[QUOTE=Mangetout]
I realise there are many things wrong - in terms of principle - with saying this, but I can’t think of another way to express it: If free speech is so great, why does it always seem that the high-profile notable examples of it consist of vile bollocks like Phred spews?
I mean, I do think free speech is great, it just seems like people generally aren’t making best use of it.
[/QUOTE]
I thought this was a pretty good use of it.
[QUOTE=aliquot]
(I’m a layperson, not a lawyer.) I hear what you’re saying, and it makes some sense. I know the First Amendment was established to prevent the government from hauling me away if I say, “Fuck Bush.” I also know that, if I say that in front of a Young Republicans meeting, they can yell “Shut up!” at me until they’re hoarse, because they’re not the government.
But – and here’s my ignorance – isn’t the court system part of the government? They’re essentially saying, “OK, the government can’t stop you from saying that God hates fags, but it can put an $11 million price tag on such actions.” Isn’t that, de facto, essentially the government halting my ability, since I’m not a multi-millionaire, to yell “God hates fags”?
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Good point. Under Shelley v. Kramer, it is possible for Phelps to argue that, by enforcing the judgment, the government is acting in violation of his Constitutional rights. I honestly don’t know how that argument would fly (it’s my inclination to think it wouldn’t at all), but I wouldn’t dismiss it out of hand.
What would be the practical difference between a restraining order prohibiting a protest and a law doing the same thing?
[QUOTE=aliquot]
dropzone says that what the Phelpses say isn’t protected because they’re “fightin’ words” (that phrase doesn’t need a ‘g’), that is, “[they] are no essential part of any exposition of ideas…” I’d say that the Phelpses are indeed trying to express an idea, to wit, that this country is too pro-gay. The logic that leads them to protest military funerals because of this country’s perceived pro-gay agenda eludes me, but there’s certainly a (reprehensible and almost senseless) idea there.
[/QUOTE]
Oh yeah? Well, yer a dumb frog eater! And that’s not fightin’ words because your username implies you are French and, therefore, someone who enjoys eating frog legs, and I am expressing the idea that anybody who would do such a thing is lacking certain mental faculties. 
Rule of Thumb: If a reasonable person would expect that your statement would earn you a punch in the nose, thems is (likely) fightin’ words.
[QUOTE=aliquot]
Separately, I totally get that the Phelps were disrupting the funeral, and were even being dicks about it.
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Interestingly, this ABC News article says:
So, for Snyder, there was no disruption of the funeral, but only afterwards.
If that makes any difference at all.
It might be an issue for an appeal, but in the interim I’m inclined to accept the jury that they felt genuine distress was caused.
[QUOTE=Mr. Moto]
What would be the practical difference between a restraining order prohibiting a protest and a law doing the same thing?
[/QUOTE]
I should think that the first is done on a case by case basis, the second is a blanket prohibition. Basically, the choice of a default position. So, practically speaking, every restraining order would have to be gotten individually, making the process more onerous.
Unless you meant “restraining order” in a general sense – but that would be a law, right?
[QUOTE=Mr. Moto]
It might be an issue for an appeal, but in the interim I’m inclined to accept the jury that they felt genuine distress was caused.
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I accept that too. Still doesn’t mean that it’s a good ruling.
Link to the MPSIMS thread if anyone is interested.
They were found liable of invasion of privacy and intent to cause emotional distress.
How’s this…I live across the street from a black family. I decide to burn a cross on my property, my front yard, in full view where they can see it. Am I liable?
As much as I love the 1st Amendment, I think there’s another angle here. Phelps et al is free to do whatever they want, but they deliberately want to be seen by the families of fallen soldiers/Mr. Rogers family/the parents of the Amish school girls and cause them distress. That crosses the line, IMHO.
[QUOTE=Mr. Moto]
It might be an issue for an appeal, but in the interim I’m inclined to accept the jury that they felt genuine distress was caused.
[/QUOTE]
I’d disagree, but then I (obviously) wasn’t a juror and can’t offer anything other than my opinion.
I think the motivating rationale was that jury members themselves were offended by the WBC (as they should be) and wanted to send a message. I also think that people willing to put abstract principle over personal values (where the two conflict) are few and far between. YMMV.
[QUOTE=ivylass]
I live across the street from a black family. I decide to burn a cross on my property, my front yard, in full view where they can see it. Am I liable?
[/QUOTE]
While inevitable, I don’t think this is a good comparison. A burning cross is itself a historical symbol of intimidation that carries with it the threat of violence. IOW, I think that a much better case can be made for public safety and/or intimidation.
[QUOTE=dropzone]
Oh yeah? Well, yer a dumb frog eater! And that’s not fightin’ words because your username implies you are French and, therefore, someone who enjoys eating frog legs, and I am expressing the idea that anybody who would do such a thing is lacking certain mental faculties.
Rule of Thumb: If a reasonable person would expect that your statement would earn you a punch in the nose, thems is (likely) fightin’ words.
