Marine Father ordered to pay Fred Phelps court fees

[vaskidmark]

kgbsquirrel -

Let's look at what "fighting words" are.  SCOTUS said "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.[note 5] "Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument."

"Thank God for IEDs" - lewd and obscene - NOPE profane - NOPE  libelous - NOPE insulting or "fighting" words--those which by their very utterance inflict injury - MAYBE or tend to incite an immediate breach of the peace - NOPE

"Thank God for Dead Soldiers" - lewd and obscene - NOPE profane - NOPE  libelous - NOPE insulting or "fighting" words--those which by their very utterance inflict injury - MAYBE or tend to incite an immediate breach of the peace - NOPE

"God Hates Fags" - lewd and obscene - NOPE profane - NOPE  libelous - NOPE insulting or "fighting" words--those which by their very utterance inflict injury - MAYBE or tend to incite an immediate breach of the peace - NOPE

"USA Fag Nation" - lewd and obscene - NOPE profane - NOPE  libelous - NOPE insulting or "fighting" words--those which by their very utterance inflict injury - MAYBE or tend to incite an immediate breach of the peace - NOPE

"God is Your Enemy" - lewd and obscene - NOPE profane - NOPE  libelous - NOPE insulting or "fighting" words--those which by their very utterance inflict injury - MAYBE or tend to incite an immediate breach of the peace - NOPE

"America Is Doomed" - lewd and obscene - NOPE profane - NOPE  libelous - NOPE insulting or "fighting" words--those which by their very utterance inflict injury - MAYBE or tend to incite an immediate breach of the peace - NOPE

"Fags Doom Nations" - lewd and obscene - NOPE profane - NOPE  libelous - NOPE insulting or "fighting" words--those which by their very utterance inflict injury - MAYBE or tend to incite an immediate breach of the peace - NOPE

"Thank God for Dead Soldiers" - lewd and obscene - NOPE profane - NOPE  libelous - NOPE insulting or "fighting" words--those which by their very utterance inflict injury - MAYBE or tend to incite an immediate breach of the peace - NOPE

We need to remember that Chaplinski was decided in 1942, when being called a fascist was more than just saying someone held certain political ideas - at that time it was calling someone a current enemy of the State currently engaged in open war against the State.

And I disagree with your contention that "Thank God for IEDs" and "Thank God for Dead Soldiers" would incite to violence based on nothing except the recorded fact that no soldiers - current or former - have resorted to violence upon seeing those words displayed at a funeral.  The words may inflict injury (if emotional distress is in fact an "injury").

Without a doubt they "hurt the feelings" of the bereaved and the mourning.  But hurt feelings do not in my mind rise to the level of injury the Chaplinski court was considering.  SCOTUS said "On the authority of its earlier decisions, the state court declared that the statute's purpose was to preserve the public peace, no words being "forbidden except such as have a direct tendency to cause acts of violence by the persons to whom, individually [emphasis added, the remark is addressed." It was further said: "The word 'offensive' is not to be defined in terms of what a particular addressee thinks. . . . The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . The English language has a number of words and expressions which by general consent are 'fighting words' when said without a disarming smile. . . . Such words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings. Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. . . . The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker--including 'classical fighting words', words in current use less 'classical' but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats."

Points for knowing of Chaplinski but BZZZZ no Kewpie doll.  SCOTUS says the words need to be spoken to a clearly identifiable individual.  Signs do not speak, and chants are not addressed to a single clearly identifiable individual.  Thus the case is irrelevant.

And I still hate Illinois Nazis and WBC.  But they have a protected right to demonstrate and display their signs, and I see the need to continue to protect that right regardless of how offensive the message the signs convey.

stay safe.

skidmark

[MechAg94]

Suddenly I see an opportunity to put the KKK on the front lines; make them some signs identical to the WBC ones except for replacing "soldiers" with the obvious epithet, send them to some black funerals, and see how the courts try to justify treating the two any differently.

True.  The courts I think would go out of their way to declare this hate speech and side against them. 

