I wrote that phrase with a bit of tongue-in-cheek, because I liked the self-referential quality of “objectively objectionable.” But in fact, the guiding principle is that there must be some violation of an established regulation, rule, or requirement… that is, you must be able to point to some standard that has been communicated to the employee.
[QUOTE=acsenray]
That’s pretty self-serving. Everybody hates Phelps. That’s exactly why his right to express himself in a public place should be protected. Phelps’s message is very political, and reads directly on public policy. The only reason to stifle him would be because you didn’t like his opinion. If you don’t want to hear Phelps’s message, have your funeral in a private place. You don’t have a right to be protected from him.
[/QUOTE]
Nonsense. I don’t dispute his right to picket anything to his heart’s content or to maintain as many websites as he wishes. It’s the deliberate provocation of people who are in a state of bereavement that I protest- no possible good can come of it and I see it as no more his legal right than the right to blast an airhorn outside of a church service.
[QUOTE=ascenray]
As for “intentional emotional distress,” I think anybody who claims to be hurt by the words of a lunatic like him is a self-serving liar. No one with any confidence in their own convictions would give a second thought to Phelps.
[/QUOTE]
Again, nonsense. It can very definitely hurt people to have fools yelling that their glad your son is dead- this has been attested to by the civil suits filed against Phelps. If you’re already in a highly emotional state and somebody’s screaming at you that the person you’re mourning is in hell and was a fag and all sorts of other nonsense, it’s not a matter of agreeing with him but a matter of them trying to bait you and deliberately distressing you. I think the right to grieve without distraction from a lunatic trying to bait you. And most funerals are held at a location that has some connection to the decedent or convenience to the mourners- the desire to not be disturbed is inherent and shouldn’t have to be considered.
Now if somebody passed away at such a time that their funeral procession coincides with a Mardi Gras parade then it’s unreasonable that this should be cancelled on their behalf, but I don’t believe that a law that essentially says “Don’t be an asshole in view of a funeral procession or burial” is any more an infringement on free speech than saying “don’t blast an airhorn at a speech by a politician you disagree with”. It’s deliberately provocative, potentially dangerous (it’s a miracle nobody’s ever opened fire on the nuts) and there are plenty of other venues in which to air your protests.
[/QUOTE]
[QUOTE=ascenray]
In fact, I’m glad that Phelps exists, because he serves as a real test of our free speech convictions. He makes us put up or shut up. And we need that in order to temper any natural tendency to backslide or give in to hypocrisy.
[/QUOTE]
I agree in all save his protesting of funerals. I think a family’s right to grieve and common decency should make a funeral protected. I don’t think that process servers or repo agents should be allowed to act during the funeral service either, it doesn’t mean that I challenge their legal rights to fulfil their duties. I’m not asking for a 6 week hiatus on any kind of harassment, only during the actual funeral, processional, and interrment.
How about protesting outside Karl Rove’s home?
Cheney, when he was VP, lived on the grounds of the Naval Observatory; his “front sidewalk” was a half mile from any public land. But Karl Rove lived on an ordinary street and protesters were able to legally stand some thirty feet from his front door… and they did.
This isn’t theoretical…it happened.
I think, as I did then, that Rove was simply unlucky enough to have to deal with it. The protesters were acting legally.
If Rove’s family was grieving his death at the home, yes, I think it should be illegal for protesters to distract and taunt them. Unfortunately Rove wasn’t dead at the time, so the situations are different.
Right, but neither was Armstrong dead when Shirvell showed up at his home.
I don’t see why a funeral is any different than any other public event.
What brings this to mind is the very public funeral of Pat Tillman. I’m not sure how it happened, but government officials somehow weaseled their way into a role at the funeral, and offended the family by bringing God and Country into it. Thee Tillmans are atheists, and didn’t want to hear about heaven or God’s wisdom or any of that other bullshit.
What I’m saying is that funerals, particularly for public people, get turned into forums to justify and trumpet whatever that person’s cause was when alive. And that kind of event shouldn’t be immune from protest.
Now… if you can make laws to that can clearly distinguish among funerals which are private and should be protected, and which are going to be used as political forums and shouldn’t be, then you have something I can support.
Personally, had I been anywhere near Nixon’s funeral, I wouldn’t have hesitated to carry some sort of protest sign. I thought giving him a state funeral was appalling.
There is no constitutional right to grieve in public protected from the opinions of others. It is not a fundamental right. If you want to avoid the public, you have a right to seek the sanctuary of a private space where those who wish to speak have no right to enter.
Death is not a special case.
In fact, a military funeral held in public is just as much if not more a political statement than it is an occasion for private grief. Again, if you want to grieve privately, don’t have your funeral in public.
[QUOTE=acsenray]
There is no constitutional right to grieve in public protected from the opinions of others. It is not a fundamental right. If you want to avoid the public, you have a right to seek the sanctuary of a private space where those who wish to speak have no right to enter.
[/QUOTE]
“Free speech zones” are also not spelled out in the Constitution but they have been upheld as constitutional in court. How is this different?
This is in response to a comment about funerals. Rove was so two days ago. I’m sorry your pool party with him was interrupted but do keep up.
First, I would find free speech zones to be unconstitutional. Second, in cases in which free speech zones have been established, there have been legitimate concerns regarding crowd control and security that simply don’t exist in the case of the Phelps band. There generally aren’t overwhelming crowds in those situations. Third, free speech zones as argued anyway don’t seek to prevent the speakers from reaching their audience based solely on the content of their speech. Stifling Phelps would have no purpose other than to prevent his speech, based solely on his message, with the purpose of preventing him from reaching exactly the audience he hopes to reach while in a public place.
Which matters not the least little bit unless you’re a federal judge.
