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It's Ugly, But It's Legal
March 2, 2011 9:27 AM   Subscribe

The Supreme Court has ruled 8-1 in favor of categorizing Westboro Baptist Church's funeral protests as protected speech under the First Amendment.

In the ruling, Chief Justice John G. Roberts writes: "Speech is powerful...it can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. But on the facts before us, we cannot react to that 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."

Chief Justice Alito was the only dissent: "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case."

The crux of the Court's decision seems to have hinged on whether WBC's speech was "private" -- as in, whether they were targeting specific individuals directly -- or "public." Since their "military funeral" protests do not name any specific person, a specific person cannot sue for damages.

In his brief, Chief Justice Roberts does state that "even protected speech is not equally permissible in all times and all places", and affirms that a community's effort to restrict the WBC -- confining them to a specific location, or preventing them from demonstrating a half hour before or after a funeral -- is indeed Constitutional.
posted by EmpressCallipygos (181 comments total) 8 users marked this as a favorite

 
This is a morally awful ruling, but I support it 100%.
posted by reductiondesign at 9:28 AM on March 2, 2011 [76 favorites]


Every once in a while my faith in the "system" is shaken by its inability to actually do the "right" thing.
posted by tomswift at 9:29 AM on March 2, 2011


What a coincidence! Just this morning I ruled 9-0 that the Supreme Court can bite my ass.
posted by Pants McCracky at 9:29 AM on March 2, 2011 [9 favorites]


Chief Justice John G. Roberts
Chief Justice Alito

We have two chief justices!!
posted by kingbenny at 9:31 AM on March 2, 2011


It is an interesting take on the old "you have no right not to be offended" thing which gets dragged out regularly during conversations about free speech.

I have a different view about how our society should work when it comes to speech and where it may be allowed, but I do think this was the right decision by the SCOTUS under our current structure.
posted by hippybear at 9:31 AM on March 2, 2011 [1 favorite]


Assholers gonna asshole, but that's America, yo.
posted by Senor Cardgage at 9:31 AM on March 2, 2011 [22 favorites]


This is a morally awful ruling, but I support it 100%.

Yeah. I was going to leave my own personal commentary in the...comments, but: the court is absolutely right about this, even though I hate that they're right.
posted by EmpressCallipygos at 9:31 AM on March 2, 2011 [8 favorites]


I hate Westboro with a fiery hatred, but this ruling is correct.
posted by rtha at 9:32 AM on March 2, 2011 [14 favorites]


In his brief, Chief Justice Roberts does state that "even protected speech is not equally permissible in all times and all places", and affirms that a community's effort to restrict the WBC -- confining them to a specific location, or preventing them from demonstrating a half hour before or after a funeral -- is indeed Constitutional.

Ah yes, the famous "free speech zones." Or, as they are known in legal circles, time, place, and manner restrictions. I remember fondly the days when American liberals didn't like those.
posted by The World Famous at 9:32 AM on March 2, 2011 [5 favorites]


affirms that a community's effort to restrict the WBC -- confining them to a specific location, or preventing them from demonstrating a half hour before or after a funeral -- is indeed Constitutional.

While the court held that time, place and manner restrictions are allowed, they did not rule on whether any of the funeral protection from protester laws are constitutional:
Westboro’s choice of where and when to conduct its picketing is not beyond the Govern-ment’s regulatory reach—it is “subject to reasonable time, place, or manner restrictions” that are consistent with thestandards announced in this Court’s precedents. Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984). Maryland now has a law imposing restrictions onfuneral picketing, Md. Crim. Law Code Ann. §10–205 (Lexis Supp. 2010), as do 43 other States and the Federal Government. See Brief for American Legion as Amicus Curiae 18–19, n. 2 (listing statutes). To the extent these laws are content neutral, they raise very different questions from the tort verdict at issue in this case. Maryland’s law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional.
posted by Jahaza at 9:32 AM on March 2, 2011 [1 favorite]


...inability to actually do the "right" thing.

The problem is that "right" is subjective. The Constitution should protect any and all speech—even the most vile, disgusting, and loathsome messages. If we only protected speech we agree with, we wouldn't need the Bill of Rights.
posted by reductiondesign at 9:33 AM on March 2, 2011 [11 favorites]


Free speech is an important right, but it has never been without limits, as Roberts himself admits. And now there are fewer.
posted by tommasz at 9:33 AM on March 2, 2011


Yeah, this ruling reminds me of every time someone mentions the ACLU is evil because they once defended a nazi group's right to parade and protest. It sucks to think who is involved in the case, but I support the ruling 100%. Peaceful assembly has to be allowed for everyone in a free country, even if it's those media trolling jackasses from the midwest trying to get headlines. They are clowns, but they aren't breaking any laws.
posted by mathowie at 9:34 AM on March 2, 2011 [14 favorites]


Actually, this is the first time I've ever read through the actual ruling (okay, I've been a bad citizen, I'll admit) -- and it was kind of fascinating. They admit it sucks, too -- but they also lay out exactly why it's Constitutional. And they also point out what other Constitutional means people can use TO curb the WBC.

Although, the "this funeral stuff isn't personal" is now making me wonder whether anyone's sued them over their Matthew Shepard protests -- and whether we can then do that, since this ruling seemed to hinge on "personal/public"?
posted by EmpressCallipygos at 9:34 AM on March 2, 2011


It's the correct ruling.
The First Amendment applies to everyone, even the hateful assholes hiding behind their bibles.
posted by Thorzdad at 9:36 AM on March 2, 2011 [4 favorites]


Interestingly, there is a story on the BBC front page at the moment that a woman has been arrested after standing behind a policeman who had been shot in the face and blinded and saying 'bang bang'. It is not entirely clear from the story what criminal offence she has committed.
posted by biffa at 9:36 AM on March 2, 2011


Free speech is an important right, but it has never been without limits, as Roberts himself admits. And now there are fewer.

Uh, no. The whole point of constitutional interpretation is that the Court has ruled on what the law already was, not made it so that there are fewer restrictions. (And even de facto, they affirmed a lower court ruling and the protest was not restricted from taking place in the first place.)
posted by Jahaza at 9:36 AM on March 2, 2011 [1 favorite]


Yuck but hurrah, yes.
posted by jaduncan at 9:36 AM on March 2, 2011


mathowie: They are clowns

Fight clowns with clowns! (Not a WBC rally, but the tactic could be copied for them)
posted by filthy light thief at 9:37 AM on March 2, 2011 [1 favorite]


I disapprove of what you say, but I will defend to the death your right to say it.

Attributed to Voltaire, but actually from a 1906 book, The Friends of Voltaire by Evelyn Beatrice Hall.

And unfortunately, as much as I dislike the Westboro Baptist Church, the decision was correct.
posted by jgaiser at 9:38 AM on March 2, 2011 [1 favorite]


Great. I'm not even a little sad. Free speech is awesome.
posted by the young rope-rider at 9:38 AM on March 2, 2011 [5 favorites]


Well ... sigh. Okay.
posted by bayani at 9:40 AM on March 2, 2011 [2 favorites]


I support the ruling. It seemed fairly obvious.

And, believe me, when Fred Phelps dies, you best bet I will camp out at his funeral, too. I'll be there, with actual bells on ... my nipples.
posted by adipocere at 9:41 AM on March 2, 2011 [38 favorites]


I bet Roberts tried really hard to get a unanimous verdict here. Too bad about Alito.
posted by OmieWise at 9:42 AM on March 2, 2011


I'll be there, with actual bells on ... my nipples.

you'd better hope he doesn't die in january, then
posted by pyramid termite at 9:43 AM on March 2, 2011 [2 favorites]


I'll be there, with actual bells on ... my nipples.

you'd better hope he doesn't die in january, then


It would be worth it.
posted by L'Estrange Fruit at 9:44 AM on March 2, 2011 [2 favorites]


GOD HATES DICKHEAD JUDGES
posted by londonmark at 9:45 AM on March 2, 2011 [1 favorite]


"Maryland’s law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional."

Actually this is rather what the obiter dicta are for; I'd guess there was more disagreement on this matter behind the scenes.
posted by jaduncan at 9:46 AM on March 2, 2011


This ruling is not correct. Alito called it right (and I shudder when I say that, believe me). This case was not a general test of First Amendment rights. It was about whether the protest at Snyder's funeral (Westboro held two others that day -- this was not about them) constituted a direct, personal assault on his parents (private citizens), with the intent and the result of inflicting emotional pain and distress on them. It clearly did, and additionally it was held with the cynical motive of exploiting that infliction of pain on these grieving parents to promote WBC's public profile and agenda.