I really don't see why states couldn't simply restrict protests/demonstrations at grave sites or at least within a certain distance of funerals.  IMO, what these people are doing is a bit beyond simply free speech.

[Jim147]

True.  The courts I think would go out of their way to declare this hate speech and side against them. 

I really don't see why states couldn't simply restrict protests/demonstrations at grave sites or at least within a certain distance of funerals.  IMO, what these people are doing is a bit beyond simply free speech.

Legislation
On May 24, 2006, the United States House and Senate passed the Respect for America's Fallen Heroes Act, which President Bush signed five days later. The act bans protests within 300 feet of national cemeteries—which numbered 122 when the bill was signed—from an hour before a funeral to an hour after it. Violators face up to a $100,000 fine and up to a year in prison.[85]
As of April 2006, at least 17 states have banned protests near funeral sites immediately before and after ceremonies, or are considering it. These are: Illinois,[86][87] Indiana,[88] Iowa,[89] Kansas,[90] Kentucky,[91] Louisiana,[92] Maryland,[93] Michigan,[94] Missouri,[95] which passed the law, and Nebraska, Ohio, Oklahoma,[96] South Carolina,[97] South Dakota, Texas, Vermont, Virginia, West Virginia, and Wisconsin.[98] Florida increased the penalty for disturbing military funerals, amending a previous ban on the disruption of lawful assembly.[99]
These bans have been contested. Bart McQueary, having protested with Phelps on at least three occasions,[100] filed a lawsuit in federal court challenging the constitutionality of Kentucky's funeral protest ban. On September 26, 2006, a district court agreed and entered an injunction prohibiting the ban from being enforced.[100] In the opinion, the judge wrote:
“   Sections 5(1)(b) and (c) restrict substantially more speech than that which would interfere with a funeral or that which would be so obtrusive that funeral participants could not avoid it. Accordingly, the provisions are not narrowly tailored to serve a significant government interest but are instead unconstitutionally overbroad.   ”
The American Civil Liberties Union filed a lawsuit in Missouri on behalf of Phelps and Westboro Baptist Church to overturn the ban on the picketing of soldier's funerals.[101] The ACLU of Ohio also filed a similar lawsuit.[102]

jim

[MechAg94]

Okay, so it is tied up in court.  Glad they tried. 

If the 1st amendment is going to be treated as a near infinitely unlimited right, then so should the 2nd.

[MicroBalrog]

One commentor on the site had a very good point, What if I stood outside the NAACP all day screaming "God hates N-words" all "N-words are going to hell".

Well, wouldn't liberals be as upset (rightly IMO) by 'God hates fags' as 'God hates N-s'?

[roo_ster]

Well, wouldn't liberals be as upset (rightly IMO) by 'God hates fags' as 'God hates N-s'?

No, despite contemporary attempts to elevate those who are practicing(0) homosexuals to the status of secular saints, blacks still rate higher in the liberal cosmology. 

For examples, see:
1. The Wash DC gov't firing of the homosexual employee who used "niggardly" and was misunderstood by black DC city employees...

2. Perez Hilton vs some thuggish black entertainer, where Hilton tossed verbiage & the thug tossed fists...

The "Numinous Negro" trumps all others seeking preferred victim status.




(0) "Practicing," because, well, they just can't get it right

[SteveS]

Points for knowing of Chaplinski but BZZZZ no Kewpie doll.  SCOTUS says the words need to be spoken to a clearly identifiable individual.  Signs do not speak, and chants are not addressed to a single clearly identifiable individual.  Thus the case is irrelevant.

And I still hate Illinois Nazis and WBC.  But they have a protected right to demonstrate and display their signs, and I see the need to continue to protect that right regardless of how offensive the message the signs convey.

stay safe.

skidmark

Good point and if people are interested in this, they should read R.A.V v. City of Saint Paul 505 U.S. 377 (1992).  The Court, referencing Chaplinksi, said that placing a burning cross in the yard of a black family was protected speech.  I should not that they also said there were other ways that Minnesota could have handled this that didn't infringe on the 1st Amendment. 