[/QUOTE]
While there’s nothing French about my user name (it’s from Latin), I take your point, but I don’t see it applying here. If I saw a sign that says “God Hates Fags,” I’d probably debate, maybe even argue, scream, and shout with the person. I wouldn’t leap to violence. Now, if someone held up a sign that said “aliquot is a fag,” I might resort to violence. There’s gotta be a difference between picking a fight with a group of people in general and picking a fight with a person specifically.
[QUOTE=ivylass]
Link to the MPSIMS thread if anyone is interested.
They were found liable of invasion of privacy and intent to cause emotional distress.
How’s this…I live across the street from a black family. I decide to burn a cross on my property, my front yard, in full view where they can see it. Am I liable?
[/QUOTE]
Goes to protesting outside someone’s home. There can be laws about that.
OTOH, no neighbors around, you could invite a thousand of your most disturbed friends over to your farm or cabin and have a cross burning, from the looks of it.
The law here prohibits burning a cross on public property in general and on private property with the intention to intimidate. That seems like the right balance to strike.
[QUOTE=Digital Stimulus]
While inevitable, I don’t think this is a good comparison. A burning cross is itself a historical symbol of intimidation that carries with it the threat of violence. IOW, I think that a much better case can be made for public safety and/or intimidation.
[/QUOTE]
Well, I don’t think there’s any ambiguity about signs that say “God Hates Fags” or “Matthew Shepard is burning in hell” or stick figures of men performing anal sex with lines drawn through them. Also, I think Phelps has gotten enough publicity that (sadly) many people know who he is, so he’s also getting to be a “historical symbol of intimidation.”
[QUOTE=ivylass]
Well, I don’t think there’s any ambiguity about signs that say “God Hates Fags” or “Matthew Shepard is burning in hell” or stick figures of men performing anal sex. Also, I think Phelps has gotten enough publicity that (sadly) many people know who he is, so he’s also getting to be a “historical symbol of intimidation.”
[/QUOTE]
The difference, though, is that the burning cross is historically associated with specific acts of violence. While the WBC crowd are offensive as hell, i don’t recall any stories about them accompanying their hateful protests with violent action.
I will concede your point…my cross burning analogy was not appropriate. Still, as I mentioned in the MPSIMS thread, if one is doing something private (a funeral) in a public area (cemetary) can they expect not to be harassed?
I don’t think that matters, though. The point is that there are numerous restrictions on the right to free expression, most of which are long standing and explicitly constitutional.
To hear some people in these Phelps threads, you’d think keeping him a few hundred yards from a funeral from an hour before it starts to an hour after it ends is either an egregiously bad free speech violation or an invitation to a slippery slope to worse.
I don’t see it as either - it fits right into existing case law, from what I see. And while I realize now we’re talking about emotional distress in the civil case vs. the legislation discussed earlier, it is clear that Phelps has to be held accountable for his actions once they stop being reasonable ones - and the test of whether they are reasonable is the law.
[QUOTE=ivylass]
I will concede your point…my cross burning analogy was not appropriate. Still, as I mentioned in the MPSIMS thread, if one is doing something private (a funeral) in a public area (cemetary) can they expect not to be harassed?
[/QUOTE]
It depends, i guess, what the “harrassment” actually consists of.
As Digital Stimulus noted, above, “for Snyder, there was no disruption of the funeral, but only afterwards.”
This seems to confirm the claims of the WBC’s lawyer that the protests were a considerable distance from the church, and did not disrupt the proceedings in any way. I’ve yet to see a news article or a representative of the plaintiffs dispute this claim, so i think it’s reasonable to assume that it’s true.
And let’s look at the complete paragraph from the story linked by Digital Stimulus:
So the person suing the WBC didn’t actually see the protest. Some people at the church did (although it seems to have been far enough away that they couldn’t actually hear it). And “it was splattered all over the newspapers the next day.”
By that standard, he probably could have sued them for protesting against Snyder’s funeral from their home town of Topeka, Kansas, as long as the protest was carried in the newspapers the next day.
[QUOTE=Mr. Moto]
To hear some people in these Phelps threads, you’d think keeping him a few hundred yards from a funeral from an hour before it starts to an hour after it ends is either an egregiously bad free speech violation or an invitation to a slippery slope to worse.
[/QUOTE]
I think exactly that.
How would you prefer a phrasing of a law stopping him? You’ve mentioned that it would fit into case law, so i’m guessing you have a particular style of language you would find acceptable. If you can think of one which I don’t think could lead down a bad road, i’d be all too happy to agree with it.
Would the Phelpers be able to avoid triggering the “fightin’ words” threshold and still be able picket on public property if they waved signs and shouted more general slogans, like “US soldiers are dying because…” instead of “Your son is dead because…” or “God punishes those who do not sufficiently scorn the sin of homosexualty” instead of “God hates fags”?
Even if we somehow got to the theoretical point where Phelps & Co. could not say anything at all, or hold signs that said anything at all, but had adapted to show up on public lands near such funerals wearing t-shirts with some symbol that is meant to represent the idea that “God hates fags”…he and his ilk would still be operating with the same intent.