ACLU Represents Phelps

[JamesDillon]

On a semi-related note, I received a notice a couple of weeks ago of the ACLU's annual membership meeting in Washington, D.C., in October. Apparently a highlight of the event will be a debate between Nadine Strossen and Antonin Scalia. That alone is well worth the price of admission, although I fully expect Scalia to soundly thrash Strossen (though I'll probably be the only member of the audience willing to admit it).

Yup they give themselves a bit of an out with the phrase "somewhat anachronistic". And an evolving constitution approach of course gives them a carte blanche out.

The idea of evolving constitutional standards is hardly unique to the ACLU.

 

[Dave1001]

On a semi-related note, I received a notice a couple of weeks ago of the ACLU's annual membership meeting in Washington, D.C., in October. Apparently a highlight of the event will be a debate between Nadine Strossen and Antonin Scalia. That alone is well worth the price of admission, although I fully expect Scalia to soundly thrash Strossen (though I'll probably be the only member of the audience willing to admit it).

Strossen and Scalia are apparently good friends. She was a guest speaker and gave him a glowing introduction at the NYU Law event where an NYU law student asked Scalia if he "sodomized his wife".

 

[drkitten]

And an evolving constitution approach of course gives them a carte blanche out.

I suspect that they would prefer a phrase like "a way of remaining in touch with reality," something that very few gun proponents seem to have.

 

[Dave1001]

The idea of evolving constitutional standards is hardly unique to the ACLU.

Never claimed it was.

 

[Dave1001]

I suspect that they would prefer a phrase like "a way of remaining in touch with reality," something that very few gun proponents seem to have.

well an evolving constitution standard does give pretty much anyone a carte blanche out even from what they might believe the intent behind an amendment was. And the ACLU there was pretty clear about what they thought the intent behind that part of the 2nd amendment was. This isn't a criticism, just an observation.

 

[JamesDillon]

Strossen and Scalia are apparently good friends.

Really? I had no idea. But apparently he's good friends with Ginsburg, too, so it's not all that surprising.

She was a guest speaker and gave him a glowing introduction at the NYU Law event where an NYU law student asked Scalia if he "sodomized his wife".

I graduated from NYU law a year or two before that happened. I didn't know the guy who said it, but that event (it wasn't just the one guy; there was booing and other protesting that went on when he was there) was a black mark on the school's reputation. Fortunately most NYU law students have a better-developed sense of respect than that, but it only takes a few to give us all a bad name.

 

[Dave1001]

Really? I had no idea. But apparently he's good friends with Ginsburg, too, so it's not all that surprising.


I graduated from NYU law a year or two before that happened. I didn't know the guy who said it, but that event (it wasn't just the one guy; there was booing and other protesting that went on when he was there) was a black mark on the school's reputation. Fortunately most NYU law students have a better-developed sense of respect than that, but it only takes a few to give us all a bad name.

Well, hopefully this guy will do something to help improve your school's name in the press:

http://www.latimes.com/news/printedition/asection/la-na-observer23jul23,1,3240392.story?coll=la-news-a_section

 

[drkitten]

well an evolving constitution standard does give pretty much anyone a carte blanche out even from what they might believe the intent behind an amendment was.

That's partly because the idea of being wedded to the text of an amendment, or even to the intention behind it, is extremely stupid over the long run.

The law books are full of obviously-anachronistic laws, ranging from demands that all able-bodied Englishmen practice archery for an hour every Sunday to mandatory hitching posts so that people can tie their horses in front of the county court house. Even the famous Bavarian beer "purity" law has its problems -- created legitimately to prevent the use of questionable and in some cases poisonous additives, it also prevents brewing some truly stellar beers that demand other ingredients. (And was badly written to boot, because it excluded yeast as one of the ingredients.) Most of the time these laws are simply allowed to die quietly because it is too much time and trouble to actively remove them from the books.

Just as the situation can change with regard to the wording of the law, so can the situation change with regard to the intention -- a praiseworthy intention long ago might turn out to be actively harmful now. For example, suppose that someone had written a law in the 1920s about the "health benefits" of radium and as a result, demanded that the local municipality should artificially add radium salts to the water. In retrospect, the mere intention behind that law is stupid when seen through today's eyes. Simiarly, the mere intention of securing the right of states to resist tyranny of the federal government could easily be seen as a misguided one given the devastating nature of modern civil war and the changed nature of the political landscape.

 

[Number Six]

The thing is, if they only protected the civil liberties of those groups they personally agreed with, they wouldn't really be protecting civil liberties. They would just be protecting those groups they agreed with.

Precisely the problem with modern political organizations (read: Republicans and Democrats), imho, is that they have put practicality before idealism.

