Protecting the despicable

I have been in an emotions v. reason struggle this past week since the Westboro Baptist protesters case went to the Supreme Court. When the decision comes down in a few months, it will be a landmark decision pitting free speech against privacy.

Very few of us are not affected by the picture of fundamentalist anti-gay protesters standing near the graveside service of a dead soldier holding signs which say, “The only good soldier is a dead soldier.” There is no place or event more sacrosanct than a graveside service. To most of us the protesters are despicable.

The American Civil Liberties Union (ACLU) defended the right of American Nazis to march in Skokie, Illinois. Despicable. I renewed my ACLU membership.

The ACLU came down on the side of the North American Man-Boy Love Association’s (NAMBLA) Web site on the grounds that “an idea cannot be charged with murder.” Despicable. I renewed my ACLU membership.

In July 2006, the ACLU sued on behalf of the Westboro Baptist Church members, whose anti-gay protests were plaguing troop funerals. The reason behind these protests, according to the church’s pastor, is: God is punishing homosexuality by allowing our soldiers to be killed. There is no “reason” involved. Despicable. I renewed my ACLU membership.

It is the despicable that the First Amendment protects. Despicable being defined as what's patently offensive to us. If we think the First Amendment should protect only ideas we embrace, it has no purpose.

My legal hero Clarence Darrow argued that the free speech of every person or group in this country – “no matter how despicable” – must be protected.

In one of my favorite movies, “The American President,” Michael Douglas as President Andrew Shepherd addresses a rival candidate at a press conference:

“For the record: yes, I am a card-carrying member of the ACLU. But the more important question is why aren't you, Bob? Now this is an organization whose sole purpose is to defend the Bill of Rights, so it naturally begs the question: Why would a senator, his party's most powerful spokesman and a candidate for president, choose to reject upholding the Constitution? … America isn't easy. America is advanced citizenship. You gotta want it bad, 'cause it's gonna put up a fight. It's gonna say ‘You want free speech? Let's see you acknowledge a man whose words make your blood boil, who's standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours. You want to claim this land as the land of the free? Then the symbol of your country can't just be a flag; the symbol also has to be one of its citizens exercising his right to burn that flag in protest. Show me that, defend that, celebrate that in your classrooms. Then, you can stand up and sing about the land of the free.’”

In his Sept. 8 post, “Koran cook-out,” Infidel753 wrote:

"Make no mistake: the moment we compromise on freedom of expression because the said expression shocks and outrages somebody - especially if it's because the shocked and outraged party is threatening violence - freedom of expression vanishes, and we are under the dominion of the thug and the bully."

We’ve all heard the declaration written by Evelyn Beatrice Hall, under the pseudonym of Stephen G Tallentyre in "The Friends of Voltaire" (1906): “I may not agree with what you say, but I will defend to the death your right to say it.” Not much of that going around these days.

Just remember that half the people in this country find what you have to say despicable. Never underestimate the power of right-wing fundamentalists. They managed to give this country the 18th Amendment to its Constitution. And, they are hellbent to shut you up.

Setting aside my emotions and clearing my head, I find that reason falls on the side of free speech. I am certain SCOTUS will continue to protect the First Amendment, and that’s a good thing – it’s called democracy.


“ACLU’s Statement on Defending Free Speech of Unpopular Organizations,” 31 August 2000: LINK

“ACLU Sues for Anti-Gay Group That Pickets at Troops' Burials,” Garance Burke, Associated Press, July 23, 2006. LINK

When the Nazis Came to Skokie: Freedom for Speech We Hate, Philippa Strum, University Press of Kansas, 2000, 184 pp. (Honorable Mention, American Bar Association’s 2000 Silver Gavel Award recognizing outstanding efforts to foster public understanding of the law) LINK


airth10 said...

Probably the Court will rule in favor of the protesters but will say that such freedom of speech can only be made from a specific distance, like in the protesting of abortions.

Infidel753 said...

Good post.

