As the linked article makes clear, there are safeguards available (and successfully used in this case) to insulate mourners from contact with protesters during funeral and burial services. So the whole funeral aspect that gets so much attention actually strikes me as a nonissue. The trigger for this lawsuit seems instead to be what Westboro posted on its website about the dead soldier. And while one can argue that “funerals are different,” it is much harder to argue that websites are different. This is the core of the first amendment. So I think Westboro wins the case and the rest of us add Westboro to our list of blocked websites (as my employer did a long time ago).

The supreme court argument made it sound like the concern to the justices was the individualized message to the particular soldiers family.

I am not sure free speech needs to extend to hateful or violent speech in order to foster a free society. I know this sounds silly, but it doesn’t feel different to me to exercise free speech the way the WBC does and to go around punching people you don’t like in the face. I know there’s a major distinction…but it doesn’t feel different.

Some constitutional scholars think we need to encroach a little bit on what has been considered freedom of religion in order curb hate speech, and I think I agree.

MCQ – I agree in principle, but it seems the legal reasoning isn’t so clear cut.

It the state can restrict the location of the speech in one dimension, can it not restrict the distance of the speech in another dimension? Time is a dimension just like position. If they can create laws restricting speech within X yards or miles, can they not create laws restricting speech within X days of an event?

I’m not arguing for this position, but just wondering how it would play out under that reasoning. The current purist line of thinking, in vogue these days, would seem to imply for consistencies sake we should not restrict the positioning of the speech if we are also not willing to restrict the timing.

It kind of makes me wish for the days of judges who based rulings on what was morally sound in principle, and then used proper reasoning in support of the principle. Rather than making consistency or arguments to “logical extension” as the basis for the rule of law. Of course it’s all very tricky and requires an even handed approach no matter what you do.

You can’t make it ineffective in directing at a particular event with regard to timing, but you can in location? It doesn’t really add up, but that’s fine as it’s ok by me to establish some lines in the sand.

1. Last Lemming – interesting, but to the points below yours, when does free speec turn into hate speech and when should that be restricted?

2. Jeff Bennion – I like your statutes as they give some clear boundaries :)

3. cantinflas – I think you make a good point here – “I am not sure free speech needs to extend to hateful or violent speech in order to foster a free society. I know this sounds silly, but it doesn’t feel different to me to exercise free speech the way the WBC does and to go around punching people you don’t like in the face.”
However, where does one draw the line? One persons hate speech is another’s free speech…

CS Eric – I think you bring up a good point – where does one draw the line here?

EEO statutes apply only to the workplace. Obviously, this is not a workplace situation. And none of the federal EEO statutes protect against discrimination on the basis of sexual orientation. This is not a discrimination case, it’s a tort case. “Hate crime” laws are a completely different category. I don’t think there are any hate crime laws that apply to this situation.

“You can’t make it ineffective in directing at a particular event with regard to timing, but you can in location?”

No, you can’t. You can restrict location to a certain extent, but just as with time restrictions, you can’t overburden the right to speak. Thus, these people still got to protest near the funeral, but not right at the funeral, and the motorcade was rerouted so as to not pass the protesters directly. It seems to me that’s the best you can do.

I know we all hate what the WBC is doing here, and rightly so, but if you care about first amendment freedom (and we all should) you can’t just protect the speech you like, you also have to protect the speech you hate. Otherwise, no one really has any protection at all.

MCQ,
But can you prevent them from piggy backing on the name and image of a soldier? Can anyone who wants start saying horrible things that have no basis in fact about people that aren’t in the public eye? Could the Salt Lake Tribune pick a random member of the public and blindly assert that they died because a moth beat its wings in China? And then harp on this supposed fact for days, months, or years? Can an organization pick a living person at random to persecute in order to draw attention to their pet issue? At some point it is the irrational persecution that brings the media which allows their other message to be heard. Can anyone who wants to piggy back off of and persecute someone that is not a public figure?

arJ, I’m not sure what you mean by “piggy backing.” The WBC is using the funerals of soldiers as venues to assert their religious view that God is punishing America for the sin of homosexuality. You can and should disagreee with their idiotic beliefs all you want, but to say that they cannot say it, or that they cannot use those funerals as a venue to say it, is to restrict the content of their speech in an unconstitutional way, in my opinion.