[Battle Monkey of Zardoz]

I predict the USSC will side with the Father. Sure this idiots have a right to their speech. But something called Time, Place and Manner will have an entrance.

If they don't side with the Father. Boy ate they opening the floodgates for all sorts of N-word protests protected.

[MicroBalrog]

If they don't side with the Father. Boy ate they opening the floodgates for all sorts of N-word protests protected.

Not new.

[Battle Monkey of Zardoz]

^

MB

I was meaning worse that that. Much worse.

[Headless Thompson Gunner]

Beg to differ with you on that last part.  There are reasonable restrictions on "free speech" such as not inciting to riot, not uttering a liable or slander, and not advocating the violent overthrow of the government.  Causing "pain and suffering" is not one of the things the .gov can resasonably restrict me from doing.  Your recourse for hurt feelings is to seek redress through the civil processes.

Regardless of where your recourse lies, you are not permitted to injure another person.  It doesn't matter whether you use fists or guns or words to harm people, it's wrong.

And yes, the things the WBC people say and write on their signs, and the time/place/manner in which they do their protests, is easily injurious to a grieving family member.  The lower court was right to award the father $5mil for the emotional pain the WBC sought to inflict on him.

What you seem to be saying is that someone's right to free speech trumps other peoples rights not to be injured.  Well, if that's true, then what's to say I couldn't perform a human sacrifice in the name of my religion?

[kgbsquirrel]

.... SCOTUS said "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.[note 5] "Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument."

"...social interest in order and morality." I'd just like to point out that I dislike this part of the ruling because this necessitates that someone apply their personal opinion to the matter. Morals are not a universal constant. The bold section however is applicable below.

And I disagree with your contention that "Thank God for IEDs" and "Thank God for Dead Soldiers" would incite to violence based on nothing except the recorded fact that no soldiers - current or former - have resorted to violence upon seeing those words displayed at a funeral.  The words may inflict injury (if emotional distress is in fact an "injury").

May 21st, 2006, WBC's message incited a mob to form and overrun the police lines keeping WBC separated from counter protesters. WBC had to be rapidly by the police. After they got into the van it was beat upon by the mob resulting in at least one broken window. Other violence has been directed at them in the form of arson and other petty manners such as having drinks thrown at them from passing vehicles and being spit upon, which if my memory serves is legally considered assault. If these different spontaneous violent acts, up to and including a riotous mob, do not count for a breach of the peace, then what does?

Without a doubt they "hurt the feelings" of the bereaved and the mourning.  But hurt feelings do not in my mind rise to the level of injury the Chaplinski court was considering.  ...

Chaplinsky called the Marshall a fascist and a racketeer. Focusing on the fascist remark and in the context of 1947 this man was equating the Marshall with a foreign power that we were recently at war with. Today, while WBC is not calling anyone Taliban or Al Qaeda, that they are espousing a position of being grateful for a foreign power/entity killing our soldiers, who are actively engaged in combat, would seem to be in a similar vein. I should note that this also opens up other avenues of prosecution for things such as giving aid and comfort to the enemy. Now in that light, essentially acting as a cheer leader for a current foreign enemy, would you still consider it protected speech?




What a wonderfully convoluted era in which we live eh? Here's a thought though. The first amendment, in my layman's understanding, is there to protect the minority opinion, but it does not compel one to listen to it. Do you think it be considered a breach of the 1st amendment to say, have a military commander of the local reserve or guard post send a train of 5-ton cargo trucks to line the street completely obstructing the funeral procession/motorcade from being able to see or hear the protesters? It would be part of rendering honors at a military funeral of course.    They still get to go off with their rants, it's just that nobody is gonna see it.

[MicroBalrog]

And yes, the things the WBC people say and write on their signs, and the time/place/manner in which they do their protests, is easily injurious to a grieving family member.  The lower court was right to award the father $5mil for the emotional pain the WBC sought to inflict on him.

How is what the WBC wrote on their signs worse than a burning cross on a black man's lawn?

[Headless Thompson Gunner]

How is what the WBC wrote on their signs worse than a burning cross on a black man's lawn?

