Setting up First Amendment Zones — away from troop funerals

January 28, 2006

I mentioned a couple of weeks ago that Fred Phelps and his truly deranged, Kansas-based Westboro Baptist Church have taken to protesting at the funerals for troops killed in Iraq, literally celebrating their deaths. Phelps and his deranged followers carry signs that read “Thank God for dead soldiers” and “Thank God for IEDs,” because they believe soldiers’ casualties are God’s revenge on a country that is insufficiently hateful towards homosexuality.

Because many of Phelps’ recent efforts have been in Wisconsin, state lawmakers are trying to explore options that can prevent protests at funerals. This week, legislation was unveiled.

Protesters who gather outside a funeral could face jail time and fines under a bill a bipartisan group of state lawmakers proposed yesterday.

The measure is designed to stop members of a Kansas-based church who have protested outside the funerals and visitations of about 80 soldiers nationwide, including three in Wisconsin, the legislators said. The church, led by the Rev. Fred Phelps, believes God is killing American soldiers because the United States accepts homosexuality.

The bill would prohibit protests within 500 feet of a funeral, wake, internment or memorial service for an hour before and after the ceremony.

Protesters who violate the bill’s conditions would face a misdemeanor punishable by up to nine months in jail and a $10,000 fine. A second violation would be a felony offense, punishable by up to 3½ years in prison and $10,000 in fines.

Granted, Phelps is beneath contempt, and “preaches” the most vile hate I can even imagine. Having said that, from a First Amendment perspective, this is awfully tricky.

I’m definitely a defend-you’re-right-to-say-it type, but I wonder what a judge would say about these kinds of restrictions. On the one hand, there are already laws on the books that prohibit disturbing the peace, disorderly conduct, and speech that could incite violence. On the other hand, the law clearly protects Phelps’ right to peaceably assemble.

The Wisconsin measure has bi-partisan support and was written in conjunction with lawyers in the governor’s office. Assuming it becomes state, anyone care to guess how a court would rule on its constitutionality?

I think it’s pretty clearly unconstitutional on First Amendment grounds. Phelps’ antics are pretty well known in eastern Kansas/western Missouri. He and his brood are deliberately obnoxious and offensive, but they always stop short of being threatening or violent. Short of a public safety threat, I don’t see how a court could determine this was a reasonable limit to free speech rights.

  • Agreed totally. Especially since the sheriff of one county where Phelps and friends paid a visit thinks that the disorderly conduct laws are more than adequate to shut these clowns up.

    However, just in case they aren’t, maybe Wisconsin ought to amend that proposed law to specifically prohibit speech at ANY protest that incites violence–unless that’s too broad as well.

  • Seems that our peeResident has already born out the law on this issue; seems to me that putting limiting protesting to certain areas when his highness is around is much the same as limiting this scum preacher to certain constraints for his uglieness.
    Guess that the supremes would have little or no problem with this despite it’s soreness to the constitution.

  • As a die-hard Liberal (with a capital in that ‘L’), and a former member of the Army, I find Phelps’ actions contrary to everything this country stands for. If we are reading up on Constitutionality, then we need to look at the Founding Fathers’ intent. And if a single one of them would have supported letting him have his ‘speech’ over merely stringing him up from the nearest tree branch, I would be highly shocked.

    Democrats wonder why we can’t win elections? At least part of it is this damn equivocating about issues like this, which are simply beyond the pale. “Granted, Phelps is beneath contempt, and “preaches” the most vile hate I can even imagine. Having said that, from a First Amendment perspective, this is awfully tricky.” It’s not tricky. There is no justification to protest the tragic deaths of those who have honorably served their country. Anyone who would justify that should get the f&^k out of the country which that soldier died for.

  • Castor Troy

    I wholeheartedly agree. There is no law, right or excuse to allow anyone to add to the grief of a family who lost a family member while serving their country. Common sense, respect and the rights of the family take precedent.

  • The only equivalent that I can think of off hand is the prohibition against protesters immediately in front of a family planning clinic. What have the courts said about that?

    Aside from that, though, I agree with Castor Troy. This is not an issue to be wishy washy about. It’s one thing to uphold these people’s rights to assemble peacefully and protest. It’s something else entirely, and against what every other person in this country (except maybe Pat Robertson) would believe is reasonable.

    Let the families bury their loved ones in peace.

    BTW, my understanding about this Phelps group is that they are primarily funded by suing locales and people for 1st ammendment violations against their hate-spewing speech. The vast majority of the family (which is the bulk of the protesters at any given event) are trained in the law.

    They are so ugly for a purpose. They want someone to go off the deep end.

    Bastards.

