The Westboro Baptist Church goes to Washington

[CUDA]

No I agree with you. no matter how detestable the WBC is, our laws allow them to have the right of free speech.
where those right cross the line such as "Liable" or, inciting a riot, or, hate speech. that is where "Free Speech" is limited. the SCOTUS said, that no matter how much we dislike what someone has to say. they have the right in this country to say it

[Foil]

...where those right cross the line such as "Liable" or, inciting a riot, or, hate speech. that is where "Free Speech" is limited.

Exactly. The question is fundamentally whether the WBC's protest is "hate speech" or "speech we hate" (e.g. whether they could be held legally liable for damages or not).

The SCOTUS said it didn't cross the line. [I'm not sure I agree. It still seems to me that it was an invasion into a protected religious observance.]

[CUDA]

I guess technically I should have said slander instead of Liable, where Slander is the spoken word and Liable is the written word

[Bet51987]

.

[Spidey]

Of course there are exceptions to free speech, the most obvious in my opinion is when it’s not being used as an exchange of ideas and being used for other purposes.

Hammer:

If you drive a nail…it’s a tool, if you clobber somebody…it’s a weapon.

[Foil]

I guess technically I should have said slander instead of Liable, where Slander is the spoken word and Liable is the written word

Oh, I see. You're talking about "libel". I was referring to being "liable" (i.e. liability or legal responsibility) for results of what one does/says.

[Lothar]

If they want to protest dead soldiers why don't they do it in front of an army recruiting station and take their chances.

They don't protest the military directly because our military is utterly professional, and won't react the way WBC wants. The family in this case seems to have reacted strongly (and therefore given publicity) to a protest they couldn't hear and could only barely see. The military wouldn't pay them any attention, wouldn't do anything to draw added attention to them, and certainly wouldn't give them the violent reaction they want to trigger for lawsuit purposes.

the bottom line is that you're not allowed the freedom to express your opinions whenever and wherever you please.

That's true. There are three broad categories of free-speech restrictions on public property (note that free speech doesn't apply on someone else's property; if WBC went into the private ceremony they'd have crossed a whole bunch of lines.)

"Content" restrictions mostly deal with copyright (someone else owns the message) or personal identity (libel, fraud, commercial use of likeness.) They are completely inapplicable here; WBC has every right to say the offensive and wrong things they say.

"Incitement" statutes require "clear and present danger" or "imminent lawless action" to be enforced; advocating illegal activity is OK, while directly inciting crime or physical danger (yelling "fire" in or into a crowded space) are not. Emotional harm is not taken into account for incitement, and WBC is well-trained in avoiding direct incitement, so this is inapplicable.

This leaves "Time, place, and method" restrictions. Noise ordinances would fall into this category; you can't use a bullhorn at 4 am in a residential neighborhood unless you're warning of an incoming tsunami. Broadcast restrictions, like "indecency" statutes meant to protect minors from unrestricted access to adult material, fall into this category. Neither of these apply to WBC. The only remaining clause I can find is the "captive audience" clause; you can find links to every SCOTUS case on this subject on this page. In short, there are circumstances in which the government can be called upon to protect people from being subject to unwanted contact when they are completely unable to avoid it, but these circumstances are very rare. A protest a thousand feet away from a funeral, out of hearing range and barely visible, is nowhere close to triggering this; SCOTUS got this point exactly right.

Furthermore, there is the additional concept of strict scrutiny, which states that restrictions on free speech in a public forum must (1) further a compelling government interest, and (2) go no farther in impeding speech than absolutely necessary to further that interest. Laws that state there can be no protests within sight of a funeral, including vehicle routes etc., would be subject to this test, and would fail. So if there are limits, you ask, why not your additional limit: because your proposed limit massively, massively violates this concept.

[Gooberman]

To play devil's advocate for a moment: Would you still support that rule if it was a funeral honoring a convicted serial killer, and you felt you needed to protest it?

[Note that I am not making an analogy to the WBC protests or the Snyder case. Those are morally hideous. I'm addressing Bet's suggestion, because it appears to have zero exceptions.]

There are no exceptions. Why would there need to be? I would allow the family to bury him in peace no matter how much I hated him. That has to be their right.

Bee

I agree with Bet here, a grieving family should be allowed to do so in peace. Funerals aren't about the dead, they are about helping the living heal. There is nothing that one could do, that would make me punish those who wish to morn his death.

[Lothar]

I agree with Bet here, a grieving family should be allowed to do so in peace.

I agree as well. Common decency demands that much of each of us. I personally won't protest anyone's funeral.

But free speech law doesn't leave us room to put in a blanket restriction of the sort Bee has suggested.

[Foil]

Although I tend to agree with you in general, I have to disagree here:

...there are ['captive-audience'] circumstances in which the government can be called upon to protect people from being subject to unwanted contact when they are completely unable to avoid it, but these circumstances are very rare. A protest a thousand feet away from a funeral, out of hearing range and barely visible, is nowhere close to triggering this; SCOTUS got this point exactly right.

