The Phelps Specifically/Limits of Free Speech in General

Inspired mostly by the current and the many previous Phelps/Westboro Baptist Church threads.

In case there’s anyone here who somehow doesn’t know who the Westboro Baptist Church, it’s a cultlike fellowship in Topeka, Kansas not affiliated in any way with any branch of any mainstream Baptist church [Primitive, Southern, Missionary or otherwise]) comprised mostly of members of the family of the pastor, Fred Phelps, his many children and grandchildren and in-laws, and a few others who have joined. They love to picket at funerals. Originally it was gay funerals (the name of their web site is God Hates Fags dot Com), most notably Matthew Shepard’s, but when that got boring and stopped getting media play they expanded it to the funerals of service men killed in Iraq and Afghanistan, politicians, celebrities, and notable people of any sort of fame, the jist of the protest always due to some tangential link or other to that person being in hell (as evidenced by signs with pictures of flames) due to their approval of sodomy (as evidenced by stick figures having anal and oral sex) and all manner of general insanity. Among the famous people whose funerals they’ve protested due to the decedent’s undying and unabashed love for gays and gay sex are such well known gay rights afficianados as Jerry Falwell, Bernie Mac, and Mr. Rogers.

Last year they picketed the Maryland funeral of a (heterosexual) soldier killed in Iraq, Corporal Lance Snyder. Snyder’s father sued them for

More info on the details of the lawsuit here. The Phelps were, obviously, guilty as hell and damned proud of it.

The judge reduced the punitive damages to $2.1 million for a total verdict of $5 million. If I’m not mistaken the case is undergoing appeal and other legal delays (the Phelps clan contains many lawyers), the clan has refused to post bond several times, their assets have been appraised, but no actual verdict has been paid.

Okey dokey then- many here on the Dope and elsewhere have lambasted this verdict. I don’t believe any of the people who have protested it have believed the Phelps were justified- people as far right as Rush Limbaugh and John Hagee and Pat Robertson have denounced them as lunatics and fanatics- but those opposed to the verdict see it as an assault on freedom of speech. “Today it’s somebody we all hate and agree is vile” being the argument, “but tomorrow it could be the person who criticizes the President or says that evolution isn’t real or disagrees with any majority view.”

I understand their points, and I am not a lawyer, but I disagree with this. I believe the verdict was justified, I hope it bankrupts Westboro Baptist, and I do not think that the verdict in any way is a danger to the First Amendment rights of the Phelpses or of anybody else.

My justifications (again from a non lawyer and non Constitutional scholar):

—I would agree that 1st Am. rights were abridged if the Phelps were punished for merely expressing their views, but they were not. They were punished for their actions, which is a different thing altogether. They are free to preach in their church, listen to, print, circulate, publish to the web, talk about on radio or television, etc., pretty much anything they wish to believe or disseminate regardless of its content (so long as no person is physically harmed obviously).

—They were punished because of, to quote the charges of the suit, intentionally inflicting emotional distress, invasion of privacy, and defamation.

—Lance Snyder was not a public person and his family was entitled to grieve him without interference of the sort the Phelps provided.
I proposed in the other thread some sort of a “Last Respects” law- one that would essentially forbid anyone to interfere visibly or audibly with the mourning process during and at a location visible and or audible from the obsequies (from visitation to the funeral). This does not mean they cannot demonstrate to their hearts content in another part of town- one street over even, or demonstrate standing in the cemetery itself [so long as they have permission from the cemetery owner] an hour after the service ends. They can hire Samuel L. Jackson himself to personally yell “Yeah I’m glad they’re dead I hope they burn in HELLLLL!” at the top of his lungs on any street corner in town so long as it’s not

1- during the funeral
OR (not and even, just OR)
2- in view and hearing of the mourners

While I realize that standards are legally and practically different for public figures, I believe that even public figures are entitled to privacy in such moments. As much as I loathe Ann Coulter, if she were capable of love and a friend or relative were to die (Matt Drudge uploads a virus perhaps, or if the jackal who whelped her under the Coulters’ front porch was hit by a car) I still think even she- just as a human being (at least in appearance) is entitled to grieve in peace DURING THE FUNERAL RITES; again, snark to your heart’s content on the Internet, on the radio, on the television, on a soapbox a mile away even.

