Restraining expression is a Bad Thing. That’s not because all expression is a good thing, or equally good. That’s because (a) it’s not always obvious what expression is actually worthwhile, (b) restrictions are almost inevitably abused to restrict good expression, and (c) there’s value in the “marketplace of ideas,” such that we all learn from goofy ideas, even if to realize that they are goofy.
Thus, even if one finds the publication of denegrating cartoons of Mohammed to be hurtful or insulting or obnoxious or irresponsible, legally restraining such is dangerous because next time it might be something you want to publish or express that someone else finds (whether you intended it or not) hurtful or insulting or obnoxious or irresponsible. It’s dangerous because ideas don’t go away because you ban their public expression, they just fester undergorund. It’s dangerous because in the absence of public debate, the social consequences of such expressions are harder to gauge and expect.
So now for our own domestic example, the ever-hateful Fred Phelps and his Westboro Baptist Church in Topeka. Known for years for the charming practics of going to the funerals of gays and cheerfully informing everyone there that the dearly departed was roasting in Hell (as well as hosting various sites with domains I won’t repeat here but that manage to be insulting to God and gays alike), Phelps is finally garnering some serious governmental attention by now going to the memorial services of Iraq war fallen and announcing in as obnoxious a fashion as possible that the dearly departed fell battling on behalf of a nation that accepts abominations (like homosexuality), and thus is, as well, roasting in the fiery furnace — or, at the very least, that the dead were struck down as part of God’s vengeance against the US.
The Phelpsies also offered up similar observations at the funerals for some recent coal miner deaths.
I’ll note with some distaste that it took this particular esclation to get state legislatures to consider action. Never mind the feelings of the survivors of gays who have died; now that Phelps is upsetting war widows, etc., Something Must Be Done!
That something is a variety of state laws proposed and, in some cases, passed, banning the Phelpsies from such memorial services. Or, because you can’t pass laws about specific individuals, banning protests or demonstrations within certain distances of, etc.
Some of the bills specify noisy, disruptive behavior or signs with “fighting words,” as in Wisconsin. Some bar protests within one or two hours before or after a funeral starts; others specify distances ranging from 10 car lengths to five blocks away; some include both.
Violations can bring fines of a few hundred dollars, up to 30 days in jail, or more. Wisconsin is calling for fines of up to $10,000; one of five Oklahoma bills would set a one-year jail sentence.
Missouri’s bill was named for Army Spc. Edward Lee Myers, 21, whose wife went to his funeral an hour early to try to avoid protesters. They were already across the road, holding signs that read “God Hates Fags” and “God Made IEDs,” a reference to roadside bombs.
[…] Legislation against funeral protests was also introduced in West Virginia last month after a small knot of protesters from Westboro Baptist demonstrated outside a memorial for the 12 men killed in the Sago Mine disaster. The protesters held signs reading, “Thank God for Dead Miners,” “God Hates Your Tears” and “Miners in Hell,” arguing that the miners’ deaths were a sign of God’s wrath at America for tolerating gays.
Hrm.
The laws will almost certainly be challenged, by Phelps as well as others. Case law on similar restrictions — e.g., protests and demonstrations at abortion clinics and at abortion doctors’ private homes — is mixed as to what courts will allow.
The trick is to try to see past the outrageous behavior (as far as I’m concerned, the Phelpsies could get hit by a poorly steered hearse and I would shed no tears) to see what possible risks such legislation poses. For example, an NPR article the other day on this noted that peaceful (and, to some, far less objectionable) demonstrations by folks such as Cindy Sheehan at war memorials would be subject to the same restrictions. And, of course, you get into a slippery slope — what sorts of “events” and locations are going to be legally protected from protesters (always for some fine and protect-the-public’s-sensibilities reasons), and how do you keep that from incrementally being abused by politicians and others in power?
Phelps is, to be uncharitible, scum, and his actions are rudeness to the highest degree. But do we really want to legally restrict rudeness? Because, if we do, where does it end?
As H.L. Mencken put it:
“The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.”
These sorts of laws might be the right thing to do, in some fashion. But it’s an area that we need to tread very carefully into.