The funeral attendees were well-aware of the WBC's presence and message, and had a fairly strong argument that it disturbed the nature of the funeral despite the lack of proximity.

IMO, the primary factors in the captive-audience issue should have been awareness of the protest's content, and how/whether it affected the funeral. I still find it odd that proximity or lack thereof is considered such a strong factor, particularly when the message is clear even from a distance.

[Lothar]

The funeral attendees were well-aware of the WBC's presence and message, and had a fairly strong argument that it disturbed the nature of the funeral despite the lack of proximity.

The constitution guarantees WBC the right to present a disturbing message. The only applicable speech restriction is the "time, place, and manner" restriction. Why is it so surprising that proximity (that is, place) would be a major factor in that determination? Under the concept of "strict scrutiny", I have a hard time coming up with an absolute-minimum restriction that isn't a proximity restriction. It seems the only other approach is a content restriction ("you can't voice a disturbing message against a person whose funeral is currently going on"), which is blatantly unconstitutional.

[CUDA]

Common decency demands that much of each of us.

Hence the problem with WBC. they have no decency

[Foil]

The constitution guarantees WBC the right to present a disturbing message.

Absolutely. No argument there.

The only applicable speech restriction is the "time, place, and manner" restriction.

Right, and I was referring to the specific "captive-audience" restriction you mentioned earlier.

Why is it so surprising that proximity (that is, place) would be a major factor in that determination? Under the concept of "strict scrutiny", I have a hard time coming up with an absolute-minimum restriction that isn't a proximity restriction. It seems the only other approach is a content restriction ("you can't voice a disturbing message against a person whose funeral is currently going on"), which is blatantly unconstitutional.

No, no. I'm not suggesting any content restriction, especially not any blanket rule.

I'm suggesting that looking at audience effect is a much better 'measuring stick' than distance when looking at the captive-audience issue. After all, the effect on the audience (which doesn't necessarily correlate to physical proximity) is the primary issue at stake.

In the Snyder case, IMHO, the fact that the funeral attendees were aware of and disturbed by the message should be a stronger factor than the physical distance.

[Lothar]

I'm suggesting that looking at audience effect is a much better 'measuring stick' than distance when looking at the captive-audience issue. After all, the effect on the audience (which doesn't necessarily correlate to physical proximity) is the primary issue at stake.

In the Snyder case, IMHO, the fact that the funeral attendees were aware of and disturbed by the message should be a stronger factor than the physical distance.

We are all aware of and disturbed by WBC's message. Moreso when it's directed at someone we care about. But we can't use awareness and disturbingness as proxy criteria for time-place-manner. Being aware that there's some douchebags over that-a-way sharing a disturbing message that we can't see or hear from here simply isn't enough to sustain a first-amendment restriction.

[Foil]

Being aware that there's some douchebags over that-a-way sharing a disturbing message that we can't see or hear from here simply isn't enough to sustain a first-amendment restriction.

In general, no. Of course not.

However, IMHO:

For a specific violation of 'captive audience' (message imposed on an audience who is gathered at a specfic time/place), I believe it can.

A fundamental piece in a captive-audience determination is whether the message reaches the audience. In this case, I think there's a pretty good argument that the WBC message was quite clear to the funeral attendees. They may not have been able to see the signs or hear the voices, but they knew who was there and what was being said.

Messages can take many forms; a message doesn't always have to be seen/heard to be imposed on an audience.

[Lothar]

They may not have been able to see the signs or hear the voices, but they knew who was there and what was being said.

So you're saying the funeral attendees' prior knowledge of WBC's message, or their later exposure to that message through other means (like television), should affect WBC's right to communicate that message at such a distance that attendees couldn't even make out the message?

This doesn't even remotely come close to meeting the standards set in prior "captive audience" cases, linked again for your review. Look over them yourself; you will find:

- a ban on unwanted solicitation on private property
- the right of individuals to require future "sexually suggestive" mailings from a specific group to be stopped
- the state bar's ability to punish lawyers for specific types of in-person solicitation (notably, at an accident site or in a hospital room)

This is a very small list of speech restrictions -- on your own property, in your mailbox, and in your hospital room. These are all circumstances where there's direct exposure to the message in a situation where a person has no reasonable expectation of being able to stop said contact. Compare this to Snyder, where the audience isn't even being exposed to the message directly; Snyder's exposure was from watching television coverage after the fact (described in the intro of SCOTUS' opinion.) Note that Alito's dissent does not touch on the "captive audience" doctrine in the slightest; the court's decision on that point was right on. There is no sense in which funeral attendees, who could not see or hear the message of the protesters, qualify as a "captive audience" for that message.

[Foil]

Hm, I stand corrected. Apparently I picked up some incorrect information about the protest (specifically Snyder's prior exposure, or lack thereof) somewhere.

Given the very limited case history, I believe that there is still room for a distant-but-understood-message in captive-audience doctrine. However, I see that it doesn't fit this case.

[SilverFJ]

I'd call it harrassment, which is not legal.