The question at issue here was not "free speech in general." It was very narrow, and Roberts's ruling misses the point entirely. This is a shit ruling that does nothing for free speech.
posted by rusty at 9:48 AM on March 2, 2011 [8 favorites]


Free speech either means free speech for ideas you find loathsome or it means nothing at all. Everyone is in favour of free speech for things they like.
posted by ricochet biscuit at 9:49 AM on March 2, 2011 [3 favorites]


If only the court loved the fourth amendment as much as the first and second.
posted by Avenger at 9:50 AM on March 2, 2011 [16 favorites]


I'm disappointed that Breyer separate concurrence suggests that internet postings might warrant different treatment.
posted by jeffburdges at 9:51 AM on March 2, 2011


It was about whether the protest at Snyder's funeral (Westboro held two others that day -- this was not about them) constituted a direct, personal assault on his parents (private citizens), with the intent and the result of inflicting emotional pain and distress on them. It clearly did, and additionally it was held with the cynical motive of exploiting that infliction of pain on these grieving parents to promote WBC's public profile and agenda.

I think it came down to the fact that they may have done all that, but they did not single out Synder specifically, so there was still wiggle-room for them. Granted, it's the public-speaking equivalent of a kid holding his index finger a half-inch away from his sister's arm and taunting "I'm not touching youuuuu!" but...it is indeed accurate that he's not touching his sister. What the SCOTUS is doing is basically the equivalent of saying "you can play the 'I'm not touching you' game all you want, just go do it in the next room."
posted by EmpressCallipygos at 9:52 AM on March 2, 2011 [1 favorite]


There's a Fourth Amendment?
posted by entropicamericana at 9:52 AM on March 2, 2011 [1 favorite]


For example: this decision says that if I go and stand on the public road (making sure to comply with all applicable demonstration regulations) in front of your house, with signs reading, for example, "GOD WANTS YOU DEAD," "GOD HATES PEDOPHILES," "YOUR FAMILY IS PEDOPHILE FAGS" etc, that would be protected, general public speech about issues of important national debate, and not what it clearly is, which is a direct personal and false attack on some private citizens.

That example doesn't even get close enough to the case though, because I'd also have to do it on the day you buried your dead child. But oh well. Important public debate! Issues of general interest! Nonsense.
posted by rusty at 9:54 AM on March 2, 2011 [1 favorite]


Question (and apologies for the derail): Would it be a legal counterprotest to the WBC to completely surround their small knot of protesters with a ten foot tall bolt of cloth (providing there was space to exit)?
posted by qnarf at 9:55 AM on March 2, 2011


EmpressCallipygos: Yes, that's it exactly. Alito comes down on the side of "several of those signs were clearly intended, and would be read by any halfway rational person, to refer directly to Snyder." Roberts glosses over it. I think Alito's right.
posted by rusty at 9:56 AM on March 2, 2011 [1 favorite]


Preserving comedy gold. Good job, court.
posted by awesomebrad at 9:59 AM on March 2, 2011 [1 favorite]


Qnarf: In theory, yes, but you have to be careful about how close you get. Maybe it's easier to raise a 10ft high banner between the WBC and the funeral, blocking their view.

Rusty: referencing Snyder doesn't necessarily make it a personal attack. They're protesting a larger issue and using him as a focal point. It's close to the line, but this isn't about this particular soldier, specifically.
posted by Grimp0teuthis at 10:00 AM on March 2, 2011 [2 favorites]


I agree with Alito. Holy crap.
posted by roomthreeseventeen at 10:01 AM on March 2, 2011 [1 favorite]


Grimp0teuthis: Alito thinks several of the signs were effectively about this particular soldier. I mean, that's kind of the dividing line here -- I'm just saying I think Alito got it right.
posted by rusty at 10:02 AM on March 2, 2011 [1 favorite]


For example: this decision says that if I go and stand on the public road (making sure to comply with all applicable demonstration regulations) in front of your house, with signs reading, for example, "GOD WANTS YOU DEAD," "GOD HATES PEDOPHILES," "YOUR FAMILY IS PEDOPHILE FAGS" etc, that would be protected, general public speech about issues of important national debate, and not what it clearly is, which is a direct personal and false attack on some private citizens.

The "God wants YOU dead" and "your family is pedophile fags" are forbidden. But WBC doesn't say either of those things. They only say the "God hates pedophiles," and leave the "you are a pedophile" and "god wants you specifically dead" out of it.

If they HAD said something like "God wants you dead", then that would have been different.
posted by EmpressCallipygos at 10:04 AM on March 2, 2011 [1 favorite]


qnarf - When the Westboro Church planned to picket the funeral of the 9 year old girl killed in Arizona, a group wore 8x10 foot Angel wings and placed themselves between the protesters and the funeral participants. Free speech again.
posted by jgaiser at 10:05 AM on March 2, 2011 [6 favorites]


rusty: I agree that certain signs were about him, but that's not what the protest is about. If people protested the Fed and had signs referencing Bernanke, they wouldn't be pursuing a personal vendetta against him, they would be using him as a representative for the Fed's policy choices (as well as his personal involvement in the greater institution).
posted by Grimp0teuthis at 10:07 AM on March 2, 2011 [1 favorite]


what most interests (actually, enrages) me is the media continually for the last 15 years refers to this group as a "church". oh sure, that's the name, and the IRS status, but historically in referring to any similar organization, i.e extremist batshit insane dogma, closed membership consisting entirely of an insignificant band of direct descendants, spouses & children of an insane man, zero affiliation/accreditation/credibility, they would be labelled quite correctly & truthfully a "bizarre cult", "tiny sect".

what is the agenda in operation here? have the media ever called the timecube.com dude a cutting edge physicist?
posted by quonsar II: smock fishpants and the temple of foon at 10:07 AM on March 2, 2011 [11 favorites]


I am so sorry about what the family endured here, but ironically the ability of utter jerks to assemble in order to communicate utterly jerky thoughts at an utterly inappropriate time is one of the reasons most soldiers would give for why they are willing to go fight and die.

I too hate this church and their behavior but I think this decision is absolutely right. It is refreshing to see two sensible Supreme Court decisions in a row this week.
posted by bearwife at 10:08 AM on March 2, 2011 [1 favorite]


The Tucson funeral response was a direct echo of the Angel Action which took place in Laramie, WY for Matthew Shepard's funeral.
posted by hippybear at 10:08 AM on March 2, 2011 [3 favorites]


I think Alito's right.

Right here, but in my eyes, "God is going to kill you" isn't a direct threat from a person -- it's disturbing speech, but it's not a direct threat, where as "I'm going to kill you" is.

I think that Alito is wrong there -- if there was a clear pretext to assault, then the right way to shut them up is to arrest them and charge them, not banning the protests as a whole. WBC has been very careful to make sure they stay on the far side of the direct threat line, because of that.

So, either it is a clear threat assault -- in which case, there's no need to ban the speech, because you can simply remove it by arrest -- or it isn't, in which case, you should not be able to ban the speech on the grounds that it's a clear threat of assault, because it isn't.

Stating that threatening that some God is going to kill you is a direct threat to a person is Very Alito -- it's very clearly not what the intent of the original framers was, but despite his "reverence" for Strict Readings and Original Intent, that only applies when he needs it to attempt to shoot down formal rulings he disagrees with.

I'm behind this 100%, and I'm pleasantly surprised to see Thomas join the majority here -- he basically follows the same plan as Alito, and yet, somehow, he gets it right. This was "God is going to kill you", and on first amendment grounds, that not something the government can -- or should -- bar.

(Related: Rulings that "We should overthrow the government" is not Sedition, but "We should overthrow *this* government" is. Unknown -- if Sedition is even prosecutable in the US.)
posted by eriko at 10:08 AM on March 2, 2011 [4 favorites]


Eriko: it's possible to arrest people for "we should overthrow *this* government" as incitement to violence if the language is fiery and specific enough.
posted by Grimp0teuthis at 10:11 AM on March 2, 2011


EmpressCallipygos: “You’re Going to Hell,” “God Hates You,” and “Thank
God for Dead Soldiers” were among the signs. Alito cites these specifically, and makes a good case that they are not about general issues but would be interpreted to refer specifically to Snyder. See page 6-7 of Alito's dissent.

eriko: The question wasn't whether they were threats or pretexts to assault, but whether the statements themselves constituted an assault that intentionally inflicted severe emotional distress. The decision also would not ban the WBC's protests at all. At issue was whether WBC is liable for monetary damages for their assault on the Snyders. Did you read the rulings? They're very interesting reading. Everyone really should read them, especially to clarify what the case is and isn't about.
posted by rusty at 10:14 AM on March 2, 2011


I think my perspective is actually a little different than Alito's, but I would also dissent.

