Censorship

Upholding the Right Not To Be Offended

The First Amendment protects even the ugliest forms of speech

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Editor's Note: Steve Chapman is on vacation. The following column was originally published in January 2006.

It's hard to describe the views of the Rev. Fred Phelps without feeling soiled by the association, but I'll do it anyway. He attests that God is disgusted with America's tolerance of homosexuality. In his view, the Almighty is punishing the nation by using improvised explosive devices (IEDs) to kill American troops in Iraq. God wants our soldiers dead.

Phelps, pastor of the Westboro Baptist Church in Topeka, Kan., is not content to deliver this message to his congregation. He also communicates it in the least welcoming venue he can find: the funerals of men and women who died in combat. He and his parishioners have staged protests at more than 60 military funerals, holding signs with messages like "Thank God for IEDs" and "God Hates Fags."

These vicious demonstrations have elicited a predictable but mistaken response: demands that they be outlawed. Kansas passed a law banning such protests for one hour before a funeral begins and two hours after it ends. As lieutenant governor of Illinois, Pat Quinn pushed a law requiring demonstrators to stay far away from such a service.

Quinn sees the issue as simple. "No grieving military family should be subjected to vile epithets and signs at the funeral service of their loved one who has made the ultimate sacrifice for our country," he declared. The bill, he said, would merely uphold "the First Amendment religious rights of families to bury their dead with reverence."

Some parts of the bill do exactly that—making it illegal for protesters to block access to funeral parlors and churches, and restricting the sound levels of protests. But the concern is selective. The bill doesn't prohibit rock bands or motorcycles from making noise near a funeral—only protesters. The heart of the bill is meant to circumvent the First Amendment, not uphold it.

One section forbids any protest, no matter how quiet or unthreatening, within 300 feet of a building where a service is being held, from half an hour before it starts until half an hour after it ends. Another forbids signs featuring "veiled threats"—which could include the message that God will kill Americans if they don't change their ways.

The obvious goal is to stop demonstrators from presenting mourners with a message they may find deeply offensive. But the whole reason for the First Amendment's guarantee of freedom of speech is to protect unpopular, obnoxious, and even horribly vile messages. Messages that are popular and palatable, after all, don't need constitutional protection, since they are in no danger of being censored.

No one would seriously argue that the government can forbid Phelps to say "Thank God for IEDs" from his pulpit, in a public park, on a street-corner soapbox, or at a political rally. But the intent of these measures is to prevent him from saying it, even on a placard, at the site of a military funeral.

Why? Because the message can only wound the feelings of the family and friends of the deceased. It's reprehensible of Phelps to go out of his way to add to their trauma. But as University of Chicago law professor Geoffrey Stone put it, "There is not a funerals exception to the First Amendment."

Granting one exception would lead to others. If we silence demonstrators to protect us from emotional upset at funerals, what's next? Protecting us anytime we visit a cemetery? On our way into Sunday worship? When we're entering a hospital? Arriving at a psychiatrist's office?

Once we decide citizens should be free of unwanted messages in some public places, we invite censorship whenever anyone takes offense. Civil rights activists wouldn't have been permitted to jar the sensibilities of white Southerners. Antiwar demonstrators would be kept away from the Pentagon. Nazis wouldn't have been allowed to march in Skokie. Victims of priestly molestation would have to stay away from Catholic churches.

It's no justification to say Phelps could exercise his right to protest at other places and other times. Part of the right to free speech is the right to decide when and where to speak in order to achieve the desired impact. I think his message is wrong. But if it were right, who would need to hear it more than those mourning a soldier's death?

When Americans enacted the First Amendment, they agreed that none of us has a right to avoid being offended. If we had, a tranquil silence would fall over all the subjects that we now debate so vigorously and indecorously. The silence of the graveyard.

COPYRIGHT 2009 CREATORS SYNDICATE, INC.

NEXT: Breathe Easy

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  1. Good Morning Reason!

    1. That hurt, Suki. You should be more careful. Vicious outbursts like that are insensitive and rude.

      1. “Happy sunrise” would be more appropriate.
        Also acceptable: “Daylight greetings!”

        1. What if you live north of the arctic circle and won’t have daylight for a couple of months?

          1. Then you’re screwed, whitey.

            1. What the fuck are you talking about? The chinaman is not the issue here, Dude. I’m talking about drawing a line in the sand, Dude. Across this line, you DO NOT… Also, Dude, chinaman is not the preferred nomenclature. Asian-American, please.

              1. Walter, this isn’t a guy who built the railroads here. This is a guy…

                1. He peed on your fucking rug, Dude.

      2. I agree. If you really wanted it to be a good morning, you would be issuing that greeting when rolling over next to us in bed.

        1. Your relationship must be awful if you are having fantasies about Suki. I pity you. Greatly.

            1. Now Epi, if the idea of waking up next to a young, hot, bisexual and libidinous asian woman isn’t your idea of fun, then I pity YOU fool!

