How far should free speech protection extend?

[Voronwë the Faithful]

The U.S. Supreme Court heard oral argument yesterday in the case of Snyder v. Phelps an important case in free speech jurisprudence. For those who are not familiar with the ugly facts of the case, the son of petitioner Albert Snyder was a soldier killed in the Iraq war. Respondent Fred Phelps is the leader of the Westboro Baptist Church (described in one of the amicus briefs filed in the case on behalf of neither side as "a sorry caricature of Christianity) which engages in the obscene practice (in my opinion) of protesting at the funerals of soldiers killed in the Iraq and Afghanistan wars because (among other things) they believe that the wars are a punishment to the U.S. for tolerating homosexuality. Phelps and his followers showed up at Corporal Snyder's funeral, armed with various inflammatory signs attacking the U.S., the Marines, homosexuals,
and the Catholic Church. Albert Snyder sued Phelps and some of his followers for intentional infliction of emotional distress, and was awarded a multi-million dollar judgment. However, Phelps appealed, and the Court of Appeal reversed, ruling that Phelps' conduct, while abhorrent, was protected speech under the First Amendment. To add insult to injury (or vice-versa) Snyder was subsequently ordered to pay Phelps' court costs. However, the SCOTUS granted certiorari, and heard the case yesterday.

The case has generated a huge amount of attention. Interestingly, an amicus brief was filed on Snyder's behalf by "Senators Harry Reid and Mitch McConnell and 40 Other Members of the U.S. Senate" an eclectic, bipartisan group across the political spectrum. Various veterans groups also filed amicus briefs on Snyder's behalf, as did 48 states and the District of Columbia. On the other side of the coin, the ACLU, various other defenders of first amendment rights, and media filed amicus briefs on Phelps' behalf. And two amicus briefs (including one by the anti-Defamation League) were filed on behalf of neither party, arguing that this case was not a good fit for deciding the questions posed in the petition for certiorari. Those questions are:

1. Does Hustler Magazine, Inc. v. Falwell apply to a
private person versus another private person
concerning a private matter?
2. Does the First Amendment's freedom of speech tenet
trump the First Amendment's freedom of religion and
peaceful assembly?
3. Does an individual attending a family member's
funeral constitute a captive audience who is entitled to
state protection from unwanted communication?

Hustler v. Falwell was an important First Amendment case in which Jerry Fallwell sued Hustler after it published an offensive cartoon about him. The Supreme Court ruled that the First Amendment protected Hustler from being sued in that case. But that case involved a media outlet (such as it is) versus a public figure. This case obviously presents quite a different situation.

Here is an excellent summary of how the oral argument went, and what the justices seemed to be thinking: Commentary: What role for emotion? I think it is extremely likely that the final result will be something that strongly reflects this:

By the end of the argument, it seemed that, if the Justices could settle on a legal principle to govern funeral protests of the kind that greeted the service for Marine Lane Corporal Matthew Snyder, it might well be the compromise position suggested at one point by Justice Stephen G. Breyer. The First Amendment would allow a lawsuit for outrageously causing harm to someone’s emotional life — at least at a funeral — but limit it so that it would not forbid all forms of protests at such an event. As Breyer put it: “What I’m trying to accomplish, to allow this tort to exist but not allow the existence of it to interfere with an important public message where that is a reasonable thing to do.”

But (perhaps not surprisingly) the best and most concise summary comes from Justice Ginsburg:

“this is a case about exploiting a private family’s grief. Why should the First Amendment tolerate that?”

[Holbytla]

At some point common sense has to enter the picture.
In the case summary for Feiner v. New York (yes I googled it) there is a reference to something akin to this. (bolding mine)