There are already restrictions on free speech. You can't yell fire in a movie theatre. You cannot, as Grimp0teuthis points out, incite violence. Why aren't Westboro's signs considered hate speech?
posted by roomthreeseventeen at 10:14 AM on March 2, 2011 [2 favorites]


This may be the technically correct decision, but I'd be happy if there were a constitutional amendment that said, in effect, you can publish, blog, broadcast, lecture, act, draw, paint, sculpt and email anything you wish, but people get to bury their dead in peace.
posted by Pater Aletheias at 10:17 AM on March 2, 2011 [2 favorites]


It seems likely that a truly effective counter move on the part of cemeteries would be to fabricate, or purchase temporary walls to erect, either at curbside, or around the grave site (create a room) that would block all line of sight from the WBC and the funeral attendees. Additionally cemeteries could go back to building those hyper cool high stone walls.
posted by edgeways at 10:17 AM on March 2, 2011 [1 favorite]


roomthreeseventeen: Hate speech is not illegal. It has to be defamation, incitement to violence, or obscenity before it can be outlawed.
posted by Grimp0teuthis at 10:19 AM on March 2, 2011 [2 favorites]


The protest couldn't be seen from the funeral itself. Snyder testified that he saw the content of the signs only afterward, in TV reports.
posted by rusty at 10:19 AM on March 2, 2011


When the Westboro Church planned to picket the funeral of the 9 year old girl killed in Arizona, a group wore 8x10 foot Angel wings and placed themselves between the protesters and the funeral participants.

That was apparently the plan but didn't actually happen because the WBC protest was called off in exchange for radio airtime.
posted by jon1270 at 10:19 AM on March 2, 2011


When the Westboro Church planned to picket the funeral of the 9 year old girl killed in Arizona, a group wore 8x10 foot Angel wings and placed themselves between the protesters and the funeral participants

The Patriot Guard Riders basically do the same thing, except they use motorcycles.
posted by lullaby at 10:19 AM on March 2, 2011 [1 favorite]


“You’re Going to Hell,” “God Hates You,” and “Thank
God for Dead Soldiers” were among the signs. Alito cites these specifically, and makes a good case that they are not about general issues but would be interpreted to refer specifically to Snyder.
Wait, Alito and (presumably) you are claiming that no one should be allowed to tell someone else that they're going to Hell?

Or that God hates them?

Or to state their opinion that they're glad that soldiers have died?
posted by Flunkie at 10:20 AM on March 2, 2011


Flunkie, I don't think anyone was saying that. What we're saying is they shouldn't be allowed to stay and say that at the person's private funeral.
posted by roomthreeseventeen at 10:22 AM on March 2, 2011


Excellent! Now I can protest outside of any church I want, waving my Look At Me sign. Win!
posted by Old'n'Busted at 10:22 AM on March 2, 2011 [1 favorite]


roomthreeseventeen: You can't yell fire in a movie theatre. You cannot, as Grimp0teuthis points out, incite violence. Why aren't Westboro's signs considered hate speech?

Hate speech isn't illegal. Yelling "fire" in a theatre is illegal for a reason that could not possibly be applied to Westboro's protests. Yelling "fire" when there is no fire in an attempt to cause panic is not considered "speech".
posted by spaltavian at 10:22 AM on March 2, 2011 [1 favorite]


Flunkie: No, not really. What Alito (and I) are claiming is that if you do those things, in a particular time and place judged specifically to inflict severe emotional pain and anguish on some private citizen, you better be prepared to face the consequences of your actions. Nothing in Alito's ruling would prohibit WBC from going right back out and doing the same thing again. He wants to uphold a jury verdict that awarded damages for the result of these actions.
posted by rusty at 10:22 AM on March 2, 2011 [1 favorite]


The whole point of constitutional interpretation is that the Court has ruled on what the law already was, not made it so that there are fewer restrictions.

Assuming you agree with the majority opinion calling it ‘a broad-based message on public matters such as wars’ rather than the targeted attack on Snyder that Justice Alito feels that it was.
posted by tommasz at 10:22 AM on March 2, 2011


The ruling is bad enough, but how awful to it feel to say "Scalia really got it right!"
posted by Blake at 10:23 AM on March 2, 2011 [2 favorites]


I tend to be a bit contrarian on issues like this. Yes, freedom of speech is very good, but the absolutist "all speech must be protected in all contexts or the right is entirely meaningless" position is self-refuting. There are myriad restrictions on free speech today and yet the totalitarian thoughtcrime hellscape remains safely at bay. Indeed, the "correct" decision being celebrated in this thread does nothing to prevent the *real* violations of free speech that are already happening in things like "free speech zones." It should be the other way, if you ask me; you can picket and protest any political events you like in whatever manner you like, but you've got to leave funerals alone.

Slippery slope is still a fallacy; we could institute the perfectly reasonable restriction "leave funerals alone" and just stop there. No good reason to let these folks make sad days worse for grieving people; freedom would, I promise, persevere.
posted by gerryblog at 10:23 AM on March 2, 2011 [5 favorites]


Excellent! Now I can protest outside of any church I want, waving my Look At Me sign. Win!

what was stopping you before this?
posted by quonsar II: smock fishpants and the temple of foon at 10:23 AM on March 2, 2011 [2 favorites]


well... that's two (almost unanimous) rulings so far that having directly pissed me off. I'd actually be pretty interested in hearing the behind the scenes debate the Justices had about these cases, insofar as I wonder if the two recent additions to the court are making any difference.
posted by edgeways at 10:23 AM on March 2, 2011


There are already restrictions on free speech. You can't yell fire in a movie theatre. You cannot, as Grimp0teuthis points out, incite violence. Why aren't Westboro's signs considered hate speech?

The US does not have, or even allow, laws forbidding mere hate speech said in public. There needs to be some other aspect, like an employment situation or a incitement to imminent violence, to make hate speech a crime.

well... that's two (almost unanimous) rulings so far that having directly pissed me off. I'd actually be pretty interested in hearing the behind the scenes debate the Justices had about these cases, insofar as I wonder if the two recent additions to the court are making any difference.

What was the other near-unanimous ruling that pissed you off?
posted by Sticherbeast at 10:25 AM on March 2, 2011 [1 favorite]


gerryblog: I think Alito's position is better than that. Instead of prohibiting some forms of speech, or blocking them from some specific places, let's set a high bar for when speech crosses the line into assault, and then make people who exceed that bar pay the price for their actions. Nothing is being banned here. What's at stake is where "rights" meet "responsibilities."
posted by rusty at 10:26 AM on March 2, 2011 [1 favorite]


Conflating "you have the right to do such and such" with "... but the law will punish you if you do" seems kind of silly to me.
posted by Flunkie at 10:28 AM on March 2, 2011


if you do those things, in a particular time and place judged specifically to inflict severe emotional pain and anguish on some private citizen

But didn't the majority basically affirm that local authority can dictate, to a certain degree, time and place?

It is shitty behavior, WBC seems chock-full of assholes, it is hard to regulate assholes. And I say that as someone who is NOT an absolutist in regards to free speech, I certainly recognize and value careful limitations to it. The ruling seems to affirm that if a line is crossed the "church" can certainly be sued.
posted by edgeways at 10:31 AM on March 2, 2011


Our profound national commitment to free and open debate is not a license for the vicious verbal assault...

I'm wondering what impact it will have when FMRI assays come to show the measurable physical damages in the brains of already traumatized persons exposed to these deliberately hurtful interactions. Wouldn't that transform some kinds of speech into battery?
posted by StickyCarpet at 10:32 AM on March 2, 2011


What was the other near-unanimous ruling that pissed you off?

ah.. christ... I forgot a "not"...

That have NOT pissed me off.

*le sigh*
posted by edgeways at 10:32 AM on March 2, 2011


An 8-1 decision was unexpected, but I have to think part of the reason the conservative justices voted the way they did was an understanding that any limitation they imposed on Phelp's speech was just as likely to be implemented against anti-abortion protesters. If tort claims for emotion distress were allowed for public speech, you can bet there would immediately be several cases filed against clinic protesters by women. Some of the words exchanged in front of clinics is quite vile and highly personal. Someone like Randall Terry would be ripe for litigation. Something tells me the conservative justices' sympathy for that cause weighed against punishing Phelps, no matter their personal distaste for his message.
posted by thewittyname at 10:35 AM on March 2, 2011 [5 favorites]


One of the Phelpses just tweeted this celebratory photo.
posted by CunningLinguist at 10:35 AM on March 2, 2011


Flunkie: I'm not sure it's silly. This is a civil tort case. There are plenty of actions that are perfectly legal to do, but if you do them in a negligent enough manner you can be found civilly liable for the results. I may be expressing the distinction badly.
posted by rusty at 10:36 AM on March 2, 2011 [2 favorites]


The ruling is good. WBC is what's bad.
posted by Eideteker at 10:44 AM on March 2, 2011


CunningLinguist: "One of the Phelpses just tweeted this celebratory photo"

Here's hoping for heavy traffic.
posted by Splunge at 10:45 AM on March 2, 2011 [2 favorites]


what is the agenda in operation here? have the media ever called the timecube.com dude a cutting edge physicist?

What else, money!. And lots of it. Westboro is a giant con. They're trolling the country and getting rich at it.
posted by formless at 10:47 AM on March 2, 2011


This is a good decision. I hate these fuckers more than anything, but this is exactly how the First Amendment is supposed to work.
posted by Ironmouth at 10:49 AM on March 2, 2011


I'm wondering what impact it will have when FMRI assays come to show the measurable physical damages in the brains of already traumatized persons exposed to these deliberately hurtful interactions. Wouldn't that transform some kinds of speech into battery?