My reasons for proposing this, other than common decency, are actually practical:
1- it creates a possible traffic hazard
2- it is potentially incendiary- emotions trump reason as often as not and you’re deliberately provoking somebody when their judgment is probably not at its best
3- it is psychically and emotionally damaging- you’ll get over a slap in the face much sooner than you will such behavior

Some see this as being against free speech. I do not- I don’t believe that the intent or the spirit of the First Amendment is to allow bullying, which is what this is. What sayest thou?

Moving the matter forward, I know that Texas and other states have “fighting word” laws. Basically, if somebody calls me a “child molesting motherfucking Nazi” in San Antonio and I respond by slugging them, there’s a really good chance (if I’m not mistaken) that if the person I slug presses charges I’ll be acquitted as justified. Has the constitutionality of these laws been challenged?

Paparazzi: Britney Spears in complete breakdown mode could not go to a single appointment without having to walk through a swarm of reporters. They chase her car on their scooters, they taunt her and other celebrities to get a reaction [and when they get one, such as “When Sean Penn Attacks”, they’re apt to sue and win], and they flock so thickly that they have been unintentionally backed into/had their toes run over/etc… A paparazzi can stand on a public street with a telescopic lens aimed through the hedge row of a celebrity, take photos of the celebrity walking around naked or with their baby or having sex or whatever IN THE PRIVACY OF THEIR OWN HOUSE AND NOT IN PUBLIC VIEW [at least not to the naked eye] and legally sell the photos and the photos are legally not invasive of privacy nor are they a matter that the public has a vested right to know about (i.e. it’s not the same as if the person were shooting a photo of a Congressman taking a bribe or a drug deal). These are protected under the First Amendment. Again, I just don’t think that’s the spirit or even the letter of the Founding Fathers (who lived a half century before there even photographs, let alone telescopic lenses) and Princess Diana’s death alone should have proven forever just how much of a nuisance and hazard these people potentially pose.
So, should- in your opinion- the First Amendment apply to paparazzi such as those described above? Is saying you can’t take telescopic photos of a celebrity breast feeding her child (or breast feeding her pet tiger cub or her 90 year old Japanese gardener for that matter) really abridging the freedom of the press? Is standing on a street corner screaming at the mother of a murdered child “Your son is burning in hell like all faggots!” peaceable assembly (certainly there’s no violence, but allowing paparazzi to swarm unstable celebrities like jackals after a gazelle would seem no more an extension of coverage than saying “screaming hateful talk to emotional people to intentionally cause them distress” is not ‘peaceable’.

Holmes famous quote in mind-

-where, in your opinion, is the “FIRE!”?

A link to the Pit Thread in case anyone’s interested.

I think you ask about a half dozen complicated and inter-related questions in the OP. Invasion of privacy, defamation, fighting words and intentional infliction of emotional distress are all separate and complex ideas. Trying to discuss them all at once is going to lead to conflation and confusion.

How about starting with just one? Are you most interested in where to draw the line on invasion of privacy, defamation, fighting words or intentional infliction of emotional distress?

I fundamentally disapprove of what Fred Phelps says, but I will defend his right to say it until anyone ever wants to infringe upon it in any way. Then they can just go ahead; we’re cool.

Freedom of speech is just that. The ability to converse and exchange ideas. It is not the freedom to annoy. Phelps does not have the right to disturb the peace and his actions clearly do that at a funeral.

We use to have clowns like him show up at the College I went to and when they started flinging insults a fight would immediately ensue.

I posted my feelings in the pit thread but I’ll repeat here. I don’t care if they speak freely, but they seek out the emotionally distraught for personal gratification. they believe that the more hate the outside world flings at them the better they must be at doing gods will. They intentionally inflict pain on others to feel good about themselves. I don’t think that’s a 1st amendment right

the really creepy bit sets in at 1:20

I’ll repeat something I said in the Pit thread as well: If it is illegal to intentionally cause emotional distress, a whole fuckton of Dopers are guilty. Life is emotional distress. I can be sorry that Phelps causes it and think he’s a horrible person and a waste of oxygen, but I can’t agree that anyone’s feelings should be protected by law.

