I make are ones that have been established in numerous court cases over the years. This is precisely why I asked earlier about exactly how one determines whether a law restricting speech is content-based or not, since these are indeed subtle shades of distinction, and I don’t know much about the area. How disappointing to see that someone so clearly passionate about the subject knows even less than I.
It might go to the Supreme Court. Who knows? My only point is that this restriction is minor, in my view, compared to many others.
Are you aware that “slippery slope” arguments are generally considered logically fallacious? Little known fact: that even applies when you agree with the point the argument is making! No, really!
No obvious reason has been given thus far to suggest that restrictions on picketing funerals are any more liable to cause harm to free speech than, say, restrictions on picketing outside private residences (which already exist.)
Let’s look at the sentence, mmm? “Nothing is lost to us by banning funeral protests - nothing worth keeping, anyway.” Now, if you don’t take for granted the (ridiculous) hypothetical you’re making based on an imaginary “slippery slope”, then what’s unsettling about what I said? There are only two possible disagreements with what I wrote. Either something is lost by banning funeral protests - that is, funeral protests serve some good purpose in themselves and must therefore be allowed, or banning funeral protests will somehow inexorably lead to the loss of free speech in other arenas of life. The latter presupposes your slippery slope argument, so that’s right out; the former is a possible point of view but not one I agree with. Either way, it’s simply erroneous logic that leads you to the assertion that this sentence makes your point for you.
Slippery slope arguments are the refuge of the simple-minded. They are an easy way for those who are unable to defend their viewpoint to avoid having to do so. If you can’t come up with any good reason for funeral protests to be permitted, simply argue that this will inevitably lead to a Ministry of Truth springing up to regulate our words! It’s the same way that the Religious Right argues against gay marriage - since there really are no rational arguments against it, just use the irrational slippery slope argument: gay marriage will inevitably lead to forced man-on-dog group marriages!
If that’s the reasoning that underlies your position, you need to engage in some serious reexamination. Free speech is, as I’ve stated, one of our most precious rights. But there is nothing particularly unprecedented about restrictions of this type (in fact, our republic has survived real restrictions on speech a number of times, starting with the Sedition Act of 1798). I certainly don’t wish to argue that the Sedition Act was anything other than a crime against our democracy - but history has shown that our democracy is not as fragile as it’s made out to be.
A restriction like the one prohibiting pickets outside of funerals doesn’t ban any particular type of speech. Fred Phelps et al. will not be in any way prevented from expressing the exact same ideas elsewhere - such a law simply prevents them from their sadistic predation on people who are grieving. Our democracy is not as delicate as you suggest; it does not rest on so narrow a foundation that it will fall apart if we’re no longer allowed to torment people who have recently suffered such a profound loss.
As you may know, we Canadians enjoy feeling smug whenever our American neighbour has a problem we don’t. Like guns or a high murder rate or race riots. But in many cases we have to enjoy our sense of smug superiority while we can, because problems have a way of crossing borders.
However, that said, could I suggest something to you? The Canadian Charter of Rights and Freedoms contains the following in its opening lines:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. ** (emphasis mine).
Now, some people originally predicted that those last words would serve as a loophole for repressive measures, but they have not. Jugements under the Charter are almost always pro-rights and pro-freedom. Polls show that Canadians support the Charter in an overwhelming majority. They have a positive love affair with it.
It is under this Charter that the Courts ruled that gays should have equal access to marriage, for example. The court’s interpretation of reasonable limits that can be demonstrably justified in a free and democratic society tends to be very stringent. The required “demonstration” sets the bar quite high. For example, if you allege that gay marriage hurts the “moral fabric” of society, one of the judges is likely to ask you, with a straight face, to demonstrate how the morals of society are composed of fabric.
But, refusing drivers’ licences to blind people falls under that category. Its justification can be demonstrated.
Maybe what the US jurisprudence needs is to add the concept that your right to swing your arms ends at my face. 