I think what you’re really asking is whether the venue of this particular soldier’s funeral is integral to th econtent of the speech. In this case, I think it is, because they’re not just choosing venues at random, they’re choosing these vnues because they actually believe these deaths are happening as a result of homosexuality. That’s part of the belief they’re asserting. So it’s not random or particularly attenuated from the content of their speech.

But if you’re asking whether it would be protected speech if they did choose funerals or or venues at random, I think we have a tougher question. Then the “time place and manner” restrictions could apply because the venue for the speech would not be at all integral to its content.

I understand that it’s on the website, arJ, but what’s the argument that the website should be censored? I thought your objection to the speech was that it was taking place in such a way that it was harassing the family at the funeral of their son.

“Nobody else sees any connection whatsoever”

So if nobody else believes in God, then you can’t talk about it? Since when is that a standard for constitutionally protected speech? Speech that people agree with doesn’t need protection, it’s the speech that the majority disagrees with that we have to go out of our way to protect, otherwise we’re all in trouble.

I think Sotomayor was just making sure that they articulated the connection. She’s not saying that people have to agree with the connection for it to be protected.

I agree with John. I don’t the legalities, but isn’t the law different for civil cases–less strict? It does seem like the family should have some recourse. The news stories have made it look like this happened at the funeral and I felt such outrage at the thought. How dare they call themselves Christians?

I don’t know what will happen here in this life, but when that minister bites the dust, he’s going to get a huge wake-up call when he has to watch and feel every pain he’s inflicting on these families. He’s so screwed.

I don’t know, mcq, when you come after grieving families like that, it takes on a new dimension. I think there should be a law against this. I’d also be concerned that sooner or later, this level of unjust hatred directed to survivors is going to bring some violence.

Oh that’s terrible. When I was in Washington, Arlington is the place that moved me the most. I started crying the moment we entered. Taunting people when they’re burying their children should be illegal.

Too bad I wasn’t in Virginia, I would have slashed the tires on their bus, poured sugar in the gas tank and busted all the windows out…. and that’s only because the meds the V.A. gives me make me calm and even tempered. I can’t see any unwanted precedent being set by legally keeping those losers from getting the negative attention they thrive on.

That actually makes sense cantinflas, but isn’t allowing civil suits against speech still a restraint on speech? You’re the one who just had con law, you tell me!

Why isn’t this considered harassment? Or libel?

I think that SUNNofaB.C.Rich is kind of on the right path on how to deal with these people, although I’d advocate attacking them in ways that are a little more legal. I’ve never understood how a group that infuriates so many people can basically do what they do with little to no opposition. Why not give these people a taste of their own medicine?

Brent, I’m not sure exactly what you’re advocating, but I think you may be on the right track, if what you are saying is that people should speak up and say they are insane. Protests directed at their church, if they are large enough, could make a difference.

This reflects the fact that the remedy for speech you disagree with is more speech, affirming the things you think are right and showing why the thing you are disagreeing with is wrong. That’s a lot better than trying to pass laws to restrain speech or filing lawsuits. No civil lawsuit is going to stop the WBC from doing what they’re doing, and they probably have few assets, so no one will ever collect any money from them anyway.

Yeah, nasa, beating them up will solve everything.

So far, I can’t see any legal reason for stopping these wackos from pursuing their hateful and misguided protests. Maybe Glenn Beck could give them some pointers on how to make money out of their twisted notions of reality.

Well, if the media would refuse to cover them, that would probably do a lot.

These protests are vile and sickening on so many levels. Of course, WBC has been doing this to gay people for years and no one said anything until they started doing this kind of vile thing to soldiers. Nothing surprising there. Perhaps the Supremes will limit their protests to highly restricted areas. During the Bush presidency, protesters were only allowed to protest inside of chain link cages, set well away from Bush. What was good enough for Bush protesters should be good enough for WBC.

This isn’t the produce section, nasa. Labelling it “organic” doen’t make it ok.