To me, the WBC signs don't amount to much.  No personal investment for me, other than the annoyance 'tards excelling at their craft.

But for a grieving family laying their son/husband/father/brother to rest...?  That could induce a serious emotional injury.  I've known people who required years and years of medical help over lesser emotional distresses than that.

Worse, I think the WBC people do their deeds deliberately with emotional distress for family members as a goal and a purpose.  It may not be their primary purpose, but it is intentional nonetheless.

Can burning a cross cause the same sort of damage?  I dunno.  I suppose it could, potentially.  Or maybe not.  I suppose it all depends on the particular individual being targeted, and the related circumstances.

[Battle Monkey of Zardoz]

Burning a cross at the funeral of a black person that had been hung by the clan.

That would equal what the WBC is doing.

[MicroBalrog]

Burning a cross at the funeral of a black person that had been hung by the clan.

Carrying a swastika through a town where Holocaust survivors live?

Yes, some opinions are amazingly hurtful and disgusting and so forth. But this is exactly the sort of rationale behind hate speech codes in Canada, just taken to a different level.

There is no right, to my knowledge, to be free from emotional distress. It's tragic, it's disgusting, it's sad but it's true.

[Seenterman]

Skidmark that was an great post in regards to the legality of "fighting words" but I still have to disagree with you. If praising how your son / father / daughter / mother died at their funeral arn't fighting words I don't know what could be considered fighting words.

[Seenterman]

Carrying a swastika through a town where Holocaust survivors live?

No not the same. How about holding a neo Nazi rally at the funeral of a Holocaust survivor?

[Battle Monkey of Zardoz]

So a man can't bury his child with peace and respect, quietly, bothering no one. Interesting.

Please. Any of you that think this is ok, and are having a funeral in the future, let me know. I have an experiment I'd like to try, involving signs and yelling during your funeral.

[MicroBalrog]

So a man can't bury his child with peace and respect, quietly, bothering no one. Interesting.

Please. Any of you that think this is ok, and are having a funeral in the future, let me know. I have an experiment I'd like to try, involving signs and yelling during your funeral.

Feel free to yell as loudly as you can during my funeral. 

[vaskidmark]

Yes, some opinions are amazingly hurtful and disgusting and so forth. But this is exactly the sort of rationale behind hate speech codes in Canada, just taken to a different level.

There is no right, to my knowledge, to be free from emotional distress. It's tragic, it's disgusting, it's sad but it's true.

And there is the crux of the matter.

Canada, without the protection speech has in the USA, is able to legislate what you can say as well as where you can say it.  And that legislation can be, and is, based on the dual notions that 1) folks should not have their feelings hurt and 2) that certain people are deserving or needful of protections above and beyond the protections afforded the rest of the society.  Both notions, to my mind, suggest that the Canadian society is based on class and privilege - a concept anathama to the USA's basic foundational philosophy.

If you can prove, either here or in a court of law, that WBC sets out intentionally to inflict emotional distress upon another, then you have proved battery which is punishable under both criminal and civil law.  Unless you can establish a nexus of conspiracy to breach the law(s) on battery, there is damn-all you can do to restrain WBC until they actually breach the law(s).  Again, we are approaching the Free Speech Zones that were set up blocks away from the recent election campaign activities - places that preserved the right of free speech but in a place and manner which made the speech irrelevant.  (You have the right to speak your mind, but only in a place where nobody else can hear you.)

stay safe.

skidmark

[vaskidmark]

May 21st, 2006, WBC's message incited a mob to form and overrun the police lines keeping WBC separated from counter protesters. WBC had to be rapidly by the police. After they got into the van it was beat upon by the mob resulting in at least one broken window. Other violence has been directed at them in the form of arson and other petty manners such as having drinks thrown at them from passing vehicles and being spit upon, which if my memory serves is legally considered assault. If these different spontaneous violent acts, up to and including a riotous mob, do not count for a breach of the peace, then what does?

You make your point in your closing question -- WBC committed no breach of the peace.  Those who disagreed with them certainly did.  You provide nothing to support a contntion that WBC intended those events/that response.

