Thursday, March 3, 2011

Hate Speech Protected--As It Should Be

Let's get this out of the way right up front. I hate the decision in the Westboro Baptist Church case just decided by the United States Supreme Court. I agree with it, but I hate it. In other words, like the Justices, I had to swallow my emotions and disgust with the loathsome words and behavior and look to the Constitution as the sole arbiter of the issue.

Subsequent to the decision, I also have to swallow my emotions and disgust with the "Church's" statement that as a result of the decision, they would quadruple the protests at military funerals. But even at that, I still support the decision. As I have pointed out on more than one occasion, I find all hate speech statutes anathema, since the Founders'specific purpose was to protect unpopular and even hateful political or religious speech. Popular or kindly speech needs little protection, but the Founders themselves were threatened and even jailed for speaking out against the King and Parliament. Some of that speech was potentially subversive (and did indeed spur a Revolution) and it was certainly hateful to both King and Parliament.

Though there was no hate speech statute involved in this decision, the issue is the same, and should be the basis in the future for striking all hate speech laws. As one conservative writer said very succinctly, "bags of scum have free speech rights, too." In this case, the matter revolved around a lawsuit in which the plaintiffs had demanded compensation from the religious nutcases for the grief they suffered during their son's funeral. Had these been purely personal attacks, the result might have been different. But the high court found that the major elements of the protests were [crazed] religious statements about matters of public concern.

Follow the logic: These are religious nuts, but we don't distinguish between sane and semi-insane religious groups (if we did, the Muslims and the Scientologists would be long gone). They have loudly expressed their opinion that the public acceptance of homosexuality is calling down the wrath of God on America. The military is always a matter of serious public concern, and the Westboro bullies have magnified their belief by stating that military acceptance of homosexuality by the armed services brings America ever-closer to Armageddon. By constitutional standards that gives us the double-whammy of free speech (on political matters) and religious freedom (condemnation of homosexuality as a sin). The Justices had no genuine choice if they were to obey their oath to preserve, protect and defend the Constitution.

Even the devil tells the truth when it suits his purpose, so I find myself in agreement with ACLU Legal Director Steve Shapiro, who said "The Court's decision properly and respectfully acknowledges the Snyder family's grief. But it correctly holds that the response to that grief cannot include abandonment of core First Amendment principles designed to protect even the most unpopular speech on matters of public concern."

Military families who have objected to the decision have the high moral ground, but miss the entire point of the decision. One spokesman, John Ellsworth, whose son was killed in Iraq, unintentionally included the reason for the decision in his heartfelt attack on it. He said "The First Amendment right that members of the Westboro Baptist Church community haphazardly enjoy is protected every day by the brave men and women whose funerals they protest." Absolutely true, but the emotion understandably overcomes his thinking. Those brave men who gave their lives for the defense of freedom and American values were fighting in large part for those very basic fundamental rights guaranteed by the First Amendment. They didn't pick and choose whom to protect--they protected everyone, including these subhuman hate-mongers. They put their lives on the line for constitutional principles, where most of us will only talk about it.

I have nothing negative to say about Justice Alito's sole dissent except to say that his heart was in the right place, but for once his cool and reasoned support of even inconvenient constitutional guarantees was overcome by emotion. Alito said in his dissent that the actions of the Westboro Baptists were "a vicious verbal assualt which imposed great injury to the Snyders." Again, like every word said by the Snyders and the military families, that is an absolutely valid recitation of the facts, but not an explanation for why the First Amendment shouldn't apply.

The local authorities had done what they could to keep the protesters away from the funeral itself. They set reasonable distances from the gravesite and the funeral service which the protesters obeyed, including the protest limitations, local zoning laws and police directions. I won't repeat what the spokespeople for the Westoboro lowlives said after the decision, since my ulcer is already acting up while I contemplate this constitutional necessity.

I was not so law-abiding when Rev. Phelps showed up in San Francisco to advance his message of hate. The group I was with to greet him were amazed that I still had a strong arm and excellent aim when I hit him with a rotten egg from fifty feet away (I can now admit this, since the statute of limitations has long since passed). There were others who didn't aim as well, but the volume made up for the lack of pitching skills. Phelps cowered back into his car, left the City, and never tried it again. I'm not recommending this for anyone since it carries free speech into illegal physical action, but I'd certainly understand if this were to happen in the future.

