We all know Fred Phelps and his merry band. They are disgusting, despicable, depraved. And constitutionally protected:
The First Amendment protects hateful protests at military funerals, the Supreme Court ruled on Wednesday in an 8-1 decision.
Speech is powerful,” Chief Justice John G. Roberts Jr. wrote for the majority. “It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.”
But under the First Amendment, he went on, “we cannot react to that pain by punishing the speaker.” Instead, the national commitment to free speech, he said, requires protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.”
At first glance, it looks like a well-reasoned opinion. It recognizes the extra care needed for the protection of speech about matters of public concern yet leaves open time, place and manner restrictions (Roberts specifically mentions buffer zones for things like funerals). Note the observation that our commitment to free speech requires protection of "even hurtful speech." Buf if there were no such thing as hurtful speech, would we even need the First Amendment?
Comments
Can you believe something that 30 or 40 years ago would have been settled in the first court in the first case (if it even got that far) with plain old common sense had to be "settled" by the highest court in the land?
Before the trial lawyers were able to successfully obfuscate the simplest of infractions and create gazillions of new laws covering every possible scenario, it was very simple. Yes you have the right to protest, but disorderly conduct will get you arrested.
Shakespeare was right.
It's only been about 40 years since Sammy Davis, Jr was unable to perform in most states, for fear of being arrested for marrying Mae Britt. Marriage was defined then as being between one man and one woman, both of them of the same race.
And in that era, nobody felt a need to proclaim that the military was damned for allowing gay soldiers to serve. If you had a wide stance, you not only weren't allowed to serve in government, but you could be arrested in most jurisdictions.
This was local news for me; Albert Snyder is from York County, PA. There's much to be said for the majority opinion, but Alito's minority opinion is persuasive as well. Matthew Shepherd was not a public figure. By demonstrating at Matthew's funeral (as well as hundreds of other funerals), they are conveying the impression that the deceased was damned by God for what many consider to be immorality. The IIED sets a particularly high burden on the plaintiff, and Albert Snyder met that burden.
The consequence of this decision will be disorderly conduct. Someone will quietly tell Phelps to relocate his demonstration a few miles away, and when Phelps declines to do so, a hockey game will break out.
If the funeral were held today, there's a new law that would result in Phelps' arrest, but adding law upon law upon law is like adding regulation upon regulation upon regulation. It's no more desirable than violence is, not when IIED lawsuits would solve the problem.
The SCOTUS delivered 2 decisions today. I think they did an excellent job on Pepper v. United States. On Snyder v. Phelps et al, I'm not sure Alito didn't get it right.
Is the Harl Delos guide to obtuse references available in paperback yet?
Calendars are available in your nearest feed store. When you collect a few of them, the moisture behind your ears will evaporate, Tim.