RapierFugue
Posts: 4740
Joined: 3/16/2006
From: London, England
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quote:
ORIGINAL: tazzygirl
In the Phelps case, its not his freedom that people are looking to curtail. Just where he can have that freedom used. In this case, its the freedom of a family to mourn in peace. Is that a right? Not yet.
Yes I'd not disagree with much of that. From what I can gather so far, the SC could have merely ruled on one question, and yet they are choosing to rule on several. That to me says they're looking to put a marker down. Which in turn suggests legislation or ruling(s) covering a wider theme, or prompting more legislation to come?
Also, as best I can understand (and feel free to post references to refute this coz I ran out of google-steam around 4am), even the dead guy's father accepts that no actual presence of the WBC was perceived by the mourners that day - in other words, due to the various other interested parties taking action, they were kept at a distance to the extent he wasn't actually aware of their presence during the event in question.
As abhorrent as the WBC's beliefs are (and they are a repulsive group, make no mistake, and I have zero sympathy for them or their views), can you see where prosecuting someone for "malice" (or, rather, allowing an extension of the “malice exception” to apply to the 1st Amendment of the Constitution), where no actual malicious harm has been caused, might be construed as allowing the government (or big business) to cap the rights of protestors at a later date?
Some of what I read about what could then be applied to internet content (like for example, this internet content) becomes a bit scary. Well ok, it becomes a bit scary for you. In my country we're already fucked on the free-speech/expression front anyway, so score 1 to the USA. If I were you guys, this is one thing I’d be keen to keep.
The problem with applying the law to very specific, niche cases like this one is that someone (and historically, usually someone in government) will then seek to bring that niche interpretation into the mainstream, not to tackle the original targets, but some new group the government decides are "an issue". Like, as just one example, the freedom of expression of "freaks and sexual perverts", to use one mainstream characterisation of the BDSM community. Not saying they will, just that they later could. "Hi! I'm Joe Schmoe and I find these postings malicious in their description of me and my vanilla lifestyle as boring and mainstream" - ok, that's an insane, ludicrous, never-going-to-happen viewpoint, but you can bet the bank on someone, somewhere (most likely on the far right or in the "moral majority" or loonier fringes of certain religious groups) will immediately be looking at the results of the SC's verdict, as soon as it's available, to see where else it applies. That's what some lawyers do for a living.
I am really looking forward to what the SC say about this, as you are. They're some very clever people, and they're about to not only debate how many angels can dance on the head of a pin, but to dictate a government-approved standard number and weight of said angels.
If I had to guess now, I’d say that some form of “funereal privacy” law or clause will be enacted, along the lines of what President Bush put in place for military funerals, thus allowing the SC to effectively side with freedom of expression in this case, while knowing that, henceforth, the situation wouldn’t or couldn't happen again. But I don't know enough about the way US law works to know whether that would work – as an example, my assumption is that, when a federal law runs headlong into an Amendment to the Constitution, the Constitution is automatically deemed to be in the right? As a first principle?
Edited to add: Sorry, missed a bit: the “location” imperative is a red herring; the SC can’t (or at least I don't think they would) want to merely create a 1st Amendment loophole or protection for a specific location, such as a funeral. Because if they do that then what’s to stop the WBC switching to, say, weddings or christenings? (as just one daft example). So they have to apply the law and Constitution as an abstract, into a real-world example. Without curtailing anyone else's rights. Not easy.
< Message edited by RapierFugue -- 11/21/2010 10:49:13 AM >
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