Chaplinsky called the Marshall a fascist and a racketeer. Focusing on the fascist remark and in the context of 1947 this man was equating the Marshall with a foreign power that we were recently at war with. Today, while WBC is not calling anyone Taliban or Al Qaeda, that they are espousing a position of being grateful for a foreign power/entity killing our soldiers, who are actively engaged in combat, would seem to be in a similar vein. I should note that this also opens up other avenues of prosecution for things such as giving aid and comfort to the enemy. Now in that light, essentially acting as a cheer leader for a current foreign enemy, would you still consider it protected speech?

Actually, the event occurred while we were warring with the fascists, which made the utterance more reprehensible and thus the SCOTUS support for the notion of "fighting words".

No, I do not equate calling someone a fascist while we are at war with fascism with "espousing a position of being grateful for a foreign power/entity killing our soldiers, who are actively engaged in combat."  And besides, you seem to refuse to accept the notion of "fighting words" needing to be uttered as opposed to being displayed on a sign.  There is a difference.

What a wonderfully convoluted era in which we live eh? Here's a thought though. The first amendment, in my layman's understanding, is there to protect the minority opinion, but it does not compel one to listen to it. Do you think it be considered a breach of the 1st amendment to say, have a military commander of the local reserve or guard post send a train of 5-ton cargo trucks to line the street completely obstructing the funeral procession/motorcade from being able to see or hear the protesters? It would be part of rendering honors at a military funeral of course.    They still get to go off with their rants, it's just that nobody is gonna see it.

Actually, I would find it improper for a military commander to take such an action because it would be a governmental action.  If you will recall, I have actively made suggestions of how non-governmental actors might effectively drown out/screen out WBC's speeh and signs. And no, routing a convoy of trucks along the curb has nothing to do with rendering military honors to the deceased.  Had you instead mentioned that the local military commander found it convenient to transport the honor detachment  via one vehicle per military participant, and to park said vehicles on the street rather than in the church parking lot or along the cemetary road I would have had no objection.  You need to start thinking like a bureaucrat.

stay safe.

skidmark

[kgbsquirrel]

Actually, I would find it improper for a military commander to take such an action because it would be a governmental action.  If you will recall, I have actively made suggestions of how non-governmental actors might effectively drown out/screen out WBC's speeh and signs. And no, routing a convoy of trucks along the curb has nothing to do with rendering military honors to the deceased.  Had you instead mentioned that the local military commander found it convenient to transport the honor detachment  via one vehicle per military participant, and to park said vehicles on the street rather than in the church parking lot or along the cemetary road I would have had no objection.  You need to start thinking like a bureaucrat.

stay safe.

skidmark

Ack, evil yellow text, my eyes!! 

As for the "governmental affair" isn't a military funeral already a governmental affair? :)

So, aggravating messages and the protection of minority opinions aside, did you have any thoughts regarding the aid and comfort aspect of publicly praising the actions of a nations enemy during a time of war? I haven't gone and read much on it yet.

[Headless Thompson Gunner]

If you can prove, either here or in a court of law, that WBC sets out intentionally to inflict emotional distress upon another, then you have proved battery which is punishable under both criminal and civil law.  Unless you can establish a nexus of conspiracy to breach the law(s) on battery, there is damn-all you can do to restrain WBC until they actually breach the law(s). 

I'm not familiar with this particular case, but isn't that what the father did prove in order to be awarded the settlement for emotional suffering the WBC inflicted on him?

We're not talking merely offending someone here.  We're talking injuring someone, inflicting a bona fide diagnosable medical injury.

Hell, people are routinely jailed for failing to prevent this sort of injury.  Negligence and whatnot. 

And if it's somehow OK to hurt someone with speech simply because free speech is respected, does that mean that it's ok to hurt someone with a gun because RKBA is protected?

Seems to me your rights to speech, or religion, or a gun, or whatever else, do not grant you license to use those rights to attack and injure others.

[Battle Monkey of Zardoz]

HTG. You are right.

Your right ends when it begins to infringe on my rights.