  • Wisconsin is not the first to impose such laws in reaction to Phelps:
    *In fall 2005, legislators in Oklahoma introduced the Oklahoma Funeral Picketing Act, which would prohibit such protests within one hour prior to and two hours after funerals.
    * Missouri lawmakers in December 2005 introduced the so-called “Spc. Edward Lee Myers Law,” which would bar protests at funerals from one hour before to one hour after the procession.
    * In January 2006, an Indiana legislator introduced a measure that would amend the state’s disorderly conduct statute to provide that picketing within 500 feet of a cemetery or burial constitutes disorderly conduct and a Class D felony.
    * Also in January, a Nebraska lawmaker introduced a measure that would amend the state’s anti-picketing law to include picketing “within one hundred feet of the premises of any location where a funeral is being conducted.”
    * Several South Dakota senators introduced a bill in January 2006 to prohibit picketing “that is likely to cause emotional distress” to grieving family members and that occurs from one hour before to one hour after the funeral services.
    * Also in January 2006, several Illinois lawmakers introduced a measure that would prohibit various forms of protests, including the display of “visual images that convey fighting words,” within 300 feet of any facilities used for funeral services.

    The First Amendment is so often a matter of debate because there are certain types of “speech” or expression that limit the freedom of others or place others in danger. Clearly, it is not legal to murder someone in order to express your disagreement with their beliefs. Yelling “Fire” in a crowded theater would be a public safety issue.

    One argument is that the protesters are intruding on the mourners right to mourn in peace. However, as offensive as these protesters are, I don’t believe that many these new laws are constitutional. The protesters are not threatening or endangering anyone. If they did become violent, that would be another thing.

    I hate to agree with these offensive people but I do believe the constitution is on their side. The state does not have the right to force people to be respectful.

  • Why not just arrest him and his followers for hate crimes, which these acts obviously are? This sort of thing is not First Amendment protest, but active hate speech. I notice Phelps never does this in states that have laws barring discrimination against gays.

    When it comes to morons like Phelps and his followers, I am more and more of the opinion that not all hairless bipeds on the planet are “homo sapiens.”

  • Mmm, as a good liberal, I feel a bit ambivalent:
    – Against: I actually like the fact that Phelps and associated psychos can show to the world who they truly are. That they do that under the guise of religion can only warm my atheistic heart. Phelps practices the true faith as true as faith can come: unjustifiable, repugnant, bigoted BS. I also believe that the best remedy against Phelps is not yet another ad-hoc law on the book but direct action by the good citizenry: a good and wholesome all-American bashing with an all-American baseball bat. Yet, no matter how tempting, I wouldn’t go as far as stringing them to the nearest tree.
    – For: A funeral is a private circumstance and I have never understood why free speech should justify invading the privacy of physical persons as opposed to non-physical entities – corporations, non-profits, governments, etc – which are not entitled to privacy in my view. I find picketing somebody’s home absolutely unacceptable, no matter the reason (and that goes also for you, picketing liberals!) so picketing a funeral is unacceptable squared.

  • It’s not tricky. There is no justification to protest the tragic deaths of those who have honorably served their country. Anyone who would justify that should get the f&^k out of the country which that soldier died for.

    I agree with this sentiment, which suggests to me I should clarify something. The point of the Wisconsin legislation, and for that matter this post, is to find a remedy that works. It may feel good to pass a law that prohibits these vile “protests”; it may feel even better to put Phelps under some kind of house arrest. But if lawmakers, families, and veterans get together to craft legislation that’s rejected by the courts, Phelps will continue to nauseate and everyone’s wasted a lot of time on a measure that couldn’t withstand legal scrutiny.

    This is not an issue to be wishy washy about.

    That’s true, but worrying about a law that may be ruled unconstitutional is not being wishy washy; it’s being practical. That’s the point — how to protect the families who are grieving with an effort that won’t be struck down in a few months.

    Any decent person would condemn Phelps and his digusting tactics. The goal should be to find a remedy that can last, not just one that makes us feel better in the short term.

  • Exceptions are common in law. Courts are used to examine the constitution and laws and come to a, hopefully, thoughtful, fair and just conclusion about our rights. These conclusions are often reexamined and changed for better or worse depending on who is wearing the robes at the time. Picketing a funeral will strike most people as wrong. Sending a man to a “free speech zone” at a political event I believe is starting to infringe on freedom of speech rights. The funeral effects very few of us, the law striking down expression of free speech at a political gathering effects us all.

  • Castor Troy and CB’s comments can be resolved. This shouldn’t be an issue liberals have a problem deciding from a policy standpoint (no civil society should allow Fred Phelps’ brand of poison), but from a civil liberty perspective, the point is to ensure that the government doesn’t suddenly have the power to silence protest.

    I think one solution would be using Tort law. Pass a statute making “hateful language during a funeral directed at any grieving family or friend” qualify as intentional infliction of emotional distress. This would allow the families to sue (perhaps even as a class action) Phelps and his cohorts for millions, both in emotional damage and punitive damages. How much will a jury award for punitive damages if the goal is deterrence? Plenty. Once Phelps sees this activity as a financial liability rather than a full time income, he’ll stay home.