Held: “The language of Cantwell v. Connecticut, 310 U.S. 296 (1940), is appropriate here. ‘The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious.’ 310 U.S. at 308. The findings of the New York courts as to the condition of the crowd and the refusal of petitioner to obey the police requests, supported as they are by the record of this case, are persuasive that the conviction of petitioner for violation of public peace, order and authority does not exceed the bounds of proper state police action. This Court respects, as it must, the interest of the community in maintaining peace and order on its streets. Schneider v. State, 308 U.S. 147, 160 (1939); Kovacs v. Cooper, 336 U.S. 77, 82 (1949). We cannot say that the preservation of that interest here encroaches on the constitutional rights of this petitioner.”
“We are well aware that the ordinary murmurings and objections of a hostile audience cannot be allowed to silence a speaker, and are also mindful of the possible danger of giving overzealous police officials complete discretion to break up otherwise lawful public meetings. ‘A State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions.’ Cantwell v. Connecticut, supra, at 308. But we are not faced here with such a situation. It is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace. Nor in this case can we condemn the considered judgment of three New York courts approving the means which the police, faced with a crisis, used in the exercise of their power and duty to preserve peace and order. The findings of the state courts as to the existing situation and the imminence of greater disorder coupled with petitioner's deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech.”

I don't believe any riots have been caused to this point by Fred Phelps et al, but should we wait until there is a riot before something is done? I know that if I were in Albert Snyder's shoes I would be causing a disturbance.

There is a time and a space for everything, and I would suggest that demonstrating at a soldier's funeral, aside from being in poor taste, is inciting anger and a cause for breaching peace. Free speech should not supercede public safety and private peace.

[vison]

US law is very different from Canadian law, but our right of free speech is pretty large and probably if a Canadian behaved as Phelps did he would be protected by it - as far as the right of free speech goes. But, I wonder if our law might say that a funeral is a "private" affair and if that would change anything?

I visualize a situation where some horrible person is being buried - maybe an executed murderer, and the families of his victims turn up with signs saying, "We're glad he's dead" or something of that nature. Would there be the same outcry as over Phelps?

Don't get me wrong: I think what Phelps does is disgusting, and I hope the law can find a way to stop him without infringing on his right to free speech. Maybe designating a funeral as "private" no matter where it's held?

[Túrin Turambar]

I tend to support the right to say anything that isn't treason, breach of patent or copyright, libel or incitement to commit crime, but I don't necessarily support the right to say it anywhere.

That, I think, is the issue in this case.

[Ghân-buri-Ghân]

The right to free speech is far too important to allow it to suffer "death by a thousand cuts". Unfortunately, there are times when people exercising this right say things that we may find deeply abhorrent. This is a price we pay, but it behooves us to raise ourselves above those who either try to provoke us, or hold beliefs that we disagree with. The road to Hell is paved with good intentions. Curtailing "hate speech" is one step on that journey.

[Pearly Di]

The right to free speech is far too important to allow it to suffer "death by a thousand cuts". Unfortunately, there are times when people exercising this right say things that we may find deeply abhorrent. This is a price we pay, but it behooves us to raise ourselves above those who either try to provoke us, or hold beliefs that we disagree with. The road to Hell is paved with good intentions. Curtailing "hate speech" is one step on that journey.

The right to free speech, yes.

Not the 'right' to harass other people at their loved ones' funerals.

Phelps and his loathsome little cult are surely a public nuisance.

[Ghân-buri-Ghân]

The right to free speech is far too important to allow it to suffer "death by a thousand cuts". Unfortunately, there are times when people exercising this right say things that we may find deeply abhorrent. This is a price we pay, but it behooves us to raise ourselves above those who either try to provoke us, or hold beliefs that we disagree with. The road to Hell is paved with good intentions. Curtailing "hate speech" is one step on that journey.

The right to free speech, yes.

Not the 'right' to harass other people at their loved ones' funerals.

Phelps and his loathsome little cult are surely a public nuisance.

Yes, I understand the distinction, and the distaste for the actions of those who demonstrate in such ways. However, I still maintain that redefining such free speech activity "harrassment" is one of those thousand cuts that erodes the principle of free speech. I don't like it, and you don't like it. The families certainly don't like it, but not liking it is insufficient reason to ban it.

[Dave_LF]

Phelp's "loathsome little cult" is also a very opportunistic one. I've little doubt the guy believes what he preaches, but WBBC's protests are also highly strategic; their whole MO is to be as outrageous and provocative as possible, then sue the pants off anyone who gets in their way, all in the name of free speech (the police and city usually get sued too for failing to provide security). At the very least, they're consciously gaming the system. I read a rather illuminating article on this a while back; can't remember where, unfortunately.