I don't have a problem with them protecting the civil liberties of unpopular groups. I have a problem with them declining to do PR and letting their image be controlled by others. If they have a valid position, and they probably do, all they have to do is explain it. I've seen Bill O'Reilly 50 times make them look ridiculous in a segment and then end it with "As always we invited the ACLU to appear to defend itself but they declined." The 1 unit of good they're doing with their actual work is outweighed by 10 units of bad done as a result of the public thinking they're crazed anti-religious, anti-fairness maniacs. The public is ultimately what produces money to support causes or judges that interpret the law, etc. Pandering entirely to the public is bad but it shouldn't be an either/or game, where one choice is to pander entirely and the other is to let public opinion of you be determined by other people and groups.

 

[JamesDillon]

I don't have a problem with them protecting the civil liberties of unpopular groups. I have a problem with them declining to do PR and letting their image be controlled by others. If they have a valid position, and they probably do, all they have to do is explain it. I've seen Bill O'Reilly 50 times make them look ridiculous in a segment and then end it with "As always we invited the ACLU to appear to defend itself but they declined." The 1 unit of good they're doing with their actual work is outweighed by 10 units of bad done as a result of the public thinking they're crazed anti-religious, anti-fairness maniacs. The public is ultimately what produces money to support causes or judges that interpret the law, etc. Pandering entirely to the public is bad but it shouldn't be an either/or game, where one choice is to pander entirely and the other is to let public opinion of you be determined by other people and groups.

Sounds like you're watching way too much Bill O'Reilly if you've seen him do anything 50 times.

I think the ACLU does a fair amount of PR work; the problem is that the Fox News junkies who are determined to view it as a "crazed anti-religious, anti-fairness" organization are not going to be persuaded by what the ACLU has to say. The ACLU could reasonably conclude that defending its position on O'Reilly's show would be a waste of time and resources, and it's probably right about that.

Edit: And, of course, to be fair, the ACLU does have what can fairly be regarded as a pretty left-wing agenda, so it's not that critics like O'Reilly are wrong about that. It's just that they're wrong in thinking that that's a bad thing.

 

[Number Six]

O'Reilly's show is one of the most watched in the country and therefore they could talk to a huge audience. All they have to do is send a an informed, semi-articulate representative on there to prevent O'Reilly from characterising them any way he wants to. People smirking at and writing off media like O'Reilly is one of the reasons those kinds of media have gained so much power in the first place.

Not only does the ACLU not get its message out by not appearing on O'Reilly, they also come off as arrogant for being too good to go on a TV show is popular. It's exactly that kind of "they're elitists that think they're better than the masses" stuff that O'Reilly and his ilk exploit.

 

[Dave1001]

I don't have a problem with them protecting the civil liberties of unpopular groups. I have a problem with them declining to do PR and letting their image be controlled by others. If they have a valid position, and they probably do, all they have to do is explain it. I've seen Bill O'Reilly 50 times make them look ridiculous in a segment and then end it with "As always we invited the ACLU to appear to defend itself but they declined." The 1 unit of good they're doing with their actual work is outweighed by 10 units of bad done as a result of the public thinking they're crazed anti-religious, anti-fairness maniacs. The public is ultimately what produces money to support causes or judges that interpret the law, etc. Pandering entirely to the public is bad but it shouldn't be an either/or game, where one choice is to pander entirely and the other is to let public opinion of you be determined by other people and groups.

Maybe they want the majority of the public to disagree with them, but for their positions to still win in the courts. It could be a desire to manufacture a type of hierarchy with themselves at the top of it and most of the rest of the population at the bottom. Sort of a gentrification of the moral high ground.

 

[pgwenthold]

That's true. I suppose it depends on how the court would interpret "picketing." However, a general principle of statutory interpretation is that a court shall construe the statute so as to avoid constitutional difficulties wherever possible, so I don't think this is a ground for overturning the statute; the court should just rule that "picketing" means any kind of demonstration.

Possibly, but the sticking point might be the word "other", where it says "picketing or OTHER protest activities" means that the law is including picketing as a protest activity. Now, if picketing is not necessarily a protest activity, then the law would be overturned for being vague (essentially redefining the legal definition of picketing). It could be corrected by taking out the "other," and in that case, it would include all forms of picketing, supportive and protestant.

OTOH, I don't know if that would still hold. Would a supportive candlelight vigil demonstration be considered "picketing"? But a candlelight protest would still be illegal. That's not acceptable.

I think the "constitutional scholar" opinion that it is "vague" probably is in this light. What constitutes "picketing"? A supporter could argue that they aren't "picketing" and are doing some "other form of support," while a protester who is not picketing does not have that option.

 

[JamesDillon]

Those are excellent points. I'm leaning more in the direction of doubting the constitutionality of this statute now. I'd like to see the parties' briefs on this when they're filed.

Still, I think the constitutional defect could easily be remedied by the legislature, and that a statute achieving the primary goal of prohibiting political demonstrations at a funeral that does not violate the First Amendment could be crafted.