Don't know how you could prove cause-in-fact there.
posted by Ironmouth at 10:51 AM on March 2, 2011


good. the first amendment applies to detestable motherfuckers like that, which means it also applies to degenerate assholes i agree with, too.
posted by rmd1023 at 10:53 AM on March 2, 2011


This photo is similar, but even weirder.
posted by CunningLinguist at 10:56 AM on March 2, 2011


I agree with the ruling. I'm just always surprised some crazed mourner hasn't machine gunned these fuckers down yet. You can't sue anyone when you're dead.
posted by fungible at 10:57 AM on March 2, 2011 [1 favorite]


I'm wondering what impact it will have when FMRI assays come to show the measurable physical damages in the brains of already traumatized persons exposed to these deliberately hurtful interactions.

I think you're seriously overestimating the specificity of current (and foreseeable future) neuroscience.
posted by OmieWise at 11:02 AM on March 2, 2011 [2 favorites]


This may be the technically correct decision, but I'd be happy if there were a constitutional amendment that said, in effect, you can publish, blog, broadcast, lecture, act, draw, paint, sculpt and email anything you wish, but people get to bury their dead in peace.

Effectively, this ruling allows for that -- it mentions that Maryland recently passed a law preventing a demonstration from taking place right bang up next to a funeral, and it says that this restriction on time and place is permissible.

In essence, this rule is saying "you can't tell them they can't speak at all ever, but you CAN tell them that they're not allowed to speak at this specific address and at this specific time." So a community is able to pass a law preventing a demonstration from taking place in proximity to a funeral the way you say.
posted by EmpressCallipygos at 11:08 AM on March 2, 2011 [1 favorite]


I agree with most of what Roberts wrote for the majority, but Alito's points about the emotional distress aspect of the suit are good ones. I'm not sure how the majority was able to say that some of the signs were directly about the plaintiff's son, and yet that wasn't enough to justify the ruling for severe emotional distress.

At the same time, that Maryland law seems very odd to me. I hope someone here with knowledge of how this all works can explain to me how saying really really really really mean things is an actionable defense. What allows for this law? Because that, and only that, is my quibble with the ruling.

I believe 100% that WBC's protests are legal. I even (dons flame-proof suit) believe that they should be allowed to picket wherever they like, including outside cemeteries during funerals. Justice Alito's argument that the man had "the right" to bury his son in peace puts me firmly back in my comfortable GRAR ALITO GRAR headspace, because *no he doesn't*. Nobody has a "right" to bury someone in peace. A right is something that the law protects--for an example that I have chosen out of thin air, we have the right to speak freely about political issues while standing on a public sidewalk. I tried to explain this to a student in a survey class on American National Government, when she said she had the "right" to not be made uncomfortable by the sight of two gay men holding hands in public. "Rights" gets tossed around far too casually without anyone understanding what it means--and Justice Alito certainly knows exactly what it means.

Ngggh. WBC has the right to protest funerals. It has the right to say awful, horrific things. We all have the right to offend and upset other people. We do NOT have the "right" to not be upset by other people, though we have that desire. I'm still trying to figure out how there can be a law saying that we do have that right.
posted by tzikeh at 11:14 AM on March 2, 2011 [1 favorite]


I'm just always surprised some crazed mourner hasn't machine gunned these fuckers down yet.

I wonder this too, and wonder when some PTSD-suffering, grief-crazed Marine just loses his shit at the funeral of someone he served with.
posted by rtha at 11:16 AM on March 2, 2011


ACTIONABLE OFFENSE, NOT DEFENSE.

(I'll take "ability to edit comment" for $500, Alex.)
posted by tzikeh at 11:16 AM on March 2, 2011


There's a Fourth Amendment?

Yes. It describes the right of the people to be free from unreasonable search and seizure, unless they are bad people.
posted by steambadger at 11:21 AM on March 2, 2011 [4 favorites]


I'll have to look at some of the other coverage here, but it's good to see that the Court came to the correct ruling despite counsel for WBC spectacularly fucking up the argument. There was an open-and-shut argument here, and that seems to be the one the Court adopted. I'm curious to see what, if anything, the Justices made of that hash.

Wouldn't surprise me if they ignored it completely.
posted by valkyryn at 11:34 AM on March 2, 2011


I thought Margie Phelps did a really good job at the oral argument back in October (transcript, audio). One might have expected her to ramble about homosexuality through the whole thing, but she actually presented a really tight, calm, well-reasoned argument for free speech, with none of the stuttering and stammering and frantic page-flipping that you get from inexperienced litigators.

Another vote for "good ruling" here. It's a narrow ruling that protects free speech without eroding people's rights to existing protections from outrageous behavior and intrusion on their privacy. Alito (and others) seem to forget that any law restricting the speech of the Bad Guys can also be turned around and used against the Good Guys.

On preview, really, valkyryn? What do you think they did wrong in the argument?
posted by Gator at 11:38 AM on March 2, 2011


what was stopping you before this?

Now I have a ruled-on legal right that says what's good for the goose is good for the gander.
posted by Old'n'Busted at 11:38 AM on March 2, 2011


An 8-1 decision was unexpected, but I have to think part of the reason the conservative justices voted the way they did was an understanding that any limitation they imposed on Phelp's speech was just as likely to be implemented against anti-abortion protesters.

If you really have that cynical of a view of how the Justices make their decisions, then why the fuck wouldn't the completely unprincipled (in your view) conservative wing just have gone the other way on this and then reversed their stance when the abortion speech case came before it?
posted by gagglezoomer at 11:51 AM on March 2, 2011 [3 favorites]


The meat of the decision is where Roberts addresses that the protesters were not violent, nor shouting, nor otherwise disturbing the peace; the actionable part of the tort claims at issue was the content on the signs themselves. I admit that I am a bit of an absolutist on speech protections, I suppose; I take the position of the Douglas/Brennan line on defamation cases and think that hate crimes statutes are generally bad because they punish motivation versus behavior proscribed by society. But even with a more mainstream view of the law and the history of cases, I think it's pretty clear that the verdict appealed was for punishing unpopular speech, and the decision here is the right one.

Also, this paragraph in Alito's dissent bothered me:
Other signs would most naturally have been understood as suggesting—falsely—that Matthew was gay. Homo-sexuality was the theme of many of the signs. There were signs reading “God Hates Fags,” “Semper Fi Fags,” “FagsDoom Nations,” and “Fag Troops.” Id., at 3781–3787. Another placard depicted two men engaging in anal inter-course. A reasonable bystander seeing those signs would have likely concluded that they were meant to suggest that the deceased was a homosexual.
This was in his argument that the first amendment doesn't protect intentional infliction of emotional distress, and that this was a verbal assault on the deceased and his family. Well, it may be my absolutism again, but as long as it's not a false and defamatory factual assertion being done with knowing or reckless state of mind, I don't think that IIED for words alone should be actionable either. That Alito chose to explain himself by a little backhanded gay-baiting just reinforces my opinion on that.
posted by norm at 11:59 AM on March 2, 2011 [1 favorite]


Rusty and Alito are correct. This ruling is batshit, it provides a guideline of loopholes for how anyone can harass the fuck out of a person legally. You won't be jumping on the free speech cross when a stalker uses this to harass a girlfriend.
posted by furiousxgeorge at 12:14 PM on March 2, 2011


Oh, "God wants to kill you, not me!" is ridiculous. Take a look at the bong hits for Jesus case. Roberts certainly didn't jump on a "Oh, that's saying God wants bonghits not the kid" bandwagon.
posted by furiousxgeorge at 12:17 PM on March 2, 2011


You won't be jumping on the free speech cross when a stalker uses this to harass a girlfriend.

You're right, because that would never happen.
posted by reductiondesign at 12:19 PM on March 2, 2011


You won't be jumping on the free speech cross when a stalker uses this to harass a girlfriend.

Presumably, you wouldn't be jumping on your own cross if the decision had gone the other way and was then used to break up anti-war rallies.
posted by Copronymus at 12:19 PM on March 2, 2011 [4 favorites]


when a stalker uses this to harass a girlfriend.

Under what circumstances would this ruling allow that to happen? For example?
posted by Gator at 12:20 PM on March 2, 2011



Under what circumstances would this ruling allow that to happen? For example?


Use your imagination. You can go to the targets neighborhood and say absolutely anything about them as long as you use a clever enough sign.
posted by furiousxgeorge at 12:23 PM on March 2, 2011


And in a world where WBC exists I'm not gonna dignify "No one would be crazy enough to do this kind of thing" arguments.
posted by furiousxgeorge at 12:24 PM on March 2, 2011


Coming from a European, no-constitution-for-frame-of-reference perspective, I can't understand why this has been framed as a free speech issue. Somebody above said people do not have the right to bury their dead children in peace. Why the fuck shouldn't they? Does telling these hateful fucks to leave the hell alone from funerals stop them pandering this shit anywhere else? Sometimes, I think Americans are so concerned with protecting the constitution that they forget to protect the people it was written for.
posted by londonmark at 12:29 PM on March 2, 2011 [8 favorites]


Use your imagination. You can go to the targets neighborhood and say absolutely anything about them as long as you use a clever enough sign.