Edit: This isn't what I read, but it makes the same point:
http://kanewj.com/wbc/

[Pearly Di]

Yes, I understand the distinction, and the distaste for the actions of those who demonstrate in such ways. However, I still maintain that redefining such free speech activity "harassment" is one of those thousand cuts that erodes the principle of free speech. I don't like it, and you don't like it. The families certainly don't like it, but not liking it is insufficient reason to ban it.

I think it is harassment, pure and simple. And it is outrageous that the person offended against should be ordered to pay Phelps's court costs.

To quote from Voronwë's original post:

But (perhaps not surprisingly) the best and most concise summary comes from Justice Ginsburg:

“this is a case about exploiting a private family’s grief. Why should the First Amendment tolerate that?”

[Ghân-buri-Ghân]

I think it is harassment, pure and simple. And it is outrageous that the person offended against should be ordered to pay Phelps's court costs.

Again, I think that is an unfortunate outcome, but bringing the Phelps to court runs the risk of losing the case, and paying the consequences. Far better to broadcast the distaste for Phelps and his actions, rather than attempt to curtail free speech, even when that free speech is felt to be beyond the pale.

To quote from Voronwë's original post:

But (perhaps not surprisingly) the best and most concise summary comes from Justice Ginsburg:

“this is a case about exploiting a private family’s grief. Why should the First Amendment tolerate that?”

I do not agree with Justice Ginsburg, in that "exploiting a family's grief" should be grounds for what is, in effect, gagging. This appeal to emotion leads, I fear, to (and forgive the repetition) the death of free speech by a thousand cuts. Once a line is drawn, and it can only be drawn arbitrarily, the instinct is to keep moving that line, and that is a dangerous attack on liberty. Holocaust Denial? Blasphemy? Burning flags? Insulting the leader? There is always someone who is offended. The law is a very blunt tool for "protecting" an individual from offence.

[JewelSong]

There could be an order issued that any demonstrations at private events, such as funerals, must be a certain distance from the event.

There is certainly precedent for this - such as the demonstrators outside abortion clinics.

Move Phelps & Co far enough away and they will no longer have the satisfaction of knowing that they are disturbing the family.

[axordil]

There's already several cuts in the body of free speech, though, and have been for a long time. Some rise and fall, like fighting words--others, like panic inducement, are still in force. I don't believe all exceptions lead down that slippery slope. I also believe it's virtually impossible to tell which will, though.

[yovargas]

There could be an order issued that any demonstrations at private events, such as funerals, must be a certain distance from the event.

I was under the impression this was already the case?

[Ghân-buri-Ghân]

There's already several cuts in the body of free speech, though, and have been for a long time. Some rise and fall, like fighting words--others, like panic inducement, are still in force. I don't believe all exceptions lead down that slippery slope. I also believe it's virtually impossible to tell which will, though.

I think that is a very important issue you raise, axordil. When composing my argument, I was aware of the little nagging voice in the back of my head asking about the shouting of "Fire!" in a theatre. Surely to make such an activity illegal is to curtail free speach? On an absolutist level, the answer must be yes, but I think there really is a difference between this and causing offence, in the same way as shooting a gun at a target and a person are two different activities. The first is acceptable, whereas the second isn't. I believe such is the case between making statements of opinion, such as Phelps (even though those statements cause offence) and making statements designed to cause panic and injury, such as shouting "Fire!" in a theatre. However, I am less than 100% comfortable with the distinction between the two, and feel I need to explore more deeply the differences, and resulting allowability of the two cases.

[Voronwë the Faithful]

Yes, it's a tricky issue. The automatic emotional response is to say that this abhorrent behavior should not be tolerated. But I'm more than a little uncomfortable with setting a precedent that could be used to curtail the ability to express unpopular opinions. Still, I think because of the special circumstances of this case they should be able to carve out a particular exception that applies only to funerals and does not have an unreasonably chilling effect on the right to free speech.

[nerdanel]

I'm going to take the liberty of speaking as a layperson on this one...

