Westboro goes to Court

[Big RR]

Andrew--that just might work. I like the idea of creating a short term leasehold, as it is then the lessee, and not the government, who iseeking to restrict access.

Sue--my only problem with that is that military fnerals with all their trappings are awful close to making a political speech supporting the government or the war or whatever. If the government allows political speech only on one side for the political spectrum, I question whether it will be constitutional.

[Andrew D]

In this case, it cannot be doubted that the aim of such a restriction is in fact based on the content of the speech, even though in theory it might equally restrict expressions of support.

I disagree. The aim of the restriction would be based on the disruptive nature of the speech in question, a thing which of necessity must be evaulated in the light of that which is being disrupted. For free-speech purposes, it doesn't matter whether it is the Westboro cultists or a band of bagpipers or a guy wandering by with his accordion.

Opposition? Support? A mere inclination to participate? It doesn't matter. We're talking about people who are burying their dead. I see absolutely nothing unreasonable in providing them a zone of tranquility in which they can lay their loved ones to rest without being bothered by me and the Pachelbel Canon.

[Big RR]

Andrew--if the disruption was soely the noise generated by whomever was passing by, then I think your point is well taken; but here i think the disruption is more the message than the noise. I would think many burying their dead would object to a silent group of Westboro people holding the hateful signs they carry as mcuh as they would object to one of the jerks starting a chant or making a speech.

[loCAtek]

Andrew--that just might work. I like the idea of creating a short term leasehold, as it is then the lessee, and not the government, who iseeking to restrict access.

Sue--my only problem with that is that military fnerals with all their trappings are awful close to making a political speech supporting the government or the war or whatever. If the government allows political speech only on one side for the political spectrum, I question whether it will be constitutional.

That's assuming all veterans funerals are conducted mainly in a military fashion. Nearly, all I've seen are conducted as religious ceremonies with possible military accompanyment.

[Beaglz]

You are correct Cali, most of the funerals here are religious overtones with military honors thrown in almost as an afterthought. Our little township has burried a few of our men since the war started and since I am the one that plots the cemetary around here, I am usually present at most funerals. They are not what you would normally call a miliatary funeral by any stretch of the imagination.

[loCAtek]

The most martial funeral I've attended was a burial at sea. [This was as volunteer 'Sideboy' which is the Naval term for those willing to perform high ceremonial functions such as funerals. You actually have to go to classes and train for that duty; there are unique uniform requirements and protocols that must be strictly followed. The most commonly seen ceremonial guard of this type are the Full-dress Marines who accompany caskets home.] The level of pomp and circumstance is based on the wishes of the family, and any statements left in the will of the deceased. These wishes will be honored for any veteran, not just wartime casualties. If the family wants the member's service mentioned it will mentioned; if the veteran has passed directly due to their military action, it can’t be helped but to be mentioned.

The least martial funeral I attended was a civil church ceremony for an elderly gentlemen I only knew as ground's keeper at my place of work, but he wanted his time as a Sailor on the USS Enterprise to be listed as one of his life's accomplishments. Those funerals were all presided over by a Chaplin or priest, and I can't recall anything that seemed political about them.

[Big RR]

I'm certain that many persons, including war casualties, ar eburied without the full military pomp, but I have also been to many burials that included military escorts/pall bearers for the coffin, the rifle salutes, fag folding ritual, taps, etc., and i do think that these are political statements. Not that i deny the deceased's/family's right to make whatever statement they want in connection with their loss. My only point is that regulation of speech cannot (and should not IMHO) be content based, and if you ban political speech in the cemetary, e.g. (as some have advocated) you have to consider what this will do to these ceremonies. It doesn't make me happy to defend free speech when it plays inot the hands of jerks like thosee at Westoboro, but it's one of those tough costs of freedom that have to be borne IMHO.

[Sue U]

I don't think we have to create fictional leaseholds or go through other legal contortions to restrict public protests at a private funeral. We have a solid base of First Amedment jurisprudence to address this issue:

A public facility need not be a public forum for speech; there is simply no tradition of cemeteries being associated with free speech activities in the way public parks and streets are. Cf. United States v. Grace, 461 US 171 (1983). There is nothing wrong with a government reserving its property for a particular designated use, and government property does not become a public forum unless there was an intention to create a public forum. Intl. Soc. for Krishan Consciousness v. Lee, 505 US 672 (1992). Even if a cemetery were considered a public forum, there is nothing that requires opening that forum to all comers simultaneously when being used for a specific event; a private event -- even one held at a public facility -- need not be required to allow for dissenting opinion. Cornelius v. NAACP, 473 US 788 (1985).

There may be an issue with banning protestors from streets or other public places outside the cemetry itself; however, reasonable time place and manner restrictions can be employed so as to minimize any disruption to private citizens conducting their private affairs. Ward v. Rock Against Racism, 491 US 781 (1989).

