Governing through Reason
Limits on the Noise
This last Tuesday, August 7, President Obama signed the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012. It’s a clumsy name for a bill that does many things. It will…
… help improve access to health care for veterans, streamline VA services, expand support for homeless veterans, and also provide extended medical care for veterans and their families who were based in Camp Lejeune in the years the water was contaminated there, and prohibit protesting at military funerals.
The part of this you may have heard about is the final phrase: “prohibit protesting at military funerals”.
Out of a collection of non-controversial provisions, that last one stands out. It bears special mention.
First note all the other things the bill does. As the President said in signing the bill,
It is going to improve access to health care, streamline services in the VA. It expands support for veterans who are homeless… [T]his bill ends a decade-long struggle for those who serve at Camp Lejeune. Some of the veterans and their families who were based in Camp Lejeune in the years when the water was contaminated will now have access to extended medical care.
The media is primarily focused on a different part. The bill prohibits protesting within 300 feet of a military funeral, within two hours before or after the funeral. There are significant penalties for violating this statute, including, for example, fines of “not less than $25,000 or more than $50,000 per violation.”
The law was not created on some whim, but to address a particular problem, primarily the Westboro Baptist Church, whose URL is — this isn’t a joke — http://www.godhatesfags.com/.
The church is known for its extreme and vocal stance on a number of issues, including Jews, movies, Islam, President Obama, Catholics, and “the media”. According to Westboro, God hates all these things. Little wonder, perhaps, that the Southern Poverty Law Center and the Anti-Defamation League both label Westboro as a “hate group”. They do seem to be obsessed with hate.
What is the connection between Westboro and military funerals? Westboro has been active in anti-gay activities since 1991, and for years has been staging protests at funerals, including the funeral of Matthew Shepard, a young man from Wyoming who was beaten to death by two men because of his homosexuality. They have been particular active at the funerals of military personnel. Congress has apparently had enough of this activity.
Setting aside the inconvenience and disrespect for the dead and for our men and women who serve our country, is there a problem here that needs to be addressed? Hate groups have targeted military bases for protests. Wade Michael Page, who allegedly shot and killed six people in the attack on a Sikh temple last Sunday, was stationed at Fort Bragg, North Carolina, in 1995 when a recruiter from a local White supremacist group was active there. That year, two neo-Nazi soldiers from the 82nd Airborne killed a black couple in nearby Fayetteville. It seems likely this latest mass shooting may have been influenced by these events. (By the way, is this the time yet to talk about gun control?)
Is there a connection between hate speech and acts of domestic terrorism? There are laws which restrict free speech rights in cases of incitement to violence or invitation to commit criminal acts. Is that sufficient reason to limit the ability of groups like Westboro to disrupt military funerals? Is the blatant disrespect for servicemen and women and their grieving relatives sufficient reason? If it is, should these restrictions be limited to military funerals? Shouldn’t the memory of Matthew Shepard and the grief of his relatives also be of concern?
Or does the need to oppose gays and lesbians override these issues? Is the danger to our society from a “homosexual agenda” a more pressing matter?
Or are all these worries misplaced? Does a free society need to accept all these dangers as the necessary price for freedom of speech?
What do you think?
Related articles
- Obama Signs Law Limiting Westboro-Style Funeral Demonstrations (advocate.com)
- Honoring America’s Veterans Act Signed By Obama, Restricting Westboro Military Funeral Protests (huffingtonpost.com)
- Military Funeral Protesters Vow to Defy New Law (abcnews.go.com)
- This New Law May Spell The End Of Westboro Baptist Church Military Funeral Protests (businessinsider.com)
- Westboro Vows To Defy Rules After Congressional Smackdown (huffingtonpost.com)
- Obama Signs Camp Lejeune Act (personalliberty.com)
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As the old saying goes, you can’t legislate morality. It’s a correlate that you can’t ban stupidity by legislative fiat.
The Westboro Baptist jerks have a right to their stupid and hateful opinions. On the other hand, the citizens of my former hometown have the right to do this.
Unfortunately, it’s not true, but it’s a good story nonetheless.
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Max,
It may not be found unconstitutional. Courts have ruled in favor of “protest zones” being set up at places like political conventions, i.e., designated areas where protestors may be active (thus limiting where they may protest) during certain hours. Courts have also ruled that hate speech is, in some instances, not protected, particularly when it is an incitement to violence.