              Whether or not Suki fits that description, or whether she’s real or not, is beside the point. It’s the thought that counts, and that’s about all it will be today anyway .

        2. I’ll check with beloved on that right away, k? 😉

    2. The correct parsing of the name of the magazine is “reason”. So, you should have said, “Good morning reason!”

      1. GOOD MORNING reason 🙂

        I like that better. or GOOD AFTERNOON rEASON!

  2. “Upholding the Right Not To Be Offended”

    I thought that Right only existed in college “speech codes”.

    1. That right is greatly limited to not offending those who write and enforce college speech codes. If you don’t happen to be one of people who write and enforce those codes you have no right to not begin offended. A great example being people who are offended by college speech codes, they have no right to not being offended.

      1. If I ran a college, I’d have speech codes. And add a graduation requirement to be patriotic as it pertains to the speech codes. Anyone who didn’t fight them would be told on graduation day that they don’t get a diploma.

        1. That’s how I lost mine…

    2. And in Canada, where it’s enshrined in law and enforced by individuals who pose as neo-Nazis and make horrible statements in order to incite others to make similar statement so they can be sued…

  3. Happy New Year from Adelaide, Australia fellow Libertarians (oh oh – also Americans – you better check Google Earth)

  4. Please, let us resolve to call, no, scream, bullshit each and every time we hear another describe a soldier who dies as having “made the ultimate sacrifice.”

    Liberty must confront, debunk and ultimately incinerate the collectivist claptrap that the apogee of human existence is “sacrificing one’s life to a cause greater than oneself.” To the extent that we remain silent as others apotheosise “the troops,” the cause of liberty retards.

    1. LM I would think as long as someone voluntarily decided to give their lives for others there should be no problem.

      1. Volunteer? Did they finance their “volunteer” efforts? Did they engage in consensual, non-coercive activity?

        1. I’m not sure what you’re getting at? Everyone in the military, called by their civilian leaders, should not go because of your disagreement?

          When they die in battle, if the battle isn’t the one you would’ve chosen then it wasn’t a sacrifice?

          I guess I’m just really wondering for all the real injustices and collectivist/statist language used, this seems to be pretty far down the totem pole.

          Though I’ve honestly wondered exactly what libertarianism means to foreign policy – it seems a weakness of the philosophy is a failure to be able to deal effectively with international affairs.

          Not that I believe we should be in Iraq or Afghanistan (at this time anyway for the latter), I just don’t know that non-coercion works in a game whose rules you can’t control….

        2. Yes they volunteered.

          Yes they pay taxes and give up many civilian financial opportunities.

          Yes they voluntarily and without coersion agreed to surrender their civil rights and allow anyone with a higher rank coerce them into following orders.

          1. They are however still bound by UCMJ – IE, a solider is responsible for disobeying an illegal order – say your commanding officer said “shoot that prisoner” – if said prisoner is already “contained” then doing so would be murder and the solider has a duty to disobey.

            However, in all societies throughout history war has not been considered murder.

            You can debate that if you’d like, but what it means is that when fighting the battle you’re told to fight can never be an “illegal” order.

            Civilians send the military to do their thing, the military’s job is to get it done.

            I just don’t get the absolutism without any recognition of reality. Civilian control is necessary for obvious reasons. Elected representatives chose this path.

            Yet because the war is deemed anti “non-coercion” principle soldiers therefore aren’t sacrificing for their country?

            Running away would be better? Talk about chaos and lack of integrity.

            Speaking of integrity – a society without morals and virtues, even in libertopia will fail.

            Indeed, one of the strengths of libertarian thought is that by forcing people to directly pay for their own mistakes, you’re giving more incentive to act in a moral way even if for the wrong reasons.

            Allowing my bad decisions to be paid for by others, incentivizes me to continue that bad behavior… or is at least less of a deterrent than had I paid the entire price.

            Again, just not sure libertarianism, specifically the non-coercion policy, works in the foreign policy realm.

            1. Well that depends what you mean by “work.” To a deontological libertarian, the ends are of secondary or no importance. What matters first and foremost is the rule of non-coercion. If the government’s intervention in foreign affairs necessitates the use of unsolicited force (whether it be on taxpayers or foreign civilians), then it can’t be allowed.

              1. Probably too late for a reply – but that’s my ultimate point – I don’t know how non-coercion works on the foreign policy realm… or more accurately believe that it doesn’t work at all.

                This is separate from Iraq or Afghan specifics.

                1. Two options for non-coercive interventionism:

                  1. All individuals agree to intervene.

                  2. Private “activist” groups that volunteer to intervene.

                  Both cases are pretty unlikely, and both would also have to make sure to respect the rights of innocent civilians.

    2. Stfu Libertymike

  5. In case, like yesterday, there is no morning links/open thread I would just like to let everyone know that DeMet’s Turtles are libertarians. The little cartoon turtle on the box wears a top hat and monocle. So between those and Mr. Peanut, we’re well represented in the snack world. 🙂

    1. And then Canada sort of “un-criminalized” it… sort of, but not really.

  6. I agree, we didn’t need this law. What we needed was concealed carry.

  7. I live in Nebraska. We have one of this guy’s followers suing us over her arrest and conviction for flag desecration and funeral disruption.