I don't think that's a good example. It may not be "intentional infliction of emotional distress," but it could easily qualify as trespassing and/or stalking and/or harassment (which are crimes, not torts). It could also be invasion of privacy, because people are specifically protected when in their homes, since that constitutes a "captive audience." Use your imagination and come up with a better example if you're so sure that this ruling is going to lead down a slippery slope of abuse.
posted by Gator at 12:32 PM on March 2, 2011


CunningLinguist: One of the Phelpses just tweeted this celebratory photo.

Splunge: Here's hoping for heavy traffic.

The sign does say "Destruction is Imminent. (Also note the charming use of Instagram filters.)
posted by filthy light thief at 12:32 PM on March 2, 2011


but it could easily qualify as trespassing and/or stalking and/or harassment (which are crimes, not torts). It could also be invasion of privacy, because people are specifically protected when in their homes, since that constitutes a "captive audience." Use your imagination and come up with a better example if you're so sure that this ruling is going to lead down a slippery slope of abuse.

You will notice I said neighborhood, not home.
posted by furiousxgeorge at 12:34 PM on March 2, 2011


furiousxgeorge: You won't be jumping on the free speech cross when a stalker uses this to harass a girlfriend.

I'd say that stalking a single person with "God will strike you down" messages is different from a broad spectrum attack on all dead soldiers because they aren't picking specific targets, they're finding the opportunity to broadcast their message. From what I know, they don't follow the mourning family members home and continue to march with their signs in the family's front yard.

Still ugly as sin, but not picking individual targets.
posted by filthy light thief at 12:36 PM on March 2, 2011


My friend and I drove past the Phelps compound/Westboro Baptist Church when we were in Kansas (it's noted on Google Maps, just a few blocks from a restaurant that serves great pie, so we figured we might as well check it out), and someone had spraypainted over their sign "God Hates Phelps."
posted by needs more cowbell at 12:44 PM on March 2, 2011


I bet Roberts tried really hard to get a unanimous verdict here. Too bad about Alito.

Yeah, but how 'bout that Thomas siding with Scalia? I know!
posted by Mental Wimp at 12:47 PM on March 2, 2011 [1 favorite]


You can go to the targets neighborhood and say absolutely anything about them as long as you use a clever enough sign.

So clever as to eliminate any reference to the target hirself. And the neighborhood can restrict your access to your target. Both of which...seem to rather defeat a stalker's purpose.

And this ruling still upholds the idea that if you do say anything directly about your target, you can be sued for personal slander.
posted by EmpressCallipygos at 12:47 PM on March 2, 2011


From Alito's dissent:

"Respondents’ outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered. In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent."

aka Alito's "brutalization of innocents" exception to the 1st amend.
posted by airing nerdy laundry at 12:50 PM on March 2, 2011



I'd say that stalking a single person with "God will strike you down" messages is different from a broad spectrum attack on all dead soldiers


That is why you come up with some phony political message to the necessary degree to comply with the ruling. If you can make protesting a specific person's funeral not about them you can do it to anything.
posted by furiousxgeorge at 12:50 PM on March 2, 2011


Sometimes, I think Americans are so concerned with protecting the constitution that they forget to protect the people it was written for.

I think that protecting the Constitution does protect the people. The best way to fight speech is with more speech. Many other first-world countries have laws against racism, libel, etc. Look at the UK's Terrorism Act, or Japan's legal steps against hentai manga featuring children, or the ban on the Nazi salute in Germany, or the ban many countries have against burning flags or religious texts. The US doesn't outlaw any of this (Mike Diana's case, unjustly ignored by SCOTUS, notwithstanding), and I think that makes it a better place, not a worse one.
posted by reductiondesign at 12:53 PM on March 2, 2011 [2 favorites]


I'd say that stalking a single person with "God will strike you down" messages is different from a broad spectrum attack on all dead soldiers

That sounds like every anti-abortion 'demonstration' outside a doctor's office of the last 20 years. If those are legal, Westboro's hate parades are golden.
posted by oneswellfoop at 12:54 PM on March 2, 2011 [1 favorite]


I knew there was something I didn't like about Instagram.
posted by box at 12:54 PM on March 2, 2011


That is why you come up with some phony political message to the necessary degree to comply with the ruling.

I'm struggling to understand your position. You think that it should be illegal for an embittered ex-boyfriend to show up in someone's neighborhood with a clever sign?
posted by norm at 12:54 PM on March 2, 2011 [1 favorite]


The best way to fight speech is with more speech.

Which explains our current obsession with every non-sequitur coming out of Charlie Sheen's mouth/ass.
posted by oneswellfoop at 12:55 PM on March 2, 2011 [1 favorite]


Yes, I think it should be illegal for stalkers to hold signs cleverly implying their target will be killed by God or rapes children. Yes, I think that.
posted by furiousxgeorge at 12:56 PM on March 2, 2011


Coming from a European, no-constitution-for-frame-of-reference perspective, I can't understand why this has been framed as a free speech issue. Somebody above said people do not have the right to bury their dead children in peace. Why the fuck shouldn't they?

This is the fundamentally most frustrating part about being a U.S. citizen and I myself don't fully understand it. There are literally thousands of examples of "Hey, this makes lots of common sense, why can't we all just agree to do it like this?" National health care reform. Adoption of the metric system. I'm not saying it's a bad thing, it's just something I struggle with.

Everyone in the country agrees that the purpose of the first amendment is to preserve countervailing political opinions. Everyone agrees that Phelps is a fucking asshole who has no logical agenda besides promoting himself and jerking around the system. How would arresting the group when they show up at funerals stifle real political discussion?

Americans firmly believe in the slippery slope. I think it has something to do with living in a culturally pluralistic society and we can't or don't want to agree on some cultural norms the way I imagine some European countries do. On the plus side, it prevents some bible thumpers in Indiana having too much influence over how I live my heathen drug-fueled life here on the left coast. On the negative side, it sometimes seems to prevent real progress.
posted by Slarty Bartfast at 12:56 PM on March 2, 2011 [1 favorite]


Everyone in the country agrees that the purpose of the first amendment is to preserve countervailing political opinions.

Well, no, actually, that's not the sole or even primary purpose of the First Amendment.
posted by The World Famous at 1:04 PM on March 2, 2011 [4 favorites]


Everyone in the country agrees that the purpose of the first amendment is to preserve countervailing political opinions.

No, "everyone" does not agree with this. The purpose of the First Amendment is to protect everyone's opinion (for instance, I cannot arrest you for saying that "everyone agrees" something incorrect about the First Amendment).

Everyone agrees that Phelps is a fucking asshole who has no logical agenda besides promoting himself and jerking around the system.

No, "everyone" does not agree this. I imagine there are plenty of evangelical right-wing types who are supporting his message (even if many just do it secretly).

How would arresting the group when they show up at funerals stifle real political discussion?

The Christian right might see it as a sort of slippery-slope step towards erradicating their own rights, and dig in farther. Also -- flip that situation on its head and ask "how would arresting the people who showed up to picket the 2006 Republican National Convention stifle real political discussion?"

I support Fred Phelps' rights because I want myself to have the same rights. I want the right to be able to speak out against what I feel is an error on the part of my government, and in order to protect my own right to do that, I need to support everyone's right to do that. I can speak up myself and tell them they're buttheads, but I cannot get them arrested for saying what they have to say. But the flip side of that is that they can't have ME arrested for saying what I have to say.

However, there are "time and place" limits to this -- I can't barge into Phelp's kitchen and tell him he's an asshole. And some communities may set a rule that says that I can't picket outside the cemetery for a half hour before Phelps' funeral because "that's just...tacky, dude". But I can still say what I want to say across town, and the people who wanna come listen to me know where to find me.
posted by EmpressCallipygos at 1:15 PM on March 2, 2011 [2 favorites]


We don't let freedom of speech protect stalkers, furiousxgeorge. If WBC was stalking, the victims would simply get restraining order.
posted by jeffburdges at 1:21 PM on March 2, 2011 [1 favorite]


How would arresting the group when they show up at funerals stifle real political discussion?

The Christian right might see it as a sort of slippery-slope step towards erradicating their own rights, and dig in farther. Also -- flip that situation on its head and ask "how would arresting the people who showed up to picket the 2006 Republican National Convention stifle real political discussion?"


