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ACLU Backs Funeral Picketers:

The ACLU has filed suit on behalf of a religious group that pickets military funerals with anti-gay messages. The suit challenges the state of Missouri's law barring picketing near military funerals. An equivalent federal measure was signed into law earlier this year. According to the Washington Post:

The church and the Rev. Fred Phelps say God is allowing troops, coal miners and others to be killed because the United States tolerates gay men and lesbians. . . .

In the lawsuit the ACLU says the Missouri law tries to limit protesters' free speech based on the content of their message. It is asking the court to declare the ban unconstitutional and to issue an injunction to keep it from being enforced, which would allow the group to resume picketing.

UPDATE: I neglected to note that Eugene has addressed the constitutionality of limits on funeral picketing in this article for National Review Online (and here on the VC).

Vovan:
Free speech for the dumb - Metallica (fitting for a late Sunday song lyric)

(Originally recorded by Discharge)

Free speech, free speech for the dumb
Free speech, free speech for the dumb
Free speech, free speech for the dumb
Free fucking speech

Free speech, free speech for the dumb
Free speech, free speech for the dumb
Free speech, free speech for the dumb
Free fucking speech
7.23.2006 11:41pm
Traveler:
Uh, if an equivalent federal law is in place, how can challenging the Missouri law as unconstitutional "allow the group to resume picketing"?

Is the ACLU challenging both laws?
7.24.2006 12:11am
Gob Bluth:
The text of the relevant of the statute 578.501 RSMO

2. It shall be unlawful for any person to engage in picketing or other protest activities in front of or about any church, cemetery, or funeral establishment, as defined by section 333.011, RSMo, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral. Each day on which a violation occurs shall constitute a separate offense. Violation of this section is a class B misdemeanor, unless committed by a person who has previously pled guilty to or been found guilty of a violation of this section, in which case the violation is a class misdemeanor.
3. For the purposes of this section, "funeral" means the
ceremonies, processions and memorial services held in connection with the burial or cremation of the dead.

I'm interested in what the distinguished professors think. This bill was enacted in response to Phelps' content, for sure, but it's at least content neutral on its face, no? Can Phelps argue that the effect of this statute is only to suppress his 'God hates fags' speech?
7.24.2006 12:16am
Gob Bluth:
Please disregard that statutory language. I quoted the wrong law. 578.501 was repealed and substituted with a new 578.501 and .502.

502 is a "back-up" provision that applies only if 501 is declared void. 502 inserts a perimeter limit of 300 feet around the funeral area. Same questions as above to the profs.

578.501.
2. It shall be unlawful for any person to engage in picketing or other protest activities in front of or about any [church, cemetery, or funeral establishment, as defined by section 333.011, RSMo,] location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral. Each day on which a violation occurs shall constitute a separate offense. Violation of this section is a class B misdemeanor, unless committed by a person who has previously pled guilty to or been found guilty of a violation of this section, in which case the violation is a class A misdemeanor.

578.502.
2. It shall be unlawful for any person to engage in picketing or other protest activities within three hundred feet of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral. Each day on which a violation occurs shall constitute a separate offense. Violation of this section is a class B misdemeanor, unless committed by a person who has previously pled guilty to or been found guilty of a violation of this section, in which case the violation is a class A misdemeanor.
...
Section C. The enactment of section 578.502 shall become effective only on the date the provisions of section 578.501 are finally declared void or unconstitutional by a court of competent jurisdiction and upon notification by the attorney general to the revisor of statutes.
7.24.2006 12:26am
jota:
One wonders if some on this board will ignore the ACLU's defense of speech--here, homophobic speech--as the ACLU's defense of a bigot's civil liberties surely challenges the black and white notion that the ACLU is a leftist hotbed of communists and terrorist-sympathisers.
7.24.2006 1:30am
Huh:
I'm going to take a stab at this one. My guess is the ACLU will argue that banning "picketing" and "protest activities" is NOT content neutral. Of the set of possible group activites, this bill targets only those that are unwanted or unpopular, effectively allowing the state to choose what is a protest and what is a peaceful, supportive &welcome gathering.
7.24.2006 1:31am
Bobbie:
Banning "protesting" speech is, on its face, not content neutral and is thus subject to strict scrutiny.
7.24.2006 1:42am
HLSbertarian (mail):
jota: I for one have largely written off the ACLU an increasingly leftist organization. I still think there's plenty of evidence to back that up, but this story is a surprising strike against the grain, and like you I hope it won't be ignored.