    While a libertarian might object to her arrest, I would argue that the the people involved have enough pain without someone screaming foul language and hurtful comments at them. Whether or not you support the war, the troops, or their families, you must (if you have any humanity at all) have at least some compassion for the grief of those who have lost a child, sibling, or friend. You have to give these people the space, and respect that basic civility demands.

    The followers of this guy don’t seem to get it. They cross the line into disturbances that become violent, and they deserve to be shunned by the larger society, and when that fails to stop their behavior, they should be put somewhere where they don’t hurt others. In the modern world, that place is called Jail.

    1. Basic humanity dictates that there be no special rules for fallen military folk and their families. They are not entitled to “space” to which the rest of us are not entitled.

      Basic humanity also dictates that if a class of people deserve extra “space” it would not be those who are rent seekers, those who joined a state sponsored military or paramilitary organization, those that benefit from the welfare/warfare state and those who have refused to honor their oaths to defend the constitution from all enemies as any soldier who went to Iraq or Afghanistan has.

      Basic decency dictates that we need not fret about hurting the feelings of freeloader collectivists.

      1. Why not say the property owner of the funeral home or cemetary should be able to order these people moved off the property. And if the property owner is the government the same should apply: in the exercise of the ownership of public lands the government should essentially have the same basic rights as other property owners (i.e., if someone disrupted activity at the post office they should get the heave-ho too). Let’s say there was a government owned ballroom which could be rented out. If party A is renting it to have a reception party b should not be able to enter and disrupt, as long as party b can equally have a chance to rent the space.

        I don’t think of the military as rent seekers or on welfare as they exchange something for something (their lives, labor, etc., in return for pay, benefits, etc). I also don’t think they are refusing to honor their oath to the constitution. As much as I loathe the wars they don’t strike me as illegal, and I think a soldier should have to defer to the imperfect but still functioning political and judicial institutions as to whether they were illegal, and so far none have declared them so.

        1. If the cemetary is privately owned, the owner should be able to exclude those of his choosing, no argument from me.

          If the cemetary is owned by a public body, different result. There is no constitutional authority for the proposition that a public entity has the right to exlude those that it finds offensive. Restricting speech and protest is not a permissible exercise of a duly granted sphere of power. There is no exception in the first amendmnet for prohibiting speech and protest on cemetaries owned by the state.

          1. I can’t protest on the grounds of the White House.

            1. All are excluded, not just those found “offensive”. TWH is a high security area. You need permission just to be there.

              1. What? What about my absolute right to protest the president?

                1. You are right that we should be able to protest on any non-private property. Currently, the government distinguishes between government and public property. The White House and other off-limit areas are considered government property, not public.

          2. So there’s a right to protest at funerals, just because it’s public land?

            What about Langley since the WH is off limits?

            Or are you saying the government can never limit use of public land to certain specific things the land was supposed to be used for?

          3. Where the funeral is held, is of secondary importance; of primary importance are the wishes of the family and friends of the deceased. No?

            My dad’s ex-wife showed up at his mothers’ funeral. She was NOT invited and NOT welcome, as she (the ex) had bilked him out of what savings he had, and was abusive as well.

            Did we not have the right to toss her ass out of the building before the service? I say yes. Our family, our funeral.

            Now, take complete strangers with malicious intent, and apply it to the same scenario. Fuck ’em if they’ve got lawyers, they’re not there to pay their respects. Kick ’em out.

        2. Public land is not owned by the government, it is owned by the public. If the protesters are part of the public, they can do whatever they want on public land, as long as they don’t damage property or people.

          1. That’s simply not true – there are all kinds of restrictions on public lands, like when you can use it, hours or operation, whether you can stay on that land overnight, if so in what capacity…. etc, etc, etc, etc

            1. Restrictions that I disagree with…

    2. The followers of this guy don’t seem to get it. They cross the line into disturbances that become violent, and they deserve to be shunned by the larger society

      Bingo! You almost have it….

      and when that fails to stop their behavior, they should be put somewhere where they don’t hurt others. In the modern world, that place is called Jail.

      Aaaaand you lost it. Thanks for playing.

  8. You know, since this article was first published in ’06, it’s not exactly new; how about instead labeling it, and other reprints, as “Classic Reason” instead?

  9. I live in Nebraska. We have one of this guy’s followers suing us over her arrest and conviction for flag desecration and funeral disruption.

    I can’t say that I support any charges for “flag desecration” in any circumstances.

    “Funeral disruption” sounds a little weird, too, although as a subspecies of “disturbing the peace” I can see it.

    1. “Funeral disruption” sounds a little weird, too, although as a subspecies of “disturbing the peace” I can see it.

      To support a charge like that one would have to show they are making enough noise that any other noise of the same volume (music, loud drunken partying, etc.) would also constitute disturbing the peace. One can’t support such a charge based on the content of their speech ? repugnant as it is.