I would defend the right of anyone to picket a political convention, how did that become relevant? This is a funeral. I would find people picketing Glen Beck's funeral equally offensive. Ok, maybe not equally offensive. (And no people, he's not dead yet.) Can't some things be protected without the whole of free society breaking down?
posted by londonmark at 1:24 PM on March 2, 2011


And when the funeral is also a political event? Because I've known a few people for whom that's been the case. Would it be okay to picket a funeral that is explicitly political, versus one that's not?

People who picket at women's clinics - who don't just picket, but who shout, and carry signs with pictures of dead fetuses, and aggressively leaflet and photograph the cars of patients - are also deeply upsetting to the people going to that clinic. The people going to the clinic have a right to go get a legal medical procedure, whether that's a PAP smear or an abortion or pregnancy care. As much as I hate antiabortion protesters, the patients do not have a Constitutionally guaranteed right to not be upset or distressed by the protesters' message. They do have a right to unimpeded accesses to and from the clinic.
posted by rtha at 1:31 PM on March 2, 2011 [1 favorite]


I would defend the right of anyone to picket a political convention, how did that become relevant?

You would defend the right of anyone to picket a convention. However, there are people who believe that people should not have that right -- at least, they believe that people should not picket their party's convention. That's why it's relevant -- because for every perspective and opinion that exists, there exists an opposing opinion, and the question of "should I be allowed to say this" shouldn't be answered by "depends on who's in charge of the country".

I would find people picketing Glen Beck's funeral equally offensive. Ok, maybe not equally offensive. (And no people, he's not dead yet.)

That's why the SCOTUS supported, in this very ruling, the right of a community to say "you can't do this right bang up next to a funeral." The ruling supports the right of a community to say "if you gotta have this rally, go do it across town." The only thing the ruling says is that a community can't say "you can't say this at all." But sending them across town protects the mourners while letting the idiots get their idiocy out.
posted by EmpressCallipygos at 1:33 PM on March 2, 2011


Would it be okay to picket a funeral that is explicitly political, versus one that's not?

I don't know what that means.
posted by londonmark at 1:34 PM on March 2, 2011


Quick thought on a possible solution to WBC shenanigans:

Growing up, my school had a thing called "Jump Rope for Heart" where people would pledge money to the American Heart Association per kid per hour spent jumping rope. A lot of good money was raised.

Couldn't we start something like that for WBC, where people pledge money per WBC-er per hour spent protesting, with the proceeds to go towards paying for sex change operations for transgender people?

"Go ahead and protest, jerks. You're just buying sex changes."
posted by DirtyOldTown at 1:35 PM on March 2, 2011 [6 favorites]


I don't know what that means.

Political events and funerals are not mutually exclusive things. If it's okay to protest a political event, but not okay to protest at a funeral, who decides which of those categories a political funeral falls under?
posted by rtha at 1:46 PM on March 2, 2011


All I have to add right now is my full support for the Get Shouty for Sex Changes campaign.
posted by byanyothername at 1:47 PM on March 2, 2011 [1 favorite]


Everyone in the country agrees that the purpose of the first amendment is to preserve countervailing political opinions.

I guess you get to decide what is a "political" opinion and which ones are unacceptable?
posted by spaltavian at 1:50 PM on March 2, 2011


Political events and funerals are not mutually exclusive things.

I must have lived a very sheltered life then.
posted by londonmark at 1:51 PM on March 2, 2011



We don't let freedom of speech protect stalkers, furiousxgeorge.


We do now.
posted by furiousxgeorge at 1:52 PM on March 2, 2011


I must have lived a very sheltered life then.

For an easy example, think of a funeral for a Head of State. Very politicized events.
posted by wildcrdj at 1:53 PM on March 2, 2011


I must have lived a very sheltered life then.

Heads of state and political figures occasionally die.
posted by The World Famous at 1:55 PM on March 2, 2011


Growing up, my school had a thing called "Jump Rope for Heart" where people would pledge money to the American Heart Association per kid per hour spent jumping rope. A lot of good money was raised.

Couldn't we start something like that for WBC, where people pledge money per WBC-er per hour spent protesting, with the proceeds to go towards paying for sex change operations for transgender people?

"Go ahead and protest, jerks. You're just buying sex changes."


We had something similar planned when WBC was going to come to Boston and protest Gerry Studds funeral (they never came in the end). I used this to begin planning for a similar action when our local White Power group was supposed to meet at our public library while a film was being shown for Black History Month in another public room (they rescheduled).
posted by rollbiz at 1:59 PM on March 2, 2011


Heads of state and political figures occasionally die.

Yup. And otherwise politically unimportant people who died of AIDS back when Reagan et al. couldn't bring themselves to even whisper the word, and whose funerals or memorial services were explicitly and wonderfully political, up to and including marching to the White House and dumping the ashes of the deceased on the lawn. Political? You betcha.
posted by rtha at 2:03 PM on March 2, 2011


I must have lived a very sheltered life then.

Think about funerals for IRA or UVF members, back in the Troubles, as well.
posted by Infinite Jest at 2:05 PM on March 2, 2011


          We don't let freedom of speech protect stalkers, furiousxgeorge.

We do now.


That's ridiculous. There are criminal (NOT CIVIL) remedies to protect people from stalking, harassment, and trespassing. This was a civil case having nothing to do with any of those things.
posted by Gator at 2:09 PM on March 2, 2011 [2 favorites]


J Alito's dissent does raise many interesting questions. He almost seems to wish the plaintiff had sued the television stations which provide the WBC with a reliable platform for their nasty rhetoric, commenting that the 'strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief.' One wonders why the media can't report the fact of a protest without showing all the hateful signage every single time; the WBC protests so frequently and with such little variation to their message that TV news reports on exactly which signs they are waving this week has come to resemble bigotry bingo.

More importantly, Alito refers to a highly specific and hateful rant posted on the WBC website after the funeral, which is unarguably distressing to the family involved. But as CJ Roberts observes in a footnote, that aspect of the story was not included in the original request for certiorari, and so it was not considered as a factor in the court's decision. Supreme court rules require that the facts of the case be stated in full in the petition for certiorari, whereas the plaintiffs omitted these details and made only made passing reference to them in their legal argument, apparently choosing to build their case around the much more narrow issue of what transpired at the time of the funeral. In light of both the rule and the much broader implications that a decision which took internet postings into account would have had, Roberts' exclusion of this issue seems to be correct...

...although somewhat ironic, given today's other decision: Pepper v. United States.
posted by anigbrowl at 2:12 PM on March 2, 2011


I recognise that the funerals of some people become highly politicised. That's not the same thing as a political event. Is there a dead body? Is someone trying to bury them with dignity and respect? I guess to some people there are no holy cows, but for me, this is one.
posted by londonmark at 2:14 PM on March 2, 2011


Can someone explain to me why the WBC don't get prosecuted for harrassment whenever they protest at a funeral?
posted by His thoughts were red thoughts at 2:15 PM on March 2, 2011


I recognise that the funerals of some people become highly politicised. That's not the same thing as a political event. Is there a dead body? Is someone trying to bury them with dignity and respect? I guess to some people there are no holy cows, but for me, this is one.

How about Dick Cheney's funeral? (Yes, I realize that Dick Cheney is the undead, but I'm speaking hypothetically.)
posted by The World Famous at 2:17 PM on March 2, 2011


I accept that m'learned justices got this right, with the terms of your constitution. The simple fact is, your constitution is wrong.

Phelps would be in gaol quickly if he tried that shit on in Australia. Which is where he belongs.
posted by wilful at 2:21 PM on March 2, 2011


How about Dick Cheney's funeral? (Yes, I realize that Dick Cheney is the undead, but I'm speaking hypothetically.)

I used Glen Beck as my example. You may disagree with my position but please don't try and catch me out in a contradiction. I believe what I believe.
posted by londonmark at 2:21 PM on March 2, 2011


Is there a dead body? Is someone trying to bury them with dignity and respect?

But what about the examples people gave where the funeral is itself used as political speech (like the AIDS patients rtha refers to)? Surely in those cases the "other side" has a right to speech as well.

In other words, funerals that are politicized by the bereaved and not by outside forces. Do only the bereaved have the right of speech at funerals?

And frankly I just don't see funerals as something that should have a Constitutional cut-out for them. There are many events where people are upset to hear certain kinds of speech. I don't buy that funerals are so special they should receive unusual treatment compared to, say, a wedding or other highly emotional events.

But yeah, this is something we in the US (most of us) believe that is generally at odds with the rest of the developed world. Sometimes the rest of you get it right (death penalty), but on this one I think the US has it nailed.
posted by wildcrdj at 2:22 PM on March 2, 2011 [2 favorites]


But what about the examples people gave where the funeral is itself used as political speech (like the AIDS patients rtha refers to)? Surely in those cases the "other side" has a right to speech as well.

Does it weaken my view if I have to say I don't know to every rare exception you can come up with? Probably, but working out what happens in these situations is what courts are there for, I don't think that defeats the principle.

I don't buy that funerals are so special they should receive unusual treatment compared to, say, a wedding or other highly emotional events.