Chief Justice Roberts summed the matter up sadly and succinctly: "On the facts before us, we cannot react to [the Snyder's] pain by punishing the speaker. As a nation, we have chosen a different course--to protect even hurtful speech on public issues to ensure that we do not stifle public debate." I hope the high court will be that clear and that concise the next time a conservative forcefully opposes affirmative action and gets charged with a racist hate speech crime for his efforts.

25 comments:

T_Rav said...

In a really twisted way, we should almost thank Phelps and his "Baptists." No matter how divided the country is, when that gang raises their ugly heads, liberals and conservatives can put everything aside and say, "Yeah, that's just sick." The Westboro Baptist Church: agents of bipartisanship.

Tennessee Jed said...

I'd like to say something more profound, Hawk, but your comments are, sadly, perfect and I am in complete agreement (as if that was some rare event) so I'll just say, well done.

Teresa said...

I agree with the decision for the most part... but I believe if a distance can be imposed on pro-life protesters outside abortion clinics then there could have been a certain distance required for these nuts protesting soldiers' funerals. But, I think we need more people willing to stand up with pro-soldier signs to make it tough for these nut jobs to protest near a funeral.

Scott said...

I concur with your analysis. Free speech trumps wrongful thinking and stupidity every time. I also believe that hate speech laws are a threat to all speech and this may slow the race to diminish our rights in that regard.

StanH said...

“I'm not recommending this for anyone since it carries free speech into illegal physical action, but I'd certainly understand if this were to happen in the future.” ~wink-wink-nod-nod~

The ruling was right. Even the despicable have their right of “free speech.”

We have a large military cemetery about five miles from my house on top of a mountain, absolutely beautiful, and in the middle of nowhere. Unfortunately it’s in constant use with, WWII, Korea, Vietnam, and too a lesser extent, current vets. With most of the burials, they are now accompanied by a long train of Vets on motorcycles, blocking any outside access. The Westboro fools attempted a display of idiocy and were treated so poorly “tisk-tisk” they’ve left this area alone, refer back to egg hurling in SF.

JG said...

I'll admit, this is the first I read about all of this, so pardon me for asking a dummy question.

Laws establishing a so-many-foot rule for funeral protests have been around for several years now in various states. Was the purpose of this decision negating those laws?

LawHawkRFD said...

T_Rav: You have an amazing ability to find something good even in a terrible situation. That's a virtue. Not only that, but you actually cheered me up a bit over this.

LawHawkRFD said...

Tennessee: Thanks. T_Rav just cheered me up a little, so I guess it's not a complete loss. I have an additional empathy with the Justices who had to vote their heads over their hearts, since there were several times when I was on the bench that I had to rule based on the law, not what I really wanted to do.

LawHawkRFD said...

Teresa: There actually were restrictions on how close the scumbags could get to the funeral, and they obeyed the rule and stayed behind the police lines. Since that time, several states have written similar laws that require the demonstrators to stay even farther back. Those laws will likely be upheld.

As for counter-demonstrators, so long as they also stay far enough away from the funeral to allow the mourners some decent peace, the real remedy for damnable speech is good speech, and I wish the pro-military, pro-family people the best of everything.

LawHawkRFD said...

Scott: That's sound thinking. Any right that can be taken away from them can be taken away from us. I spent much of my adult life defending criminals--not because I like criminals, but because I believe deeply in the Constitution. There were times that I spent sleepless nights knowing I was doing the right thing, but wishing I hadn't taken an oath that required me to do so.

LawHawkRFD said...

Stan: As they say, "ya got my drift." You can take the radical out of the 60s, but you can't take the 60s out of the radical. LOL

LawHawkRFD said...

JG: There was a "keep away" perimiter law in place, and as I mentioned to Teresa, the grief-terrorists obeyed the law. The high court had to address the issue in its opinion and found that the law keeping the demonstrators away from the funeral itself was procedurally and substantially reasonable and enforceable. Then they found that the evidence had proven that the demonstrators had stayed outside the forbidden area. Some states have now passed laws making that distance even greater. It's a balancing test between the rights of the mourners and the right of free speech combined with the common law concept of preserving the peace. 1000 yards may be OK, but a mile might be too far. That will probably have to be settled on a case-by-case test.

Joel Farnham said...

LawHawk,

What bothers me is how morbid these Westboro people are. They hang around cemetaries on the chance that a military funeral will be held. Last time I checked, they are the only people who like hanging around cemetaries and don't actually have a job there.