      Also, if harley riders were making the same amount of noise, and were not penalized, the Phelps crown would have grounds to plead selective enforcement,

      Obligatory: The US and its allies are engaged in a just war of self-defense in Afghanistan; and Fred Phelps is an idiotic anti-freedom barbarian who should go fuck himself (same goes for Phelps’s supporters).

      1. How do you think the Phelps family came into being, BG? They did fuck themselves.

        1. Good point.

          I meant it as a figure of speech, but people with IQs that low probably won’t grasp that. So if any Phelps family member is reading this: don’t go fuck yourselves; we don’t need any more of you.

  10. Funeral disruption by speech should not be a crime. Nor should thrashing the disruptors.

    1. In MD, you can employ “self-help” where somone’s actions deprive you of the use and enjoyment of your property.

      I’d say that the funeral you paid for, to lay your son or daughter to rest, is “your property” and intimidating those idiot fuckwads within an inch of their life is well within the bounds of “self-help.”

      1. I’m picturing that funeral scene in Live and Let Die for some reason.

  11. I still don’t understand why the respective funeral homes and cemetery can’t just expel the disruptors from the premises. There’s a “function” going on that the property owner, whether government or not, should have the right to use the rights of a property owner to protect.

    1. I was thinking that also. I imagine, like abortion protesters, they assemble on the property’s borders. Hence, the “within 300 feet”.

    2. I’m with MNG on this one. Treat it as a criminal trespass, if they are on cemetery grounds.

      Unfortunately, I seem to recall seeing footage of these scum on the streets and/or just outside the cemetery. In that case, disturbing the peace or something like it works for me.

    3. They can, but then the city gets to choose between backing up the funeral home and getting sued by the ACLU and the jerks disrupting the funeral because their cops forced them to move and “denied their freedom of speech”, or not doing anything. In our case, they acted and now are paying the legal bills for the endless appeals that have been generated from the case.

      Luckily, we now have the harley riders who use their loud pipes to drown out protesters, but this still converts what should be a quiet and respectful service into a battle between idiots screaming that God hates fags and the harley noise.

      Thanks for that. And we wonder why the libertarians never get more than 5% of the vote. Never think about the bystanders who really pay the cost of your beliefs.

  12. Not anymore. The US has clearly become a Police State!

    Jess
    http://www.invisibility-tools.pl.tc

  13. The bill is wrong to single out “protest,” that seems like viewpoint discrimination imo. It should target something like breaches of the peace generally.

    1. Hard to argue with a libertarian that “breach of the peace” is coercive force. I have, however, heard some compelling arguments that high amounts of sound waves should be considered “force.”

  14. “The standard of what offends ‘the common conscience of the community’ conflicts, in my judgment, with the command of the First Amendment. Any test that turns on what is offensive to the community’s standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment.”

    Justice Willian O. Douglas

    1. Hey, that guy was a known liberal, judicial activist and worshiper of Satan don’cha know?

      1. I got that quote from an article written by Nat Hentoff in Hustler Magazine. What would you expect?

      2. William O did some good. No doubt about it.

  15. If the funeral protests are legal, then it should also be legal to stand next to them with large posters depicting Phelps in various bukkake scenes. He has made himself a public figure, after all.

    1. I’m sure the funeral-goers would be grateful…

  16. We have many exceptions to laws…especially the 1st amendment.

    I c no danger of destroying this amendment by merely outlawing individuals from disrupting a funeral.

    1. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless show likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest…
      There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts or dominant political or community groups.

      1. The First Amendment itself, admits of no exceptions. Period. The language does not permit any restrictions.

        It is absolute.

        1. I have trouble accepting anything in terms of absolute. It’s just my nature.

          One could argue that it is not possible for speech (alone) to actually “produce a clear and present danger of a serious substantive evil”.

          1. I have trouble accepting anything in terms of evil. Please give an example of a serious substantive evil.

        2. Actually, an exception to the 1st Amendment should be made if speech is somehow used as coercive force. This is very improbable, though. Libertarians should remember that the 1st Amendment is not justified by itself, it is justified because speech is (almost) never coercive.

    2. I c

  17. Is it too early to drink?

    1. A silly question.

    2. *And* an offensive one.

      1. That’s racist.

  18. Unfortunately, I have to run out and I haven’t RTFA’d, but what, if any, should be the line for seeking redress of “intentional infliction of emotional distress?”

    Should there be such a thing? I say yes. It’s not too hard to imagine psychological actions against someone that exceed physical assault in terms of damage.

    Discuss, if you like.

    1. Doing nasty, shocking things at funerals is a classic way to lose an action for intentional infliction of emotional distress. Particularly for the funeral company (which has a duty it owes the bereaved). Of course, that tort varies a lot from state to state.

      The fact that you have a civil cause of action against someone acting that way doesn’t in itself mean the government would be justified in preventing the harmful speech. That would be a prior restraint, which is a tough hurdle to overcome. Or it was, anyway.