This, I can't argue with. Our views are different. Free speech is a wonderful thing :)
posted by londonmark at 2:32 PM on March 2, 2011


I used Glen Beck as my example. You may disagree with my position but please don't try and catch me out in a contradiction. I believe what I believe.

Glenn Beck is a TV entertainer. Dick Cheney is a former Vice President of the United States. Since your position is that no funeral is a "political event," and you have not told us what the term "political event" means, I think it's fair to ask, given the political nature of some funerals, particularly those of heads of state.

So, what do you mean when you say "political event?" I ask because I cannot imagine any scenario where, for example, the funeral of Ronald Reagan or the funeral of Paul Wellstone were not political events.
posted by The World Famous at 2:38 PM on March 2, 2011


I accept that m'learned justices got this right, with the terms of your constitution. The simple fact is, your constitution is wrong.

Yeah, in America they still can't toss you in the clink just for saying stupid and offensive stuff. Which is why Rupert Murdoch is now an American citizen.
posted by norm at 2:54 PM on March 2, 2011


WBC will go to hell - every one of them, particularly their spokesperson. I'd like the constitutional right to shoot every one of them in the head but I doubt that's forthcoming. They are fuckwad-mental. Free speech does cost something sometimes, and it hurts to see these insects using it to its nth degree. But it's legal and I didn't need the WBC to demonstrate that. I'm worried that other forms of free speech will be suppressed, more importantly.
posted by nj_subgenius at 2:57 PM on March 2, 2011


Fred Phelps is a child abuser. Thanks to shii I read this excellent book detailing the life of Phelps and the development of his church and you should too. Addicted to Hate.
posted by Meatbomb at 3:00 PM on March 2, 2011 [4 favorites]


So, what do you mean when you say "political event?" I ask because I cannot imagine any scenario where, for example, the funeral of Ronald Reagan or the funeral of Paul Wellstone were not political events.

I thought it was implicit that I mean things without dead bodies, what do you mean? Accepted, state funerals are a different sort of beast, but given that the entire nation is generally tacit invitees to them, there really can't be the same expectation of privacy. It does not matter to me that someone might be well known, or famously disliked, so long as their are family and loved ones wishing for a ceremony free of offensive placards and hate-filled bystanders. Honestly, all these 'what if' scenarios are just candyfloss; either you think somebody should have the right to bury their loved ones in private or you don't.
posted by londonmark at 3:00 PM on March 2, 2011 [1 favorite]


Is there a dead body? Is someone trying to bury them with dignity and respect? I guess to some people there are no holy cows, but for me, this is one.

And that is why -- if you read the ruling -- you will note that the ruling itself says that it IS permissible for a community to set "time and place" restrictions, like:

* "Mr. Phelps, you have to stay 1000 feet from the mourners at all times."

or

* "Mr. Phelps, you have to stop one hour before the funeral services start/you cannot start until one hour after the funeral services end."

or

* "Mr. Phelps, you cannot amplify your speech past this particular volume."

It says it right there in the ruling. It even says why they say it. Check it!
posted by EmpressCallipygos at 3:18 PM on March 2, 2011 [2 favorites]


I thought it was implicit that I mean things without dead bodies, what do you mean?

That was not implicit as a part of your intended definition of the term, no. Indeed, it wouldn't make sense for it to be part of the definition when your assertion was that you don't think funerals are ever political events. Why would you bother making the assertion if the definition of "political event" included "an event where no dead bodies are present?"

What do I mean by "political event?" Well, I'm not the one using the term, and I'm not arguing with you or disagreeing with you. I'm trying to understand the meaning of the assertion that you made that a funeral can never be considered to be a "political event."

Honestly, all these 'what if' scenarios are just candyfloss; either you think somebody should have the right to bury their loved ones in private or you don't.

It's not a "what if" scenario. It's an attempt to understand what you meant when you said that there's a difference between a political event and a politicized funeral. I don't think people burying their loved ones should be harassed, picketed, or disturbed - in general. I can think of exceptions to that, obviously (Mussolini, Ceauşescu, etc.). I'm not sure I would term that as a "right," since the legal meaning of that term is fairly specific.
posted by The World Famous at 3:41 PM on March 2, 2011


Honestly, all these 'what if' scenarios are just candyfloss; either you think somebody should have the right to bury their loved ones in private or you don't.

The Supreme Court agrees with you, but you have different definitions of "private" is what it sounds like. Westboro could not come into the church/funeral home or the cemetery, they could not block traffic, they could not use methods to amplify their speech, etc.

Honestly, all these 'what if' scenarios are just candyfloss;

They're not, actually; they're one of the ways the law works. During arguments, the justices throw all kinds of "what if" scenarios at the attorneys. Some of them are kind of goofy or sound incredibly dumb or minor, but it's a way of exploring the ramifications of the law.
posted by rtha at 3:51 PM on March 2, 2011


Good.
posted by bardic at 3:59 PM on March 2, 2011


> Assholers gonna asshole

"And every once in a while, dicks gotta fuck assholes"
posted by mmrtnt at 4:01 PM on March 2, 2011 [1 favorite]


Phelps would be in gaol quickly if he tried that shit on in Australia.

For what, exactly? Is being a delusional prick a crime there?

There are a lot of legitimate reasons to take exception to the U.S. legal system, but the fact that you can't get criminally charged for saying something unpopular near someone whom it offends is not among them, if you ask me.

(Frankly, it's also quite the unusual criticism that we're not quick enough to lock people up.)
posted by dixiecupdrinking at 5:43 PM on March 2, 2011 [2 favorites]


Right about now, I really want Anonymous to strike down upon WBC with great vengeance and furious anger those who would attempt to poison and destroy my brothers
posted by ChipT at 6:37 PM on March 2, 2011 [1 favorite]


dixiecupdrinking, its the quality not the quantity of the people you lock up. Under the Racial and Religious Tolerance Act 2001, S.8(1):
A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
Note
Engage in conduct includes use of the internet or e-mail to publish or transmit statements or other material.
Phelps would have to try and argue S.11(1):
A person does not contravene section 7 or 8 if the person establishes that the person's conduct was engaged in reasonably and in good faith—
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held, or any
other conduct engaged in, for—
(i) any genuine academic, artistic, religious or scientific purpose; or
(ii) any purpose that is in the public interest; or
(c) in making or publishing a fair and accurate report of any event or matter of public
interest.
Six months or 60 penalty units (about $7000) fine for an individual, $35 000 fine to the Westboro church.

I realise a lot of Americans think that unfettered free speech is the ne plus ultra of rights and democracy, and their Constitution is flawless, but many people around the world take a very different view.
posted by wilful at 6:41 PM on March 2, 2011 [1 favorite]


I could be wrong, but I really don't think WBC is engaging in hate speech in the sense of that statute. If WBC is "inciting hatred, contempt, revulsion or ridicule" against anyone, it's themselves. I take your point, though, that that law would be unconstitutional here.

I don't see where you're getting this "Americans think the Constitution is flawless" thing. First of all, "the Constitution" is just the sum total of everything the SCOTUS says it is at any given time. Until this morning, it was unclear what "the Constitution" had to say on the WBC issue. Secondly, there's a constant and fairly robust debate about the right balance to strike between ensuring different groups' liberties and rights, which I think is evident in this very thread and in the American media, when they're not asking their viewers and readers to vote on their favorite YouTube cat videos. I think you're drastically underestimating the vibrancy of American political debate, despite its surface vapidity. Though I get it, we are a bunch of rah rah rednecks, etc.
posted by dixiecupdrinking at 7:21 PM on March 2, 2011


I realise a lot of Americans think that unfettered free speech is the ne plus ultra of rights and democracy, and their Constitution is flawless, but many people around the world take a very different view.

U.S. law and the U.S. Constitution do not provide for unfettered free speech. That is confirmed and made abundantly clear in the Court's opinion that we are discussing in this very thread.
posted by The World Famous at 7:31 PM on March 2, 2011 [2 favorites]


Willful: I don't think we believe the constitution is flawless. We are just happy that its flaws give greater freedom to individuals rather than less. Restricting speech in any way is bad. Doing it because of hurt feelings is double-bad.
posted by gjc at 7:38 PM on March 2, 2011 [4 favorites]


Conflating "you have the right to do such and such" with "... but the law will punish you if you do" seems kind of silly to me.

There is a difference between the law and the justice system. If you speed, the law punishes you. If you crash into someone's car, the justice system forces you to compensate that person.

The law will (almost) never tell me I don't have the right to say something. But, in using that right, I have to be careful not to cause anyone damages. If I say something legitimately slanderous and lose a lawsuit, I have to pay the victim of my slander damages. Nobody is preventing me from going right back out on the courthouse steps and saying it again.

And same with this case: the WBC was found to have done nothing that wasn't legitimate free speech. Lower courts thought it rose to the level of slander, the SC disagreed.
posted by gjc at 7:44 PM on March 2, 2011


Oh I know we're not going to agree on this one. Heh, what can I say, Americans are crazy.