[Big RR]

Sue--I'll look at those cases, but is a funeral which is pad for partially by public funds (at least in a national cemetary the grave is publicly funded as is the military presence, etc.) a "private finuction". This is not someone renting a public theater for their private use, but someone using public funds to do something which i think might be charcterized as a public act. In a way, it's the government making use of the burial as a way to stage a public ceremony to engender further support for their war effort (indeed, using the deaths of soldiers to hype up support for a war, however unpopular the reasons behind that war are) is a great ploy of government.

Which I think places us in a somewhat different situation than a family seeking to privately bury their dead. I don't really think that the government can sponsor a bit of political theater and then seek to squelch any dissent. At least that's wha I think wuld be a reasonably argument.

[Gob]

Should free speech take precedence over respect for the dead and the bereaved?

I think not.

Personally I think someone should take a baseball bat to these scum.

[loCAtek]

I'm certain that many persons, including war casualties, ar eburied without the full military pomp, but I have also been to many burials that included military escorts/pall bearers for the coffin, the rifle salutes, fag folding ritual, taps, etc., and i do think that these are political statements.

Patriotic perhaps, but that's not the same politics since the service is made up of all parties, not just one.

Not that i deny the deceased's/family's right to make whatever statement they want in connection with their loss. My only point is that regulation of speech cannot (and should not IMHO) be content based, and if you ban political speech in the cemetary, e.g. (as some have advocated) you have to consider what this will do to these ceremonies. It doesn't make me happy to defend free speech when it plays inot the hands of jerks like thosee at Westoboro, but it's one of those tough costs of freedom that have to be borne IMHO.

Which was debate point in the OP, Westboro is not protesting a political issue but a sexist one. That's discrimination and is not covered by Free Speech.

[Big RR]

Lo--politics crosses party lines, and expressing support for, or against, a war effort the country is involved in is inherently political IMHO. And these rituals are designed to engender such support in much the same way as saying "X thousands of people have been killed in this action, we owe it to them to continue the fight and not stop and dishonor their sacrifice); every major national politician has known and used that same argument at one time or another.

As for the speech being "sexist" (by which I presume you mean anti-gay), i won't argue that; but free speech will zand must cover speech speech that is sexist, or racist, or any other --ist you want. When the nazi party marches, of course it's racist; but we have no right to prevent them from doing so (nor should we). That's the cost of free speech, that some will have their feeling hurt. Now a call to violence (like "kill the fag" or "burn down the jew's store") is not protected, and is punishable; but that's not what i see happening here.

Look, i feel tremendously bad for the families, and i would love a way to prevent these jerks from adding to their grief (hell I even feel like Gob about beating them with baseball bats), but I also value free speech and think it is one of the most important freedoms we have. Sometimes jerks like this abuse it, but I don't want to throw the baby out with the bathwater.

[Gob]

But surely there should be some caveat on abusing free speech in extreme cases like this?

[Big RR]

I think there are ways that the speech could be regulated which would not amount to censorship of speech and ideas just because most of us consider them abhorrent, but I do think we have to be careful to set forth the regulations so censorship will neithe roccur nor be implied.

[loCAtek]

Lo--politics crosses party lines, and expressing support for, or against, a war effort the country is involved in is inherently political IMHO. And these rituals are designed to engender such support in much the same way as saying "X thousands of people have been killed in this action, we owe it to them to continue the fight and not stop and dishonor their sacrifice); every major national politician has known and used that same argument at one time or another.

Granted BigRR, the military families don't always support the war. My friend MS1 Clarke went forward against the wishes of her family particularly her teenage sons. They spoke out against the war after her death and away from funeral, because political statements aren't appropriate at interment services. The point is show respect for the deceased, in any many of the next of kin's choosing. Should the departed choose to have Viking Funeral, that doesn't mean their politics are necessarily Norse.

As for the speech being "sexist" (by which I presume you mean anti-gay), i won't argue that; but free speech will zand must cover speech speech that is sexist, or racist, or any other --ist you want. When the nazi party marches, of course it's racist; but we have no right to prevent them from doing so (nor should we). That's the cost of free speech, that some will have their feeling hurt. Now a call to violence (like "kill the fag" or "burn down the jew's store") is not protected, and is punishable; but that's not what i see happening here.

When the Nazi Party marches they are not racist, they ARE promoting an alternative political party, but should they carry banners with "Down Jews" then they would be racist. Which is what Westboro is doing; they are not demonstrating to promote their church, but actually carrying signs that slur homosexuals. They say 'God' is doing the violence; who's god? THIER God of their church, they say is doing it. I think they've crossed the line.

[Sue U]

Loca & Gob: "Hate speech" -- whether racist, sexist, anti-Semitic, homophobic, xenophobic or whatever -- is just as protected by the First Amendment as any other kind of speech (except "commercial" speech, but that's a rant for another day). Westboro Baptists are entitled to shout that God hates fags and Nazis are entitled to slur Jews, blacks, Mexicans and other "mud people." As long as the speech is not a direct incitement to produce imminent lawless action (and that's a very high standard -- see Brandenburg v. Ohio), you're allowed to say whatever you want in this country, no matter how repulsive the idea expressed.