    2. The ole tort of outrage.

      I don’t see it applying here because speech and protest can not form the basis of extreme and outrageous conduct, particularly where, as here, the speech and protest is contesting the warfare/welfare state and its empire building and the extreme and outrageous conduct of the soldier who agreed to be a killing machine for the empire.

      1. Depends what they do. That tort is heavily fact based.

      2. So someone honestly has depression issues due to the loss of a loved one, which is exacerbated by the actions of others during the funeral – and you see no reason to allow the bereaved redress?

        This sticking to absolutes until the become meaningless seems odd…

        As Voltaire said – Doubt is not a pleasant condition, but certainty is absurd.

      3. I’m thinking of the “God hates fags” shitbags. They aren’t protesting anything, except their own lack of nominal intelligence.

        Funeral homes can be sued over the mishandling of bodies, because of the emotional distress it could cause a grieving family. (Yes, I know, not the same thing, but it deos bring in the question of inflicting emotional harm during a funeral).

        Does this sort of conduct, behaving egregiously at the private funeral of a stranger who only happens to be military, cross that line?

      4. particularly where, as here, the “speech and protest is contesting the warfare/welfare state and its empire building and the extreme and outrageous conduct of the soldier who agreed to be a killing machine for the empire.”

        First of all, I think you are over exaggerating a wee bit about how all soldiers are abominations, etc…

        Second of all, if you were actually taking the principles being discussed seriously, you would come to the conclusion that all protest that is not coercive should be allowed, no matter the subject matter of the protest.

        1. What I have done is argue/defend a hypothetical protest as Phelps and his ilk were not protesting along the lines of my position.

          Nevertheless, almost all soldiers willingly chose to join up with Caesar. They willingly chose to become cannon fodder for the empire. Countless numbers have willingly chosen to inflict death upon innocents, upon people who do not have any protection and upon people thousands and thousands of miles away from our homes-all in violation of the constitution as there is no grant of power permitting the state to make war on foreign soil.

          1. If you can prove that any particular soldier has “willingly chosen to inflict death upon innocents” then that person can be tried for war crimes (as some US soldiers have been). However, there is no credible evidence that it is current US policy to do so. (Note: Taliban militants and Al-Qaeda terrorists are not innocents, and accidentally killing civilians is not the same as intentional killing).

            Also, the constitution authorizes the government to keep a military for the common defense of the US – which in the case of the Afghan war includes military action on foreign soil.

          2. The constitution says many things, right and wrong.

  19. Actually, time, place, and manner restrictions are already on the books. The only place I could see a real tension with the right of free speech is for public funerals of public figures. Incidentally, for time, place, and manner regulation, the law has to be content neutral (and the other usual stuff–narrowly tailored, compelling purpose, whatever). Used to know this stuff off the top of my head in the Before Time.

    MNG is right to raise the private property bit, too. Funeral homes and plenty of cemeteries are on private property. The government has already allowed a zone of no-speech around places like abortion clinics, “balancing” the interests of the women seeking abortions (a privacy right, I suppose, as well as a medical right) versus the freedom of speech.

    1. Time and place are not in the First Amendment. Period.

      1. I understand what you’re saying, but it’s established law. The reality is that we’ve always allowed some restriction on speech, even (in some ways, especially) at the beginning. Perjury, for instance, is illegal. So can be inciting a riot. Or treason. Or conspiracy.

        1. But the Supreme Law of the Land says otherwise.

          I suppose prior restraint is where the real action is. I do not think the state has the right to muzzle any speech prior to its utterance. If one does shout fire in a crowded theater and if another is injured thereby, the victim should be able to recover his damages proximately caused by the shouter.

          1. Well, most laws restricting speech are state laws. If we take away judicial interpretation, then I don’t think the Constitution is clear about incorporation. Therefore, “Congress shall make no law. . .” wouldn’t apply to the states.

            1. Upon what basis does a state get to restrict speech? Does any state constitution grant such state the powetr to restrict speech without the express consent of those whose speech the state seeks to restrict?

              Does the fedetal constitution state that the Bill of Rights only applies as against the states?

              PL, you know, or, IMO, should know, that there were plenty in the founding generation who were natural rights advocates and true believers. They recognixed that natural rights beat the shit out of legal positivism. They feared and loathed democracy and the very idea that a legislature should have any power other than to make law only in furtherance of the primacy of individual liberty and free enterprise and the supression of everything collectivist.

          2. If there IS a fire and someone gets injured because of the chaos caused by the shouter moreso than the fire itself which may be small or easily avoidable for the patrons, is the shouter still liable? He didn’t lie. He may have overreacted a tad in some people’s minds, but…

            I know it’s not comparable to the article, but I’m curious of what the law may be in this situation and what everyone here thinks it should be.

            1. Sure. Negligence.

            2. Where’s one’s personal responsibility to not believe any moron shouting fire?

              If someone shouts fire, and you hurt yourself believing an idiot, I say you hurt yourself for your own stupid reason.