Restricting speech in any way is bad.

yep.

Doing it because of hurt feelings is double-bad.

hell no. What are we if not a collection of feelings?


dixiecups, you're projecting. This has nothing to do with your bigotry or redneckedness. Though rah rah ness is generally readily apparent when talking about the US constitution, a great document for it's time, now not so much.

It's about the rights if individuals having primacy over the rights of society. Nobody seriously thinks that Phelps adds to the net sum of human goodness do they? Nobody thinks the world is a better off place with his views being unfettered? Well we (that is to say most of the developed world) think that a commonsense approach would limit fucktards ability to mouth off in public. Society benefits.
posted by wilful at 7:46 PM on March 2, 2011


Respectfully, precluding judgments like...

Nobody seriously thinks that Phelps adds to the net sum of human goodness do they?

...from being given the force of law is precisely why Americans value the U.S. Constitution.
posted by dixiecupdrinking at 7:58 PM on March 2, 2011 [6 favorites]


Society benefits.

An unsupported claim.
posted by one more dead town's last parade at 8:10 PM on March 2, 2011


The motivating force behind the first amendment is distrust of government. There's no universal agreement about the dictates of common sense, and there are plenty of people who would jump at the chance to regulate speech promoting, e.g., homosexuality. The cases that seem easy to us are dangerous because we just want to solve the obvious problem, here that the Phelps clan is monstrous. But there's no workable rule that just takes care of Phelps without giving courts, policemen, and legislators the power to silence other speakers. Recall Canada's enlightened law regulating pornography, which has been used to suppress homosexual pornography while basically leaving hetero porn alone.

The majority opinion made me uncomfortable for this reason. If we distrust government and don't want to give it the power to silence speech, then we should be uncomfortable with manipulable tests and blurry distinctions. The private/public distinction as articulated by the court made me extremely uneasy. Right now I'm reading a lot of cases about homosexual speech, and one way that courts have gotten around the first amendment and suppressed it is (in addition to finding it obscene, because we are in the dark ages and obscenity is unprotected) by defining it as lacking any public or political relevance. In our time, we are increasingly able to explain why sexual speech is indeed of public and political interest, and we can point to legal controversies that require the open discussion of sexuality. But I think sexual speech is, even today, highly vulnerable to being categorized as somehow private and apolitical.

This is one of the problems with goal-oriented conceptions of the first amendment rather than process-oriented ones. If we're thinking about a goal (promote political speech!) we can start arbitrarily excluding shit (homosexual speech is not political!). I think it's better to focus on process (the government will fuck up censorship, is this censorship? if yes do not pass go).
posted by prefpara at 8:41 PM on March 2, 2011 [1 favorite]


Nobody seriously thinks that Phelps adds to the net sum of human goodness do they? Nobody thinks the world is a better off place with his views being unfettered? Well we (that is to say most of the developed world) think that a commonsense approach would limit fucktards ability to mouth off in public. Society benefits.

Here's the thing, though --

Somewhere, in the United States, there is a group of people who are saying this exact same thing about either you personally, or someone you agree with. They are saying this exact same thing about how "Most of the world" thinks that "a commonsense approach" would limit "fucktards" --- and they mean you when they say "fucktards" -- -- from "mouthing off in public.

Do you really want to rely on "common sense" if those are the guys who are deciding what "common sense" is? Or do you want something that protects your ability to speak even if "common sense" has become seriously UNcommon? I know what I'd prefer.
posted by EmpressCallipygos at 8:43 PM on March 2, 2011 [2 favorites]


well, you guys don't trust your courts or government, so you have to view it through that filter. We trust our courts and governments not to be evil (incompetent, sure) so that's the disconnect.

It's exactly the same thing with guns.
posted by wilful at 8:47 PM on March 2, 2011


As much as I despise the 'Cult of Phelps' and their hateful speech, I believe that the Supreme Court made the right decision.
posted by ericb at 9:24 PM on March 2, 2011


Well we (that is to say most of the developed world) think that a commonsense approach would limit fucktards ability to mouth off in public.

I agree that most people probably find Fred Phelps and his clan deeply objectionable and would rather not hear what he has to say.

But I'm wondering what you think a commonsense approach would be. For every example you give me of a way that we could limit the WBCs ability to mouth off, I'll give you five counter-examples on how this restriction could reasonably be used against you on a less ridiculous and over the top form of speech. Most people can agree that what the WBC says is offensive but is the line as clear when someone, for example, wishes you a Merry Christmas? Who decides where the line should be drawn?

This kind of arbitrary rule making based on not offending certain groups of people happens all the time in the UK, with all its attendant cries of a "nanny state", so we don't need to look far for examples.

Guns are really a different matter entirely.
posted by triggerfinger at 10:02 PM on March 2, 2011


roomthreeseventeen: You can't yell fire in a movie theatre.

Pet peeve alert.

You can yell "Fire!" in a theater. Indeed, there are times when you would be morally obligated to do so. For example, when the theater is, in fact, on fire.

The correct construction is, "You may not falsely yell "Fire!" in a theater." Poor Justice Oliver Wendell Holmes, Jr. must flip in his grave every time he is misquoted.

It is worth noting that the case in which this comment appears ( Schenck ) was actually later overturned by Brandenburg v. Ohio . The court specifically rejected the reasoning that speech could be restricted to prevent evils that Congress had a right to oppose and adopted a much narrower standard.

Hate speech is, despite the best efforts of some, for the most part not a crime. The WBC cult is one of the ugliest expressions of American freedom extent. But speech like theirs, repugnant, hurtful, and pointless as it may be, should be tolerated (from a legal perspective) in a free society in order to ensure that same freedom is available for important, meaningful but unpopular speech.

That said, I think people have every right to express their dislike of the WBC message.

People need to realize, also, that WBC isn't even really a church. As far as I know, they have no members not related to Fred Phelps by either blood or marriage. It's more like a dysfunctional family writ large. And you thought you had a tough childhood...
posted by driley at 12:46 AM on March 3, 2011


It's more like a dysfunctional family writ large. And you thought you had a tough childhood...

Yeah, very much this. Here are some highlights of the pre-fame life of the Phelps family, from that link above: If there exists a prototype, a Platonic ideal, of "fucking asshole", it is Fred Phelps. The more current public chapter of the church is actually the toned down part of his story, when he started mellowing with age.
posted by Meatbomb at 3:44 AM on March 3, 2011 [1 favorite]


NPR's All Things Considered did a 3 minute story about WBC yesterday, which included this little gem:
Shirley Phelps-Roper, the church spokeswoman, says the members want God to punish Americans for tolerating homosexuality. They picket funerals to make people angry, she says: They want people to reject God and be condemned to hell.

"Our job is laid out," she says, in comments sprinkled with biblical references. "We are supposed to blind their eyes, stop up their ears and harden their hearts so that they cannot see, hear or understand, and be converted and receive salvation."
I guess they don't really want to fight homosexuality on earth so much as they want to make sure they don't have to bump into any homosexuals or homo-sympathizers in Heaven. It also seems that the madder you get at them (and thus at God, since they are obviously his representatives), the more encouraged they feel that they are doing their job well.
posted by jon1270 at 6:09 AM on March 3, 2011


I guess they don't really want to fight homosexuality on earth so much as they want to make sure they don't have to bump into any homosexuals or homo-sympathizers in Heaven. It also seems that the madder you get at them (and thus at God, since they are obviously his representatives), the more encouraged they feel that they are doing their job well.

About as good a precis of necessary religious delusion as I've ever seen.
posted by Mental Wimp at 9:27 AM on March 3, 2011


Would it be a legal counterprotest to the WBC to completely surround their small knot of protesters with a ten foot tall bolt of cloth (providing there was space to exit)?

At Matthew Shepard's funeral his close friend Romaine Patterson and others shielded WBC from view with their giant 'angel wings'. (image: 1 | 2).

The group Angel Action was founded as result of being inspired by that tactic used at his funeral. Since then biker groups like the Patriot Guard Riders and The Hells Angels join in in revving their motorcycles to drown out the Cult of Phelps.
posted by ericb at 10:11 AM on March 3, 2011


Or, what jgaiser said!
posted by ericb at 10:13 AM on March 3, 2011


FWIW -- there's a lot of good info and links about the WBC and the Phelps in this recent FPP.
posted by ericb at 10:18 AM on March 3, 2011


The simple fact is, your constitution is wrong.

Freedom speech is the only thing this country has ever gotten 100% right.
posted by spaltavian at 12:48 PM on March 4, 2011


Fallen Marine's father says anti-gay pickets will draw gunfire
"A day after the U.S. Supreme Court affirmed Westboro Baptist Church's right to protest against homosexuality at military funerals, the fallen Marine's father, who unsuccessfully sued the controversial Kansas congregation, warned that the church's protests will eventually spark violence."
posted by ericb at 5:43 PM on March 4, 2011


JIm Goad weighs in.
posted by telstar at 9:15 PM on March 9, 2011


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