In the instance of this current law, the right of protest groups to speak is not being disallowed, but only put within (or rather, kept outside of) certain boundaries of space and time. We’ll have to see how the legal arguments shake out.
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#4 written by Max 9 months ago
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That’s a great case to bring up, Max. Here’s a link to a story about it. Directly applicable to the new law, since the case is that of the father of Lance Corporal Matthew Snyder, who died in Iraq, and whose funeral was disrupted by Westboro.
SCOTUS has been historically lenient in First Amendment cases, deciding for the rights of free speech in almost every instance, as in their unanimous decision striking fown anti-flag-burning laws. So you may be right, the current Court may well find in favor of Westboro should the new law be brought before them. (It is fascinating that the lone dissent in Snyder v Phelps was Alito.)
On the other hand, the new law does not seek to silence Westboro as Snyder very openly tried to do. It only puts some physical and scheduling limits on their activities. I don’t know how well that will play.
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I personally approve of Canada’s hate speech laws, but I’m not sure they would apply against the Westboro Bunch. The Canadian laws are designed to prevent speech that might incite violence against a specific identifiable group.… and
the Westboro Baptists are more likely to inspire violence against themselves with their ugly antics.I think Westboro is, instead, a perfect case for American freedom of speech and assembly to triumph. Wherever they are likely to appear people should be urged to come out by the thousands, wearing a specific pre-determined color to display unity, and simply stand quietly in support of the bereaved family. A peaceful demonstration of decency, respect and solidarity that would be, as the commercial says, “louder than hate.”
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#7 written by Valjiir 9 months ago
Jake Blues: Hey, What’s goin’ on?
Police Officer: Ah, those bums won their court case. They’re marchin’ today.
Jake: What bums?
Police Officer: Fuckin’ Nazi Party
Elwood Blues: Illinois Nazis.
Jake: I hate Illinois Nazis.
While my heart agrees with the anti-protest part of this new act, my mind can’t help but reject the notion. The protests of the Westboro church are offensive, but since I believe they don’t rise to the level of incitement, they have to be protected under the 1st Amendment. And BTW, I disagree with the political “protest zones” for the same reason. Like Jake Blues, I hate what Illinois Nazis (or any kind, for that matter) say, but, as the old saw goes, I will defend to the death their right to say it.
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#8 written by Mainer 9 months ago
Wore the uniform too long to like either side of this. I detest what the Westboro twits do but I can’t like infringing on some thing so many of us have worked so hard to preserve. My great fear has been for some time that the supposed Baptists will cause a brother or sister in uniform to react baddly and cause them to ruin their lives. No pitty for the jerks, their signs and their fake religious drivel.
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There’s more here to consider than the obvious stuff.
First, the words of the Constitution don’t necessarily mean what you think they mean. For example, the First Amendment says:
Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble …
Those words imply to a layperson that you can say whatever you want whenever you want without breaking the law. But that’s never been the legal meaning of “freedom of speech”. (And, as an aside for another day, “the right of the people to keep and bear Arms” similarly has a different legal meaning from the lay understanding as well.)
This is why we can have laws restricting speech, despite the lay interpretation of the words “freedom of speech”. We can be restricted by the government as to where and when we can make our public statements, provided that there is a compelling societal interest in restricting all speech of that mode, regardless of content. In this case, the compelling societal interest is in maintaining the peace for those attending funerals. It’s similar to the sorts of restrictions on protesting outside a person’s home at 3am. The key in this case is that the law cannot restrict the content of the speech. It’s the content issue that prevents laws against flag-burning from standing.
Snyder v. Phelps doesn’t apply as precedent in this case because Snyder was suing Phelps for defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress and civil conspiracy. In other words, he was attempting to use existing civil law. The Supreme Court said that the existing civil law did not provide for such liability. The Court said nothing about the constitutionality of a law that prohibited all protests of all sorts from within a reasonable distance of a funeral.
I can see a path for the Supreme Court to hold this law constitutional.
I do find the Westboro protesters to be reprehensible, but it is not that reprehensibility that leads me to agree with this law. Rather, it’s the societal benefit that arises from permitting people to attend a funeral in peace. I don’t care what the message is; I care about the disruption.
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So, Michael, the case you’re making (tell me if I have this right) is that the First Amendment phrase “freedom of speech” refers to the content of speech, not the time or place. Which means the only part that is protected is that people can say whatever they want, and any law that limits where or when they say it cannot constitutionally limit the content of what they say. As long as a law that restricts when or where applies to all speakers of all viewpoints, that law is Constitutionally valid. Correct?