              1. TrickyVic, an unfortunate victim of the Great White fire. He heard the warning, but didn’t move. He thought the guy yelling was an idiot.

          3. I always have to wonder when somebody brings this up in a discussion of censorship and inevitably leaves out the MOST IMPORTANT WORD in the phrase: do you simply not know that there is a very important word that comes before “cry of fire”, or do you know and simply leave that inconvienient word out as do most censorship advocates when they bring up this tired meme? Or, for that matter, are you aware of how that decision set up a “clear and present danger” censorship standard (not a “damn that’s annoying or offensive” standard) that was later tightened to an “imminent lawless action” standard years later? “Fire in a crowded theater” is simply not a valid argument for censoring any damn thing you feel like and it never was.

    2. The government has already allowed a zone of no-speech around places like abortion clinics, “balancing” the interests of the women seeking abortions (a privacy right, I suppose, as well as a medical right) versus the freedom of speech.

      There’s a line between speech and an angry mob though. I don’t think they could do anything to someone calmly handing out fliers in front of a building. Blocking the entrance and disrupting the business, however…

  20. My first reactions to dealing with Phelps and his fellow assholes:

    1. Private property
    2. Time and place restrictions

    Other than that, sure – the First Amendment protects his right to stand there and be a whack back jerkoff asshole and harass families who have lost a young loved one.

    He just shouldn’t be too surprised when one of them picks up a shovel lying nearby and judiciously applies it to Mr. Phelps’ hideous visage.

    1. Which would lead to – “not guilty by reason of temporary insanity”.

      1. Probably won’t need it, anyway. The jury is likely to bend over backwards to avoid throwing the book at you.

    2. Nor should the grieving asshole who picks up a shovel be surprised when a defender of Mr. Phelps takes the shovel from the asshole and applies it to him.

      1. Ah, I see – so when I’m standing next to the grave of my 20 year old son who was killed by an IED in Afghanistan, and Fred Phelps and his fellow shitheels are standing there chanting hateful crap about how they’re glad my son is dead, I’m the asshole?

        1. Grieve for the loss of his life; don’t assault those who contest how he threw his life away.

          1. If they want to contest it, fine. Just don’t do it at the graveside while the family is putting the guy in the ground. How anyone can defend that kind of asshat tactic is beyond me – even if you agree with their point of view. There is a time and place for expressing it, and “reverend” Fred is a complete dickhead shitbag for engaging such jackass tactics as harrassing the family who are in deep grief and shock. Talk about assault.

            And who the fuck is Fred Phelps – or you – to claim he “threw his life away”? He chose to join the military, maybe out of a sense of duty to his country, maybe to get a GI scholarship. Either way, he did it knowing the risk of being sent into battle.

            It’s just as reprehensible as the asshats who stand outside an abortion clinic screaming at the women who go in. OK, we get it, you don’t agree with that individual’s choice – but who the fuck do you think you are to harrass the family like that. Judge not lest ye be judged, I seem to recall someone saying.

            All I can say is if I were in the position of being at a graveside when Phelps and his shit squad showed up, I would be conducting an experiment to see how far my foot could fit up someone’s ass. I don’t care how you slice it; in that scenario, only one side consists of assholes.

            1. “How anyone can defend that kind of asshat tactic is beyond me – even if you agree with their point of view.”

              Voltaire can best explain this: “I disapprove of what you say, but I will defend to the death your right to say it.”

    3. Time and place restrictions are still restrictions on free speech.

  21. Instead of posting columns from 2006, how about Lobster Girl and an open thread (if you people must go on vacation at all)?

  22. Major OT — If you’re worried that “So You Think You Can Dance” finalists will starve after the season ends, behold: hier.

    1. eeeewwww!

  23. Messages that are popular and palatable, after all, don’t need constitutional protection, since they are in no danger of being censored.

    Hah.

  24. This is going way too far. Allowing people to tell other people their children deserved to die during their funeral?! Seriously?! How do you even sleep at night?! This is different from allowing Nazi or KKK rallies. Or allowing them to distribute literature. This is not an issue of free speech. Free speech exists precisely because bad ideas will not thrive in the marketplace of ideas. No ideas are being exchanged here. This is 21st century savagery. This is an issue of basic human decency, and unless you lift the ban on beating the shit out these protesters, you are condoning their actions by taking this stance. (God I hate how much I sound like a social conservative right now.) There is no benefit out of protesting a funeral EVER. For fuck’s sake, respect for the dead is one of the (if not the) earliest manifestations of human civilization.

    Granted, this law should be extended to involve all instances: say, anti-gay activists at a homosexual man’s funeral, or member of political party X protesting at a member of political party Y’s funeral (much as I would have *loved* to dance on Kennedy’s grave as part of the ceremony.)

    But come on. Really, come on. COME. ON. Why do I even need to explain this? You know why the slippery slope argument doesn’t apply here? Because it’s a goddamn funeral! Same reason that outlawing shouting “FIRE!” in a crowded movie theatre hasn’t lead to people being hauled away for criticizing the president! It’s different from going to church or a psychiatrist’s office.