While there probably are legal “wrongs” that he did, I still prefer an enemy who’s loud and obnoxious. I don’t think a lunatic outside the funeral home would bother me too much (though we don’t “do” funerals in my family, so it wouldn’t be an option for the Loonies).

I do, however, sympathize with those who hold these ceremonies dear. It truly sucks, but the general idea of being allowed to be a loud and hateful prick is an unpleasant component of free speech in general. I also don’t believe we should be “pissed off by proxy”. If the object of the wronging is dead, I’m not sure the family should be suing. This is a stranger being a lunatic. Not someone whose statements could ever be construed as “possibly true.”

That said, I too hope they run out of money and crawl under a rock forever. Unfortunately, I think the only rock strong enough to hold them down would be a headstone.

It’s not illegal to intentionally inflict emotional distress, but it is tortious. And in some states, including Tennessee, it is tortious to neglegently inflict emotional distress.

I said before that the various laws recently crafted to protect funerals seem well suited to handle this. They typically bar protests from a certain distance around the funeral and procession for an hour before and after the ceremony.

Now, before people get their panties in a bunch over this - let’s remember that protests are constrained in other ways - laws saying they can’t interfere with classes in session in a school have been found constitutional, for example, as have laws barring picketing of a private home. For these reasons it is likely that these laws are likewise constitutional. The Phelps clan will still have ample space and time to protest, but the funeral will have its space and time as well.

If anyone can look at these laws and tell me how they can be held unconstitutional, please let me know. I don’t see it. And free speech absolutists on the boards here ought to explain how the First Amendment rights of the funeralgoers are preserved without such a law. Let’s remember that they have rights of worship and speech and assembly as well - shouldn’t government attempt to maximize their ability to make use of these?

I say yes.

I and others discussed constitutional issues surrounding these protests in this earlier thread.

I’d need to look at the laws in detail first. They make me nervous, but so do all government speech restrictions, and some are jsutifiable.

My response is to your second point. The government is responsible for ensuring that it does not restrict your rights to free speech/worship/assembly. It is not necessarily responsible for ensuring you can exercise those rights. We let private citizens curtail the First Amendment rights of other private citizens all the time.

We are typically a bit leery when a mob does so, aren’t we?

Since you’re in Virginia, as am I, we’ll start there. The state responded to this matter by amending the disorderly conduct statute to include funerals:

Sorry, Mr Moto, I wasn’t clear. I don’t mean to say that the Government should stand back and allow interference with FA rights by private citizens. My point more is that it should be analyzed in a very different way than government restrictions.

But I am pretty much floating as a result of major cold medication right now… :stuck_out_tongue:

My initial scan is that it will probably pass constitutional muster, but I don’t think it should. The funeral part I have less problem with, but it comes very close to Endorsement for me with the protection of church meetings over and above the majority of other public meetings.

Sorry - I don’t see that. The law seems to place them on an equal footing. Keep in mind that “literary society” frankly could mean anything from a book club to a video game club - the law originally was written some decades ago.

If it was treating all meetings alike, it would not need to specify them. Yes it places “literary society” meetings on the same footing as Church meetings, but placing school, literary and religious meetings above, say, union meetings involves unacceptable endorsement in my view. I take a hard core view of SOCAS though, and most courts disagree with me… Their loss.

Sampiro, at least one lawyer agrees with you in general principle. I just don’t buy the First Amendment defense in the Phelps case you mentioned. Also have no problem with a law like the one you suggest to prohibit disruptions of funerals. In my view, it’s a “time, place, or manner” restriction on speech that is reasonable and justified. Really, It’s no different than the “Free Speech Zones” we’ve seen set up outside political conventions recently.

You can’t judge this based on this statute, though - union meetings would be handled in Title 40.1 of this particular code - Labor and Employment. Which you would agree is the right way to go, I’m sure.

These restrictions on labor picketing and counter-picketing are restrained and carry similar penalty- misdemeanor charges. So there you go.