ACLU Represents Phelps

[pgwenthold]

I think your example shows that there is reasonable difference on opinion of what picketing is.

And this is particularly in light of JamesDillon's comments about how the court is supposed to interpret the law without a constitutional violation if at all possible.

I know how picket is commonly understood (and no, it doesn't include supportive candlelight vigils). But that isn't the issue. The question is whether a reasonable argument could be made that it does include things like vigils. Dave thinks there is. OTOH, if someone were arrested for having a supportive candlelight vigil because of this law, you'd hear Bill OReilly screaming bloody murder, because there is an argument (called the dictionary) that a candlelight vigil is not picketing. Of course, if that is the definition, then the law is certainly unconstitutional. And if a candlelight vigil _is_ picketing, then it is prohibited by this statute.

 

[pgwenthold]

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.

Better yet, imagine the irony of prohibiting protestors on public land at a funeral for someone who died defending the american way of life...

 

[Katana]

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.

I appreciate the disclaimer as tone can be a difficult thing to convey with text alone.

I think that marches, sit-ins, and pray-ins are typically tied to a movement or an opinion in an effort to sway others (or at least to convey one's opinion to others). To me, it sounded like those characteristics were integral to the definition of picketing. Silent prayer without an obvious message (which is kinda how I look at candle light vigils) doesn't seem like the same thing to moi. Thoughts to the contrary are welcome and, no doubt, forthcoming.

 

[Rob Lister]

Better yet, imagine the irony of prohibiting protestors on public land at a funeral for someone who died defending the american way of life...

All the more reason to horsewhip the lot of them, publically. A funeral may be held on public land but it is a very, very private affair. 'Tis a sad state of affairs that one would attempt to protest it, no matter the person. 'Tis a sadder state that the state would/might protect it.

 

[Katana]

All the more reason to horsewhip the lot of them, publically. A funeral may be held on public land but it is a very, very private affair. 'Tis a sad state of affairs that one would attempt to protest it, no matter the person. 'Tis a sadder state that the state would/might protect it.

You and I would agree on this one. It's disgusting and pathetic.

 

[JamesDillon]

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

Not at all-- simply on the basis that these events would be part of the funeral itself, and therefore would not constitute a separate event from it. Therefore there's no "picketing" or "protesting" in these cases, despite the fact that the act might be prohibited if it were undertaken by an independent group.

I don't see a problem with that. As Rob points out, funerals are private events even when they take place on public property, and they frequently involve prayer or song. Undertaking such activities as part of a memorial service is conceptually different from some group unrelated to the mourners, whether sympathetic or not, doing the same thing.

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.

No, I will not imagine that it was my son. The purpose of a charter of civil liberties, enforced and interpreted by a neutral and presumably dispassionate judiciary, is precisely that it removes these kinds of personal prejudices from the law. Of course a parent would be offended by a protest at his or her child's funeral, and would demand that such activities be prohibited. But the place of the law is not to favor the passions of one group over another.

That said, as I've been saying, I think that Phelps's activities could probably be constitutionally banned with a properly drawn statute. But the idea that the ACLU is acting inappropriately by challenging the Missouri statute, whether or not it is ultimately upheld, is simply absurd and contrary to the most fundamental principles of constutional law.

 

[JamesDillon]

I think that marches, sit-ins, and pray-ins are typically tied to a movement or an opinion in an effort to sway others (or at least to convey one's opinion to others). To me, it sounded like those characteristics were integral to the definition of picketing. Silent prayer without an obvious message (which is kinda how I look at candle light vigils) doesn't seem like the same thing to moi. Thoughts to the contrary are welcome and, no doubt, forthcoming.

Even if it were the case that prayer vigils, etc., cannot be in principle distinguished from Phelps's protests in a constitutionally appropriate manner (i.e., one that does not discriminate on the basis of content), is it such a problem to demand that such activities not take place within a certain distance of the funeral? I would think that groups sympathetic to the mourners would respect the need for a little personal space during the services.

 

[Dave1001]

Even if it were the case that prayer vigils, etc., cannot be in principle distinguished from Phelps's protests in a constitutionally appropriate manner (i.e., one that does not discriminate on the basis of content), is it such a problem to demand that such activities not take place within a certain distance of the funeral? I would think that groups sympathetic to the mourners would respect the need for a little personal space during the services.

I think that's reasonable not just for funerals but for all events that are picketed/protested (to require a reasonable and respectful distance to prevent disruption of the other group's activity). Is it the reasonable distance question that's being litigated, or the ability to picket a funeral period?

 

[JamesDillon]

I think that's reasonable not just for funerals but for all events that are picketed/protested (to require a reasonable and respectful distance to prevent disruption of the other group's activity). Is it the reasonable distance question that's being litigated, or the ability to picket a funeral period?

In order for it to be a reasonable time/place/manner restriction, you'd have to limit the prohibition to a reasonable proximity of the event itself. You couldn't constitutionally prohibit, say, an anti-military demonstration in a public park on the other side of town while a soldier's funeral was going on. So the issues are connected. Which is perhaps another unconstitutionally vague aspect of the Missouri statute-- it doesn't specify how far the zone of prohibition extends.