    1. So why not just ban funerals?

    2. I’m with you – I don’t understand the difficulty in making a law that states “within X distance of funeral or its participants when the goal is direct protest of the funeral or its participants”

      Just make it a small fine, but arrest-able so protesters can be removed.

      Or make a law where the family can automatically seek redress through civil courts… which I’d like better honestly or as you noted – remove the restriction on others in society to prevent this by themselves.

      Absolutism without morals is what leads to real human travesties.

      1. This isn’t without morals. It is simply without a moral that you share.

      2. “I don’t understand the difficulty in making a law that states “within X distance of funeral or its participants when the goal is direct protest of the funeral or its participants”

        The difficulty is in justifying the use of coercive force on an individual (restricting speech at certain locations) when that individual has not used coercive force on anyone else.

        1. I think yelling “Your son died because god hates fags!” at your son’s funeral constitutes coercion and not political speech.

          Even if you don’t agree with that – it’s still perfectly legitimate to restrict even protests.

          For instance, try associating at a public park at 1 AM, when it closes @ 10 PM?

          The idea you think an absolutist position, not a moral one, is the best way to handle all situations is just odd.

          & K-Y – you are wrong that your position is moral if the results of that position include allowing funeral participants to be harassed by religious bigots.

          Or do the ends justify the means in this case?

          1. “I think yelling “Your son died because god hates fags!” at your son’s funeral constitutes coercion and not political speech.”

            I think you need to look up the definition of coercion…

            “it’s still perfectly legitimate to restrict even protests.”

            How is it legitimate to restrict access to publicly owned land?

            “you are wrong that your position is moral if the results of that position include allowing funeral participants to be harassed by religious bigots.”

            This is just hilarious. Whether or not an action is immoral or not has nothing to do with the result of that action. Only the action itself can be moral or immoral. The act of speaking is almost never an immoral action; it does not violate anyone’s rights.

            “Or do the ends justify the means in this case?”

            As I explained above, that’s what you are arguing, not him.

  25. Perhaps, as was suggested earlier on this thread, people should congregate just outside the Westboro Baptist Church with signs alleging that Rev. Phelps sodomizes monkeys and his daughters.

    1. I have no problem with that.

    2. I’m offended.

      1. You should be after getting sodomized by that douchebag.

    3. Or, depending on where the church is, playing Decide or some other black metal band at 100 dB.

      1. s/b “Deicide”

        1. Whoa. That’s an evil name.

          1. Crap. I probably should have put (NSFW). Also, if you consider yourself a Christian, you probably don’t want to click on the link.

            1. prolly right. there’s a great deal of sensitivity in that crowd 🙂

      2. That is *some* *heavy* *shit*.

        It actually killed my computer.

  26. I’m all for free speech and not banning the stupid shit these tards do. I’m also for walking across the street and getting a coffee when a group of bikers or rednecks become offended by them. Right or wrong stupid has it’s consequences.

  27. “Granting one exception would lead to others. If we silence demonstrators to protect us from emotional upset at funerals, what’s next?”

    Hmm, forcing protestors into chain-link cages out of sight of their political “superiors” so the president et al. won’t be offended, springs to mind.

    1. If I’m not mistaken, that shit started in, of all places, Philadelphia, for the 2000 RNC. I think they called them “Protest Zones”.

      1. The Zone of Freedom.

  28. I don’t know, I think this comes pretty close to the fighting words exemption IMO.

    For example, if my brother (who was in Afganistan) died, and they showed up outside, you can damm well be sure there would be a LOT of fighing, because I would try and put those mother fuckeres in the ground with him.

    1. Why? Just back off; handle yourself with class and dignity.

      1. fuck that, if they chose to come after our family in a time of grief like that, then the’d better be preparted to accept the consequences. Like a bat to the face.

        1. Okay, you want to play savage?

          There is no right to grieve for a person who chose to join up with a state sponsored instrument of terror such that those who frown upon such cowardice are prohibited from voicing such disapproval at the coward’s funeral.

          1. You apparently have a pretty fucking twisted notion of what constituted cowardice. Reverend Fred and his little band of domestic terrorists are cowards.

          2. They are free to voice their disapproval, I’m free to respond.

            What the fuck type of thing would you honestly exepect?

            You think if I showed up at one of the funeral of your wife, son, daughter etc, and started antagnoizing you, that you wouldn’t do the same???

            get real.

            Not only that, I doubt there is a jury that would convict. Justifable violence IMO. Especially in a place like Nebrasska.

            1. the jury would convict you even in Nebraska. You would go to jail and they would take your house in the civil suit.

              The problem that this kind of thing presents is that Phelps and his a hole followers have nothing better to do than file appeals. Bellevue, Nebraska (where our suit started) has other things to do with it’s time and money.

              So, these guys eventually wear the system out. Meanwhile the family is harassed, the cops are forced to spend a bunch of money on their own lawyers, and the taxpayers are forced to pay for appellate lawyers they would not otherwise have to.