Further, limits may even be placed on the content, if there is an overriding social need to do so — which is the intent behind obscenity laws, and incitements to violence, and child pornography. Again, correct?
Thanks for the clarifications.
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#12 written by Max 9 months ago
Y’all haven’t been near to a Westboro protest recently I can tell.
It’s a GOOD thing! Because groups, as the Patriot Guard Riders M.C., joined by local motorcycle clubs, vets and ordinary people will station themselves BETWEEN the sad haters, exercising their OWN freedom of speech and assembly, and the object of their protest. Just about everywhere they go now.
Does one’s heart good.
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DC,
As long as a law that restricts when or where applies to all speakers of all viewpoints, that law is Constitutionally valid. Correct?
Close. A law that restricts all speech, regardless of content, must show some compelling social interest that supports the restriction. That is, you can’t pass a law banning all protests within a particular government’s jurisdiction. That’s overbroad, and would not support an argument of compelling social interest. The law must be crafted in such a way as to minimize the restriction to the point where it just covers the compelling social interest, and no more.
Further, limits may even be placed on the content, if there is an overriding social need to do so — which is the intent behind obscenity laws, and incitements to violence, and child pornography. Again, correct?
Yes, and again it must be crafted in a way to minimize the restrictions as much as is practical.
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#16 written by WA7th 9 months ago
Max — Y’all haven’t been near to a Westboro protest recently I can tell.
I actually passed by a Westboro protest five blocks from my home on Friday 7/27, but I was on my way to do laundry. By the time I finished the laundry, got home and grabbed my camera, they were gone. Darn the luck. I tried, anyway.
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#17 written by junk-shot 9 months ago
I like how the Foo Fighters counter-protest the Westboro Baptist idiots… keepin it clean.
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#18 written by turrboenvy 9 months ago
So this new law presumably outlaws the counter protests as well. So Phelps and clan can protest at exactly 300 feet, allowing no space for counter-protesters to get between them and the funeral.
Also, within 300 feet of what? The funeral procession, the road to the cemetery, the cemetery gates, the plot itself? Any of the mourners? Could you then set up “mourners” to stand guard 299 feet from eachother and create a larger bubble? Who determines who is a mourner and who is a protester? I’d RTFL, but I don’t speak “legislator,” and wouldn’t understand it.
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turrboenvy,
So Phelps and clan can protest at exactly 300 feet, allowing no space for counter-protesters to get between them and the funeral.
Exactly right. And that’s what Westboro plans to do.
within 300 feet of what?
The answer is in Title VI, Section 1388 of the Act:
§ 1388. Prohibition on disruptions of funerals of members or former members of the Armed Forces
(a) PROHIBITION.—For any funeral of a member or former member of the Armed Forces that is not located at a cemetery under the control of the National Cemetery Administration or part of Arlington National Cemetery, it shall be unlawful for any person to engage in an activity during the period beginning 120 minutes before and ending 120 minutes after such funeral, any part of which activity—
(1)(A) takes place within the boundaries of the location of such funeral or takes place within 300 feet of the point
of the intersection between—
(i) the boundary of the location of such funeral; and
(ii) a road, pathway, or other route of ingress to or egress from the location of such funeral; and
(B) includes any individual willfully making or assisting in the making of any noise or diversion—
(i) that is not part of such funeral and that disturbs or tends to disturb the peace or good order of such funeral;
and
(ii) with the intent of disturbing the peace or good order of such funeral;
(2)(A) is within 500 feet of the boundary of the location of such funeral; and
(B) includes any individual—
(i) willfully and without proper authorization impeding or tending to impede the access to or egress from such location; and
(ii) with the intent to impede the access to or egress from such location; or
(3) is on or near the boundary of the residence, home, or domicile of any surviving member of the deceased person’s immediate family and includes any individual willfully making or assisting in the making of any noise or diversion—
(A) that disturbs or tends to disturb the peace of the persons located at such location; and
(B) with the intent of disturbing such peace. -
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The portion of legislation highlighted in the article will, and ought to, be found unconstitutional on First Amendment grounds.
Most of the current counter-tactics being used against the Westboro Spastic Church are effectively isolating them from the families of the fallen, and in many cases, once the announcement is made that the counter protesters will be present, the Phelps followers back down and not showing up.