The Fourth got this one right. Phelps and his band of clowns are utterly outrageous, cruel, mean-spirited, bizarre, and despicable. Their behavior at funerals is egregiously more so. And they choose to broadcast their message at times that literally make no sense - "God hates fags" at military funerals, where our military has a "don't ask don't tell" policy...? You'd think their god would be pleased with our bigoted military!

That said, for me a fundamental aspect of our American identity and constitution is that we as a society view free speech as a very nearly-absolute right. As with capital punishment, our approach here sets us aside from many of our fellow Western democracies; although I respect their reasons for electing a different approach (and even believe that a different approach may be necessary in Europe in view of their 20th century history), I believe we should staunchly adhere to ours.

I'm with Ghân on this one, particularly re: the distinction between speech designed to cause physical/practical harm (fighting words/panic-inducement) and speech designed to cause emotional harm (a very large subset of speech, actually). I feel quite strongly that funerals do not merit an exception. I would be far more content to have the WBC at my funeral than to abridge free speech one inch because it is "offensive". I support moving these demonstrators some distance away from the funeral and/or blocking them from view via counterdemonstration. Both of these things have routinely been occurring at Phelps-picked funerals. But as odious and juvenile as their speech is, I don't think we should suppress it - and I certainly don't think it is tortious.

Incidentally, although it is not possible to do this at funerals, in all other venues this is how our country responds to absurd free speech - with still more absurd free speech:

San Francisco shows how it's done: http://laughingsquid.com/san-franciscos ... st-church/

ComiCon nerds see San Francisco's "God hates kittens" and raise them a "God hates Jedi": http://www.comicsalliance.com/2010/07/2 ... st-church/

grammar edit

[Voronwë the Faithful]

nel's post has helped convinced me that the SCOTUS should definitely rule to reverse the Fourth Circuit's decision. Sometimes one needs to have the opposing viewpoint concisely expressed in order to determine that you disagree with it.

[JewelSong]

Incidentally, although it is not possible to do this at funerals, in all other venues this is how our country responds to absurd free speech - with still more absurd free speech:/

The Patriot Guard Riders can be invited to show up at funerals as a counter-protest. They physically but silently block the view of Phelp's group with their bikes and bodies.

http://en.wikipedia.org/wiki/Patriot_Guard_Riders

The Patriot Guard Riders attend the funerals of members of the United States Armed Forces at the invitation of the deceased’s family.

The group was initially formed to shelter and protect the funerals from protesters from the Westboro Baptist Church, who claim that the deaths of American troops in Iraq and Afghanistan are divine retribution for American tolerance of homosexuality. The Patriot Guard positions itself to physically shield the mourners from the presence of the Westboro protesters by blocking the protesters from view with their motorcade, or by having members hold American flags. The group also drowns out the protesters' chants by singing patriotic songs or by revving motorcycle engines.

[nerdanel]

The automatic emotional response is to say that this abhorrent behavior should not be tolerated.

What is interesting about this discussion, juxtaposed against the capital punishment discussion, is this. I suspect that many people who noted an "automatic emotional response" in favor of capital punishment, then reached a final, reasoned conclusion against capital punishment are people whose final, reasoned conclusion on this free speech issue will resemble their automatic emotional response (i.e., that Phelps' speech should not be permitted).

(In contrast, my "automatic emotional response" and final reasoned conclusion are the same on capital punishment, but different on many free speech issues, including this one.)

But really, V, I know what this is all about. You just don't like my endorsing San Francisco's "God hates kittens" poster.

[Frelga]

Phelps is a RL equivalent of an Internet troll, doing his utmost to cause trouble and then crying, "But I didn't break any rules!" when taken to task. Ironically, on some boards trolls actually attempt to use the First Amendment as an excuse. Never works.

As with online trolls, the best thing to do about Phelps is to ignore it, although I think it is not farfetched that in the real world he may run into what I think another thread termed assault provoked by "sudden passion" and I expect a jury on that one will be lenient.

However. Trolling a funeral is an activity calculated to induce pain and suffering. Nobody stops Phelps from spewing his poison in other public places. Preferably where a bunch of retired Marines hang out, but we can't expect a troll to have that much guts.

Why is an assault with words protected where an assault with fists is not?