              I like the Japanese system where you lose and you pay. Put the church and the other property they own in jeopardy, and we will at least be able to get some of the legal bills paid for. So far, three years later, she was convicted, and has lost 3 appeals and is filing a 4th. If we could take their stuff, then she could appeal till to cows come home, and we would pay the bills without the innocent taxpayers having to suffer.

        2. Great, so your response is to cause greater harm to yourself.

          They can’t avoid being idiots, but you can avoid prison.

          1. What gives?

            The family of a fallen statist should be allowed to go troglodyte because they were “offended?”

            1. Sometimes I think that Libertymike is one of those guys holding up the “Thank God for IEDs” sign.

      2. HA! “Handle yourself with class and dignity”?

        You mean like holding up “God Hates FAGS” and “Thank God for IED” signs at a funeral, while the family is there, sobbing at the gravesite? That’s behaving with class and dignity?

        You really are a first-class, grade-A shitheel, aren’t you.

  29. Nor should the grieving asshole who picks up a shovel be surprised when a defender of Mr. Phelps takes the shovel from the asshole and applies it to him.

    Thievery! Shoot the fucker for violating your proppity rights.

  30. I’m willing to tolerate a certain amount of statist insanity if its funny. Phelps getting sentenced to a makeover on “Queer Eye for the Hate Guy” would qualify.

    And before you remind me just how dated is that reference, let me say: it would have been current when this article was.

  31. I consider dueling a lost right. If a protestor would have to face being challenged to a duel. They might think twice before protesting a funeral.

    1. It’s romantic and all, but dueling only proves who’s the better fighter. The world is a better place to live without duels.

      1. So what if dueling only proves who the better fighter is. If both individuals agree to the terms of the fight. What right does anyone have to interfere?

        1. If two people want to fight, fine, there’s nothing stopping them from doing that right now. You suggest the protestor’s behavior would change if “challenged to a duel”.
          What if they say “No thank you” and return to protesting? What did you accomplish?
          Social dueling is based on the idea a person *can’t* refuse to duel, once challenged, and that is evil.

          1. If someone refused to duel there is nothing that could be done to them, other then calling them a coward.

            1. “If two people want to fight, fine, there’s nothing stopping them from doing that right now.”

              That’s not true. There are laws that outlaw acts of violence against other people even when the two parties involved agree to the fight.

    2. Me too.

  32. I consider dueling a lost right.

    Agreed

  33. Duelling would be really cool if it involved pianos and catapults.

    “You have to stand on the “X” and not move, according to the Code Duello.”

    1. Giant rubber-bands and Acme-brand explosives.

      1. Take it from me… do NOT order shit from Acme. I’m still recovering from the last jet-powered pogo stick accident, and you do not want to know where it wound up.

        1. I do!

  34. Jousting on jet-powered rollerskates.

    1. As long as both parties agree to the terms it should be allowed.

  35. If private clubs have the right (in theory, at least… apparently, a cigar-smokers’ club can’t technically be within the law if there is a no-smoking ordinance on the books) to decide what goes on within their realm, then such should apply to funerals.

    1. The protesters are never on private land.

  36. Obscenity is not protected by the First Amendment.

  37. Too bad that didn’t work for another odious commenter, William A. White, who’s now going to serve up to 35 years for speech violations.

  38. Ok, I’ll bite the fact that it shouldn’t be a law.

    At the same time, I have no sympathy for said protester if they happen to get… hurt while demonstrating.

    Just saying.

  39. Just because something’s Constitutional, doesn’t mean you should do it. Altough it technically is constitutional, it’s in extremely poor taste to do this sort of stuff. It’s constitutional to drink a 5th of Jack Daniels in 5 minutes too. Doesn’t mean it’a a good idea.

  40. Of course, the left is against this sort or “offensive speech” until they hear religious words on public grounds. Then the Stalinist in them comes out in full force.

  41. i always thought a better choice would be to counter protest across form them by getting a bunch of guys who are comfortable naked or nearly naked and do an old fashion man grind. it should be offensive enough for the church to disperse done enough times they become trained not to be assholes no need for a law

  42. “I disapprove of what you say, but I will defend to the death your right to say it.” -Voltaire

  43. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won’t get the full deal by just doing regular skill english reading for those books. In other words, there’s more to the books of the Bible than most will ever grasp. I’m not concerned that Mr. Crumb will go to hell or anything crazy like that! It’s just that he, like many types of religionists, seems to take it literally, take it straight…the Bible’s books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on…the Bible’s books were written by people with very different mindsets…in order to really get the Books of the Bible, you have to cultivate such a mindset, it’s literally a labyrinth, that’s no joke

  44. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won’t get the full deal by just doing regular skill english reading for those books. In other words, there’s more to the books of the Bible than most will ever grasp. I’m not concerned that Mr. Crumb will go to hell or anything crazy like that! It’s just that he, like many types of religionists, seems to take it literally, take it straight…the Bible’s books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on…

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