 

[pgwenthold]

Still, I think the constitutional defect could easily be remedied by the legislature, and that a statute achieving the primary goal of prohibiting political demonstrations at a funeral that does not violate the First Amendment could be crafted.

Oh I agree, but it is going to be a little more complex, and it is going to necessarily have to prevent people from supportive demonstrations. If people can gather in front of the church before the funeral and sing songs in memorial, then they have to be allowed to gather and chant protestant epitaphs. So if you want to get rid of the latter, you are going to lose the former. The law can't make a distinction based on the content.

(btw, this is all about activities on public land, so activities on the church land don't apply)

 

[JamesDillon]

Oh I agree, but it is going to be a little more complex, and it is going to necessarily have to prevent people from supportive demonstrations. If people can gather in front of the church before the funeral and sing songs in memorial, then they have to be allowed to gather and chant protestant epitaphs. So if you want to get rid of the latter, you are going to lose the former. The law can't make a distinction based on the content.

True, but you could distinguish between performances that are part of the funeral and demonstrations that are not. For example, if the organizers of the funeral themselves want to have a vigil or memorial song, I think that could and should be distinguished from demonstrations by other groups. So all it would really require would be a little bit of coordination between the funeral organizers and sympathetic groups in order to get around the statutory ban.

 

[Katana]

Does anyone really have a misunderstanding of what picketing is? Come on. I hate it when debates are reduced to gnashing over what the meaning of a commonly-used, fairly-understood word means. Give me a break.

Definition of picketing according to www.legal-definition.freedictionary.com:
standing or parading near a business or government office usually with signs of protest or claims in labor disputes or public policy controversies (peace marches to pro- or anti-abortion advocates). Picketing is constitutionally guaranteed as free speech, but in some cases it may be limited by court order to prevent physical combat, blocking of entrances or threats to the public safety.


Definition according to Wikepedia:
"Picketing is a form of non-violent resistance in which people congregate outside a place of work or location where an event is taking place and attempt to dissuade others from going in ("crossing the picket line"). It can have a number of aims, but is generally to put pressure on the party targeted to meet particular demands. This pressure is achieved by harming the business through loss of custom and negative publicity, or by discouraging or preventing workers from entering the site and thereby preventing the business from operating normally.

Picketing is a common tactic used by trade unions during strikes, who will try to prevent dissident members of the union, members of other unions and ununionised workers from working. Those who cross the picket line and work despite the strike are known as scabs.

A mass picket is an attempt to bring as many people as possible to a picket line, in order to demonstrate support for the cause. It is a particularly useful tactic when only one workplace is being picketed, or for a symbolically or practically important workplace. Due to the numbers involved, a mass picket may turn in to a blockade.

Picketing is also used by pressure groups across the political spectrum."

A candle light vigil doesn't sound like picketing to me. Is it really that vague?

 

[pgwenthold]

True, but you could distinguish between performances that are part of the funeral and demonstrations that are not. For example, if the organizers of the funeral themselves want to have a vigil or memorial song, I think that could and should be distinguished from demonstrations by other groups.

On what basis? Religion? Something else? Again, it seems to be based on the view espoused, and that is not good.

So all it would really require would be a little bit of coordination between the funeral organizers and sympathetic groups in order to get around the statutory ban.

If organizers of the funeral want to have a vigil, they should do it on church property.

You would certainly allow thoroughfare usage to access the church and/or cemetary, of course, but if you are going to allow vigils, then you have to allow all kinds. Funeral participants do not get more rights than non-participants.

But this is what I meant by my comment that it will get more complex. Are you going to start requiring permits for areas in front of churches? You could in principle do that, but that's complicated.

Note that the easy solution to the problem is just for the church/cemetary to have a policy that allows supportive demonstrations to occur on their property. The government doesn't need to waste it's time worrying about making the law to let the supporters get by. That's what the private sector is for. If the government forbids anyone from using the public land, then the organization can control the private land, and no one unwanted comes anywhere near.

 

[Dave1001]

Does anyone really have a misunderstanding of what picketing is? Come on. I hate it when debates are reduced to gnashing over what the meaning of a commonly-used, fairly-understood word means. Give me a break.



A candle light vigil doesn't sound like picketing to me. Is it really that vague?

I think your example shows that there is reasonable difference on opinion of what picketing is. Cause I honestly believe (not in a snarky, just-to-contradict-you way) that candle light vigils do fit pretty clearly into the picketing category. Same with marches, sit-ins, pray-ins, etc. that don't necessarilly use signs with political messages on them.

 

[Rob Lister]

This is sad. A private funeral is unlike any other event. The ACLU may be able to do this, but they, along with phelps and his gang, should be horsewhipped for attempting it.

Imagine it was your son...no matter the circumstances.