It shouldn't be difficult to deal with the WBC without compromising the First Amendment. Most funerals, for example, presumably take place on land which is owned by someone, and the property owner has rights over how that property can be used. The streets in Skokie were publicly owned and access to them could not legitimately be restricted. If the Nazis had wanted to march into people's living rooms to rant at them, that would have been an entirely different matter.

This is why, in a humbler context, I freely use comment moderation on my blog. As I've told people who object to this, the First Amendment lets you put a bumper sticker for your favorite cause on your car. It doesn't let you put that same bumper sticker on my car, not without my permission. Get your own blog.

So long as they are not clearly transgressing on the rights of others, the WBC is entitled to voice its disgusting, bigoted views. The proper response to evil speech is contrary speech, not censorship.

B.J. said...

Airth10: You are probably right. Everywhere George W. Bush spoke during his presidency, protesters of his policies were herded into “free speech zones” a certain distance from the rally.

Infidel753: Good point about private property. Aren’t there military cemeteries which are public property? My late brother-in-law is buried in one. I do not know if the WBC is protesting in such cemeteries, will have to research that. I do not choose to use comment moderation, because I don’t like to go back to a blog to see if my comment cleared. I would not hesitate, though, to delete any comment that levels a personal attack on a fellow commenter.

Here is the question before the Supreme Court: Whether a Missouri law banning such picketing infringes on religious freedom and free speech.

For the record, after all was said and done, the Nazis never marched in Skokie.


B.J. said...

OK, I’ve gotten this far: The United States operates 128 military cemeteries in 39 states. Will attempt to find out if any WBC protests were held in military cemeteries, which are public property. But that’s not the question before the Court. The Missouri law the Court has been asked to strike down includes all cemeteries in that state. BJ

B.J. said...

Here is the Missouri Law the Supreme Court will consider. Note the use of the word “any” – emphasis mine – which I interpret to include military cemeteries on public property. A federal judge overturned the law in August 2010 and the Supreme Court issued an injunction against it until it could be taken up.


Pre-filed December 1, 2005, and ordered printed.
TERRY L. SPIELER, Secretary.

To amend chapter 578, RSMo, by adding thereto one new section relating to protest activities near funeral services, with penalty provisions.

Be it enacted by the General Assembly of the State of Missouri, as follows:

Section A. Chapter 578, RSMo, is amended by adding thereto one new section, to be known as section 578.501, to read as follows:

578.501. 1. This section shall be known as "Spc. Edward Lee
Myers' Law".

2. It shall be unlawful for any person to engage in picketing or other protest activities in front of or about ANY church, cemetery, or funeral establishment, as defined by section 333.011, RSMo, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral. Each day on which a violation occurs shall constitute a separate offense. Violation of this section is
a class B misdemeanor, unless committed by a person who has previously pled guilty to or been found guilty of a violation of this section, in which case the violation is a class A misdemeanor.

3. For the purposes of this section, "funeral" means the ceremonies, processions and memorial services held in connection with the burial or cremation of the dead.



Tiny said...

Well, BJ, you answered Tiny's question about people's right to peaceful assembly, which she believes covers funerals.

She also knows the ACLU, of which she is a member, often defends cases she finds despicable, the Westboro Baptist bunch and others of their ilk. But without that none of us would have the right to free speech.

Sometimes we just have to grit our teeth and endure things that irk us the most, like a great deal we hear from politicians. Not to mention the SOTUS dubbing corporations as people! That doesn't mean we give up pushing ahead for our rights also.

Excellent and informative post. Keep up your great work.

B.J. said...

Tiny: Yep, it’s pretty tough to want free speech for a so-called Christina group which says dead soldiers and trapped miners are God’s punishment for homosexuality. One sign they held up read, “AIDS is the cure for homosexuality.” Why wouldn’t that be labeled “hate speech?”