 

[Dave1001]

In order for it to be a reasonable time/place/manner restriction, you'd have to limit the prohibition to a reasonable proximity of the event itself. You couldn't constitutionally prohibit, say, an anti-military demonstration in a public park on the other side of town while a soldier's funeral was going on. So the issues are connected. Which is perhaps another unconstitutionally vague aspect of the Missouri statute-- it doesn't specify how far the zone of prohibition extends.

For something like a funeral I think it should be a little farther away than for most events. Out of sight and hearing of folks attending the funeral, out of site and hearing for the most convenient path of travel to the funeral for folks attending the funeral. That would be about it.

 

[69dodge]

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.

?!

If it doesn't mean what those who wrote it intended it to mean, what does it mean, then?

(Before you say, "it means whatever a court says it means", what I'm asking is not "how should you or I decide what it means?", but rather "how should a court decide what it means?")

 

[Katana]

For something like a funeral I think it should be a little farther away than for most events. Out of sight and hearing of folks attending the funeral, out of site and hearing for the most convenient path of travel to the funeral for folks attending the funeral. That would be about it.

Sounds good to me, but didn't something like this get shot down when abortion clinics tried to move protesters some distance away?

 

[Meffy]

Why do you support the ACLU losing this case?

That discussion's already been had. You may search the JREF forums for the answer. I'm uninterested in further debate of that topic and feel no need to justify my position to anyone, so this will be my last post to this thread.

 

[Morrigan]

So, show me just ONCE where the ACLU defended the civil liberties gauranteed by the Second Ammendment.

I thought the ACLU focused primarily on the first amendment, and whichever amendment guaranteed the right to privacy? I could be wrong... but I thought they said somewhere that other organisations (NRA) already focus on the second amendment, so they prefer to focus on others.

In any case, even if they haven't said it, it's fallacious to assume they don't defend the second amendment in principle because few cases they took are related to it.

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.

Yes, because being a bunch of pandernig populists would be so much better... the ACLU aren't diplomats, I fail to see why they need the PR you say they do. They simply do the job they have to do, and if a bunch of ignorant peasants whine about it, it's really their own damn problem. I don't see elitism as a bad thing, not in this case at least.

 

[Tricky]

As much as I find the actions of Phelps and his goons the most nauseatingly disgusting act conceivable, I still have to go with the ACLU on this one. We don't have a Constitutional right not to be disgusted. It is the price we pay for free speech.

Some time ago, I was discussing flag-burning with a friend of mine who was a Vietnam vet, and not surprisingly, he was fanatically in favor of a flag-burning amendment. I told him that while flag-burning was disgusting and I had no use for anyone who would do it, that it physically harmed no one and should be considered free speech. He replied, "It physically harms me, because it makes me sick to my stomach."
"That's not them harming you," I replied, "That's you responding to what they do."

So to avoid hypocrisy, I have to say that there should be no restriction on behavior which is merely offensive to others, but which does not physically harm them.

And while I am sorry for the family, I'm a little glad that Phelps gets this kind of publicity. It lets people know just how disgusting the religious right can be.

 

[Katana]

So to avoid hypocrisy, I have to say that there should be no restriction on behavior which is merely offensive to others, but which does not physically harm them.

And while I am sorry for the family, I'm a little glad that Phelps gets this kind of publicity. It lets people know just how disgusting the religious right can be.

There are slander laws, and that doesn't cause physical harm. I'm not sure that whether there is a physical nature to perceived harm should be the only barometer. I do understand your argument, though.

As for the religious right, I'm not sure even they would want to be identified with this group.

 

[Tricky]

There are slander laws, and that doesn't cause physical harm. I'm not sure that whether there is a physical nature to perceived harm should be the only barometer. I do understand your argument, though.

I agree that physical harm is not the only measure by which we determine crime. After all, assault can be nothing more than a threat. But we have statutes to deal with threats, lies, etc. As long as the protesters are not violating any other statutes, then I don't think the law should be interpreted to prohibit behavior that I find politically (morally?) offensive.

But if one of them so much as shakes a fist at the mourners, clap him in irons.

As for the religious right, I'm not sure even they would want to be identified with this group.

I'm sure they wouldn't, but they have no choice. Phelps is invoking God and he is far far right. If it walks like duck...

 

[brodski]

There are slander laws, and that doesn't cause physical harm. I'm not sure that whether there is a physical nature to perceived harm should be the only barometer. I do understand your argument, though.

to win a defimation case do you not have to show material harm?

 

[drkitten]

If it doesn't mean what those who wrote it intended it to mean, what does it mean, then?

Possibly nothing, if "what those who wrote it intended it to mean" is self-evidently stupid and contrary to the public interest in our more enlightened times. See the radium salts example above.

"Strict constructionism" is the belief that a bunch of rich 18th-century white males knew more about our current societies practices, problems, and potential solutions than we do. This belief is therefore obviously misguided. When we're talking about any other area than constitutional law, it's well recognized that laws can be obsolete, anachronistic, and ill-advised. But for some reason this doesn't apply to the U.S. Constitution?

 

[drkitten]

to win a defimation case do you not have to show material harm?

Material harm is not the same as physical harm. "Material" in this context simply means "significant." For example, if I were to slander you to your fiancee and she were to break off the engagement, you could sue me for the emotional distress I have inflicted upon you.