Big RR: I don't think a funeral becomes political speech simply by being a military funeral, except in the sense that every action one takes is ultimately a "political" choice to favor one thing over another. Is a Catholic or Jewish or Wiccan funeral any less a political expression than a military one? One can impute whatever meaning one wants to a military funeral -- support for a war, or proof of the futility and waste of war, or evidence that God hates fags -- and certainly politicians are adept at using all kinds of events as backdrops for their own agendae. But without significantly more, I don't think that transforms a funeral into what we could genuinely consider political theater in and of itself; certainly, a funeral is one of the most intensely personal events one can experience, directed toward interring the dead and comforting the survivors. Simply because a funeral might be military and the cemetery government-owned does not, without substantially more, make it a public event in a public forum where speech remains unfettered.

The Westboro Baptists have hit on a remarkably effective tactic to disseminate their message -- making the death of military personnel an integral part of its meaning. But I don't think the First Amendment requires anyone to allow them to express that message at a fundamentally private ceremony, even if conducted on public property. Similarly, I cannot conceive that the the First Amendment requires opening national cemeteries to the Westboro Baptists so that they might dance on the graves of soldiers killed in action, even though that would undoubtedly be political speech on public property.

We're talking about people who are burying their dead. I see absolutely nothing unreasonable in providing them a zone of tranquility in which they can lay their loved ones to rest without being bothered by me and the Pachelbel Canon.

If you show up playing the Pachelbel Canon at my funeral, I would hope my survivors consider it a justification for some intensely private non-state action -- preferably involving a blowtorch and pliers.

BTW, Andrew, I heard a fun interview yesterday on WNYC with the JACK Quartet, who released a set of the Xenakis string quartets last year. Not quite Elliott Carter, but still you might find something to appreciate.

[Big RR]

ny attempt to regulate speech based on its content (and that is what we are trying to do here) however well intentioned (and it is certainly well intentioned here and is being proposed to spare the bereaved considerable emotional stress) makes me very nervous. When does a military (or other for that matter) cemetary become political speech? When the media comes? When prominent politicians come? Never? IMHO it's a tough call.

Look at funerals for police killed in the line of duty; often hundreds of police come and line the streets around the cemetary; when asked why, the answer is usually to show solidarity with the other police. But it is a political statement, particularly in situations where there was some question of how appropriately the officer(s) acted,.

[Sue U]

Even if, for the sake of argument, funerals were considered political speech and national cemeteries were considered public forums, that doesn't mean that Westboro or anyone else has a right to be on the premises at the same time. Because of the nature of the use, I think reasonable time place and manner restrictions could be applied to limit access of those who were not part of the funeral ceremony.

Any limitation on speech or public access is always going to be a tough call, but it necessarily has to be informed by context; that's the whole purpose of the "reasonable" part of t-p-m restrictions.

[Big RR]

Sue--I'm not certain such a restriction would be upheld as it would still be overly broad. One can't restrict demonstrations at abortion clinics (so long as a buffer zone is present to permit access), nor can the demonstrators be restricted from approaching the women choosing to enter. I would think this would interfere with a woman's right to choose her own health care procedures in the same way that the bereaved are annoyed and bothered by the WEstboro idiots.

My guess is that it would come down to defining what the compelling interest of the government is, and how narrowly tailored the restriction would be to that interest. in the instant case, i would think a government interest in the rights of the bereaved not to be bothered when they are seeking to bury their dead would be no more compelling than the interest in ensuring that a owman may seek a legal healthcare procedure without being bothered, and would be stricken down.

[loCAtek]

Nonetheless, a history of intimidation by a particular group may justify a restrictive buffer zone. For example, the California Supreme Court upheld an injunction provision creating a "clear zone" that effectively barred antiabortion protestors from the public sidewalk in front of a clinic by requiring that all picketing, demonstrating, or counseling take place on the public sidewalk directly across the street.(38) The court said the restriction was justified based on the group's history of intimidation and the fact that the first amendment does not guarantee the right to a captive audience.

I owuld argue that Westboro have a history of intimidation.

And, since funeral goers are not part of the government that conducted the war, nor are attending the funerals as representative of the homosexual community but as mourners, then;

Noise Restrictions

The Supreme Court in Madsen upheld a portion of the injunction that restrained the protestors from singing, chanting, whistling, shouting, yelling, and using bullhorns, auto horns, or sound amplification equipment within earshot of the patients inside the clinic during the hours of 7:30 a.m. through noon on Mondays through Saturdays. Noting the importance of noise control around hospitals and medical facilities during surgery and recovery periods, the Court found the noise restriction burdened no more speech than necessary to ensure the health and well-being of the patients at the clinic. The Court noted that patients should not have to "...undertake Herculean efforts to escape the cacophony of political protests."(39)

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