It is purely coincidental that the two items under “fyi” in my sidebar ended up flanking this post. Nobel Peace Prize winner Liu Xiaobo is serving 11 years in a Chinese prison for speaking out for freedom. I put up the headline yesterday that his wife is now under house arrest. I haven’t had a chance to check for further developments on her today. Such is life without freedom of speech.


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tnlib said...

BJ: Sorry I haven't commented but am really up against the wall at the moment and getting sick on top of it.

This is a fantastically fascinating post. But as much as I despise this very un-christian christian, I believe so strongly in freedom of speech and think that it would be the first step in eroding it should the court not rule in the defendant's favor.

Of course, groups like this are always the first to try to deny the same freedom to those with whom they don't agree.

Frodo, no Wendell Holmes he said...

Frodo, respectfully, disagrees.
There is truth and justice on the side of those who cast invective. That is a fundamental right, and is exactly the point argued so brilliantly by Merry, of the Fellowship. However, the demonstration becomes desecration when there is no opportunity to respond in kind.
The act, argues Frodo, is not against the mourners, for they retain the capacity to respond in kind. It is the Fallen, no longer animate, and no longer able to respond in kind that require protection. A flag, or a tombstone, which are treasured and public symbols, are protected against what is nothing more than vandalism. So, to Frodo, are the remains of the Fallen, which are desecrated by act and by demonstration.
As Chief Justice Frodo, he would fry the bastards. He'd love for them to appeal.

B.J. said...

Remember me mentioning Clarence Darrow? In cases big and small he defended the worker, the poor and the seemingly defenseless. In several major cases he defended workers’ union member – fighting for fairer wages, working conditions and hours. They were falsely accused of murder. They were called “anarchists,” “socialists,” “communists.” They were, to the general public, despicable. They were beat back. Their blood was shed. In the end, better working conditions resulted.

This is not to suggest that these funeral protesters in any way equate with the struggles of workers, merely to state the unpopularity. We of sound mind, Frodo, understand the verbal desecration when the Westboro Baptists say that fallen soldiers and traped miners are God’s punishment for homosexuality. In the end the point of law rests on the Missouri law meant to quiet them.

I trust I made my point in my original post. I do hope everyone will read the brief ““ACLU’s Statement on Defending Free Speech of Unpopular Organizations.” (Link provided at the end of the post.)

As for the Fallen, they mercifully cannot hear.

We will wait and see how the High Court rules on this one, but I suspect free speech will prevail.


Infidel753 said...

Frodo's argument seems to say that freedom of expression does not extend to attacks on those who are dead, which suggests immediate problems. Should Nixon, FDR, Reagan, Marx, Goldwater, etc. be immune from critical attack just because they are dead? Freedom of expression could hardly survive such a restriction.

Forbidding attacks on "treasured and public symbols" is an even more obvious problem. Burning a flag or desecrating a religious symbol are textbook cases of free expression. There's no more clear-cut case than these of the need for First Amendment protections.

If you burn a flag which belongs to someone else, you've vandalized that person's property and should be prosecuted accordingly -- not for the symbolism of flag-burning. The same goes for damaging a tombstone which presumably belongs either to the family or to the graveyard. Burning a flag which you yourself own, to make a point, must be protected freedom of expression, or else there is no freedom of expression.

Frodo, avoiding Witchitaw, said...

Frodo never (well, almost never) responds to responses. Generally, the dialogue is a reflection of either poor presentation or uncomprehending analysis. This proves true, once more.

Frodo's point is that if a crime can be committed against an inanimate object (a tombstone or a publicly-owned flag) and we call it vandalism, then why wouldn't such an act extend to other inanimate objects, like a body? Frodo would charge the hecklers with vandalism, and then seek the either the death penalty or to restrict them within the geographical borders of Kansas for the rest of their lives. Frankly, Frodo, if so convicted, would choose the former for himself.

Kansas, Yech!

Mary Lee said...

Every time I see this nutty group out there--and making their children a part of their hatred-- I wonder how "Christians" can feel their freedoms have been curtailed. Could their BE a more hate-filled bunch?!