[QUOTE=ascenray]
Second, in cases in which free speech zones have been established, there have been legitimate concerns regarding crowd control and security that simply don’t exist in the case of the Phelps band. There generally aren’t overwhelming crowds in those situations.
[/QUOTE]
This is the Phelps clan being attacked at one of their pickets. Their van window was broken and police had to escort them out. There have been any number of rallys where dozens of counter-protesters have arrived. How is it not a potential security problem?
[QUOTE=ascenray]
Third, free speech zones as argued anyway don’t seek to prevent the speakers from reaching their audience based solely on the content of their speech.
[/QUOTE]
Phelps would still be free to protest to his heart’s content anywhere and anytime but for the duration of services in the path of the procession or within earshot of the bereaved.
[QUOTE=Boyo Jim]
Personally, had I been anywhere near Nixon’s funeral, I wouldn’t have hesitated to carry some sort of protest sign. I thought giving him a state funeral was appalling.
[/QUOTE]
Why? Nixon was dead and I’m pretty sure his daughters knew he would have been impeached had he not resigned. There’s any number of books on the topic and airwave screeds on the topic that day I’d have no problem with, but why harass (if not in the legal sense at least in the spirit) his family?
“have your funeral in a private place”.
Can you give an example of public vs private? When I wanted to bury Ma in the back yard, the govermint fellas said i couldn’t.
And a federal judge’s opinion is relevant to my opinion as to what should be constitutional? Or are you only offering the opinions of federal judges in your posts?
That’s not a security problem. That’s simply crime. A security problem is the potential of an uncontrollable crowd overwhelming law enforcement and going on a destructive rampage.
Whether Phelps might become a security problem if anti-Phelps crowds continue to grow is a matter to be seen. Regardless, if security should demand that they be restricted to a protected zone, such zone should be close enough to the funeral so that their message can be heard.
In other words robbing them of the right to speak in a public place at the the and place at which their message can have its greatest impact, based solely on the content of their message.
[QUOTE=Boyo Jim]
Personally, had I been anywhere near Nixon’s funeral, I wouldn’t have hesitated to carry some sort of protest sign. I thought giving him a state funeral was appalling.
[/QUOTE]
Why? Nixon was dead and I’m pretty sure his daughters knew he would have been impeached had he not resigned. There’s any number of books on the topic and airwave screeds on the topic that day I’d have no problem with, but why harass (if not in the legal sense at least in the spirit) his family?
[/QUOTE]
A state funeral constitutes political speech. It is a statement of public approval, of sanction, etc. Counter-speech should be perfectly acceptable. Nixon was a national criminal. If his family wanted to be protected from people protesting the honour granted him by the state, then they should have foregone accepting that honour.
All peoople accepting public honours from the state, whether the families of dead ex-presidents or dead soldiers, are making a political statement. They should expect to be confronted by those who disagree with such statement.
Because the entire point of this thread (other than Karl Rove’s pool party being disturbed) is that what we personally agree or disagree with is irrelevant when discussing the law. I doubt anybody here personally thinks Shirvell’s anything but a nutcase who needs to be swatted like a fly- I don’t even think this is a gay rights issue, I can easily see somebody who’s anti gay marriage and anti gay antidiscrimination thinking he’s a nut- but the issue is has he broken a law.
And this is actually an issue. There are very limited options, especially for families of limited means, in where to hold private services or privately inter their deceased.
A question posed in the OP, if a judge was an active member of the KKK and participated in cross burnings, made no denial of it, was in fact proud to be associated with it- BUT had broken no laws, would his office be protected by free speech? If not, why not?
I don’t think that has been the entire point of the thread. Regardless, your digression on Phelps was entirely opinion. I merely added my own opinion about a constitutional matter.
It depends on what you mean “needs to be swatted like a fly” means.
The vast majority of judges in the United States are elected. I would leave it up to the public to decide. Furthermore, they are not protected by civil service rules.
Re: when harrassment can be constitutionally criminalized –
This area of First Amendment law is poorly developed. The Supreme Court has tried to save sexual harassment laws from First Amendment scrutiny, for example, by fitting them into the fighting words exception to the First Amendment. But no one is really persuaded that “sexually derogatory fighting words,” to use the Supreme Court’s off-handed phrase, is a concept that makes any sense.
Crimes involving speech can be crimes because the target of the prohibition is not the communicative impact of the speech, but some other result. Thus, while offering a public official a bribe is a speech act, the reason it is illegal is that it facilitates a certain kind of transaction which is forbidden. Threats and fighting words are also specific carve-outs from First Amendment protection, with their own independent justifications.
Harassment prohibitions, however, are at least in part (if not entirely) a regulation of communicative impact. And when applied to behavior that is not threatening, it is difficult to find the First Amendment exception that is supposed to apply. Some people think there should be a new carve-out for harassment, just as they believe there should be a new carve-out for hate speech. But I’m not sure you can accomplish either result without suppressing speech that is at the core of the First Amendment.
I would say that being free to grieve in peace in public is as much of an unenumerated right protected by the Ninth Amendment much like the right to privacy to buy condoms.
Unfortunately, the right to protest at a funeral is an enumerated right, so you lose.
I don’t know, but it still confounds me that he can act this way, and not only get away with it, but no one apparently can (or is unwilling to) find a way to stop him. Cyber or not, there are laws against lible, slander, defamation, types of threatening behavior, harrassment and stalking, aren’t there? There’s something seriously wrong when someone can be THIS much of a scumbag and nobody is allowed to do something about, or to him.
One thing IS interesting, they always seem to go after a “safe” or passive target.
And as has been extensively discussed above, none of the actions of this guys quite fit into any of the laws, or if they do are protected by the First Amendment.
Protection Order Against Shirvell Denied
Shirvell meanwhile is threatening to sue the U. of Michigan for banning him from campus.