Sick puppies.

BevfromNYC said...

I think we are all in agreement that our Justices did their job. They had no choice. I think that it is telling that they did not specify how far away they must stay. Purposefully they left it open because of laws already in place for certain states and so that individual jurisdictions are free to specify their own reasonable parameters.

It is sad that our most sacred rites of funerals are now being politicized. There must be a special place in Hell for someone who would disturb that rite.

LawHawkRFD said...

Bev: But the Phelps family of theologian lawyers says we're all going to hell and they're going to have lots of room in heaven. LOL

The high court also obeyed the rule that it can deal only with the facts before it. They found the local statute to be reasonable and necessary, but that does indeed establish that restrictions on how close the nutcases are allowed to get are valid on their face. Only the full extent of that distance remains to be seen, but the basic concept of maintaining the peace by keeping demonstrators away from the funeral site and the mourners has been firmly established and upheld.

LawHawkRFD said...

Joel: They're far more insidious than that. There's nothing casual or unplanned about their actions. They carefully research military funerals and decide on which ones would give them the most public exposure. And after the Supreme Court decision, they announced (and I believe them) that they will now quadruple the number of funerals they will try to disrupt. For one thing, they will likely research all possible funeral routes to make sure the families see them on their way to the gravesite. That did not happen in the Snyder case, and these subhumans will viciously plan on how to correct that "error."

JG said...

Okay, thanks for clearing all that up. The problem with trying to battle Westboro litigiously is they are not afraid to go to court over anything and everything. It stinks, I do wish they were made liable for millions of dollars, if only because it might slow them down from running to the nearest cemetery, but yeah, sounds like the right decision, legally. Bummer.

LawHawkRFD said...

JG: It's all about what we can accomplish versus what we would really like to accomplish. Every adult member of the Westboro "Baptist" church is also a lawyer. Living proof that both religion and the law can be subverted to serve evil purposes. This requires diligent work on the part of public officials to push the bastards to the limit, with laws that constitutionally defeat their purposes without breaking the law or violating the First Amendment. It won't be easy.

AndrewPrice said...

I agree with Alito. This may be free speech, but we do regulate free speech by limiting the places and times it can be exercised and I see no reason that they shouldn't be able to keep these people away from funerals and make them liable for any emotional harm they cause if they do approach a funeral.

LawHawkRFD said...

Andrew: The local authorities did limit the time and place of the demonstrations, and the majority reviewed the limitations and found them to be constitutional. The bastards complied. The limitations must have been effective, since Mr. Snyder himself testified that he didn't know about the demonstrations until he saw them much later on the Internet. I'm with you and Alito emotionally, but the facts, evidence, testimony and the law in this particular case don't support a conclusion that the First Amendment did not apply.

We both know the dictum that hard cases make bad law. But we also know that cases must be "distinguished." A small change in any of the facts and/or law in this matter could easily have resulted in an entirely different result. Future cases may do just that.

patti said...

law: you wrote exactly what i am feeling, except you didn't muck it up like i might have.

well done, brother.

LawHawkRFD said...

Patti: Thank you. I've been known to do some pretty spectacular mucking myself. LOL

rlaWTX said...

I haven't finished reading this or the responses, but I have a request - could we, as the critics of Westboro, stop giving them credit for "Baptist"????? They claim a Primitive affiliation, but I think even the snake-handlers would refuse them the appellation of Baptist!

(I appreciate T_Rav's air quotes! That's something...)

Rant over.

rlaWTX said...

OK - now I've read it all.

Unfortunately, I have to agree with your summary. I am thrilled everytime I hear about a group of counter-protestors (with or w/o eggs).

I wondered though, could Alito have penned his dissent after he knew the "vote" so that some of the emotional aspects could be addressed? I just seemed odd that he would actually dissent on the cut-and-dried facts arguments. ConLaw was a long time ago, so I was wondering if such a thing could be likely.

And thanks to the rest of y'all for the air quotes, too! [Unfortunately for me the initials aren't any better: for years my father was pastor of, and I attended, a WBC (Westside Baptist)!]

LawHawkRFD said...

rlaWTX: I hope you noticed that I used their title of "Baptist" as little as possible. Not a single Baptist group or convention wants anything to do with these nutcases. It's a shame other Baptists get tarred with the same feather.

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