  • Eadie, that’s what I was thinking as well. Quite a few states have tossed out that tort since too many people used it as an end run around filing a libel suit (North Carolina’s one of them). But I imagine that it’s still a valid tort in enough states that if enough people sued, Freddy Boy would be bankrupt in short order.

  • I really abhor violence. In fact, I dislike it so much that I’ll say it again. I really abhor violence.

    Now that I have made my position clear I think that it’s only a matter of time before Phelps and his cohorts cross the line one time too many, and someone takes matters into their own hands. Going to places where emotions are running high and some of the attendees are likely to be members of the military is just asking for trouble.

    If it happens I’ll loosen my standards and say that Phelps had it coming to him.

  • I love Eadie’s idea, and in fact that’s the same tactic that the Southern Poverty Law Center used to wipe out the most vile remnants of the Klan and other extremist groups over the last twenty years or so. Hit them in the wallet where it really hurts and watch how fast they disappear.

    Frankly, it might end up saving a few lives. Not all soldiers come from military families, but many do, and if an armed and grieving relative were to see Freddy Boy waving his little flags he might just decide to deliver some ordnance through somebody’s windshield. I’m a little surprised this hasn’t happened already, and if Freddy keeps it up he will have no one to blame but himself if it does.

    Not advocating, mind you, just saying.

  • Jinx! You beat me to the idea, Marcus. Just shows I should refresh my screen before posting after a brief absence.

  • Marcus,

    There is some evidence that that’s somewhat what Phelps is going for – he gets his ass kicked. He sues, and gets both air time and money.

    As far as the proposed law, I think it is open to a raft of “as applied” challenges as well as overbreadth – I don’t think a court would find it an unreasonable to restrict some speech at a funeral – such speech arguably has no purpose other than to incite, and could well be punishable under Brandenburg. However, this proposed law facially restricts a wider variety of speech than that.

  • The operable phrase hear is “peaceably assemble”. This has a different meaning when protesting at a funeral, where protesting is not normally, if ever, done.

  • It is never the decency, humanity, morality or other value-judgements about speech that the Constitution protects. It protects the vile speech of Fred Phelps as we would want it to protect the speech of someone whose views and aspirations we find uplifting and beneficial to society. But I wonder if there are no limits a government can place on where Phelps swings his verbal fist before it connects with the emotional nose of the mourners of a dead soldier/marine/airman/sailor. Phelps’ cruel methods are effective only when they are acknowledged, and they garner him and his hateful beliefs notoriety. He is a marginal character, and I would hope some rule of law could keep him on the margins from which he comes and where (if any place in this life) he belongs.

  • As much as Phelps and his ilk disgust me, they are entitled to air their small-minded hatred BUT NOT AT A FUNERAL. I don’t see any wiggle room on this one.

  • The key to ending it is:

    “Speech that could encite violence”.

    Have some Sherriffs on hand and have a few members of the family, or friends, ALMOST act violenlty against the demonstrators, and the Sheriffs department will have no choice but to act.

  • If it’s any consolation, I was prowling through freeperland recently and the freepers dislike Phelps almost as much as we do.

    One thing that bears mentioning is that the freepers were fairly open in advocating a violent solution for Phelps and friends.

    At this late hour, just to lighten this discussion up, for anyone that hasn’t seen this parody of Phelps’ website, check out – God Hates Shrimp. In these dark times a person needs a laugh now and then.

  • Fred Phelps and his truly deranged, Kansas-based Westboro Baptist Church have taken to protesting at the funerals for troops killed in Iraq, literally celebrating their deaths. Phelps and his deranged followers carry signs that read “Thank God for dead soldiers” and “Thank God for IEDs,” because they believe soldiers’ casualties are God’s revenge on a country that is insufficiently hateful towards homosexuality.

    Culture of life indeed.

  • Phelps is insane!!!!!

    Could the PATRIOT GUARD step in at FT.Campbell KY.. phelps is saposed to be here on february 8th. for the fallen eagle rememberance ceremony.

    I HAVE NEWS FOR HIM YOU CANT PROTEST ON GOVERNMENT PROPERTY JACKA$$

    The spouses & soldiers of Fort Campbell will protes aginst Phelps & his insane retarded followers.

  • It’s true, he does have the right to free speech and there are far too many people trying to change the constution as it is. But how do you stop this “NUT” from poisoning the minds of others? Yeah… most people realize that this guy is the lowest form of life there is, but to the loner guy who is just looking for some ideal to latch onto, some cause to adopt, is it really such a great idea to let this guy spread his hate? There’s way too much hate in the world as it is.

  • It is really sad that the likes of someone like Fred Phelps does have first ammendment rights like we all have, but he does. As a follower of Christ I am ashamed that he can even put the blessed name of Christ in the same sentence with the hate that he spews. God will deal with him in time. In the meantime, if he can’t keep from disturbing someone in their moment of bereavement, then he should suffer the consequences of having the full force of the law come down on him and his followers.

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