I'm not this cynical, but one might argue that preserving the right to protest at military funerals is especially important to the left during a war they largely oppose, even if it must be won on behalf of religous bigots. Of course, that just plays into the larger point that content-based restrictions are a danger to everyone because the shoe very often and very quickly finds itself on the other foot.
7.24.2006 2:19am
FC:
jota: The Phelps gang are terrorist sympathisers.
7.24.2006 2:38am
Robert Lyman (mail):
Hmmm...fighting words, anyone? That's how I'd argue it for the state.

But good for the ACLU for defending speech. (Although I don't see that this proves it isn't a hotbed of communists and terrorist sympathizers. Stopped clocks and all.)
7.24.2006 2:44am
Joel B. (mail):
I was thinking about this earlier, and I don't know why I would be tempted to give kudos to the ACLU for defending these nutjobs. As opposed really important civil liberties defense for the free exercise of religion, they choose to defend these wackos, that are actually quite leftist in their antiwar and various other rhethoric. Why One wonders if some on this board will ignore the ACLU's defense of speech--here, homophobic speech--as the ACLU's defense of a bigot's civil liberties surely challenges the black and white notion that the ACLU is a leftist hotbed of communists and terrorist-sympathisers this would happen is beyond me, in fact the defense of these guys speaks to the black and white notion that the ACLU is a leftist hotbed of communists and terrorist sympathisers.

The ACLU looks up and down the fruited plain for a church to come to the defense of, and this is who they pick? It makes the ACLU look bad, not those who decry the ACLU or the Westboro "Church" as nuts. In fact, it's like the ACLU coming to the defense of the "World Church of the Creator" and expecting conservative Christians to realize that wow the ACLU is sticking up for churches. Yeah right. Sorry, no dice.
7.24.2006 2:45am
some guest:

I'm not this cynical, but one might argue that preserving the right to protest at military funerals is especially important to the left during a war they largely oppose, even if it must be won on behalf of religous bigots.


What would one cite for such an argument? I can't think of any examples or press accounts of liberals protesting at military funerals. I think if it had happened, that's something the press would be eager to cover.
7.24.2006 3:02am
ReaderY:
Although I disagree with the ACLU on many issues, including this one, they have historically supported an absolutest free speech position, and this case is similar to others (such as the Skokie neoNazi case) where they filed lawsuits on behalf of unpopular groups.

In this case I would think that picketing a cemetary would bear some similarity to picketing a private home, restrictions on which the Supreme Court has generally permitted. A cemetary has never been a traditional public forum; it is a place where people expect a certain tranquility, and come with a certain vulnerability. It strikes me as very similar to a hospital. I suspect the Supreme Court's abortion-picketing cases -- roundly criticized by Scalia -- which have generally upheld restrictions on protests of abortion clinics, staff homes, etc. -- will be found analogous and will apply.

Although oddly enough, come to think of it, the ACLU, despite its general absolute-free-speech position, has rarely come to the aid of the first amendment rights of abortion protestors.
7.24.2006 3:07am
ReaderY:
I suspect the federal law might be additionally supportable on war powers grounds -- the power to create and regulate military cemetaries is quite likely necessary and proper to the power to raise and support armies. Military matters are more often found to be compelling interests and more easily pass higher levels of scrutiny.
7.24.2006 3:10am
Barry:
Why should it come as a surprise that the ACLU would support the picketing of the Democratic Fred Phelps?
7.24.2006 3:56am
Allen Asch (mail) (www):
Joel B wrote:

The ACLU looks up and down the fruited plain for a church to come to the defense of, and this is who they pick? It makes the ACLU look bad, not those who decry the ACLU or the Westboro "Church" as nuts. In fact, it's like the ACLU coming to the defense of the "World Church of the Creator" and expecting conservative Christians to realize that wow the ACLU is sticking up for churches. Yeah right. Sorry, no dice.
If you would like just a few of the many examples of the ACLU sticking up for Christian churches of all varieties, see my ever-growing webpage at this link: The ACLU Fights For Christians

On the subject of funeral picketing, there's an excellent op-ed opposing a similar law in NJ written by Deborah Jacobs, Exec Dir of the ACLU of NJ, here: Don't Fight Hate Speech By Limiting Freedom

There's also some further info on the Missouri case in the press release here: ACLU-EM press release
7.24.2006 5:36am
steve (mail):
"Although oddly enough, come to think of it, the ACLU, despite its general absolute-free-speech position, has rarely come to the aid of the first amendment rights of abortion protestors."

Ah, fer chrissakes, just google "aclu abortion protests"
7.24.2006 6:49am
Richard Aubrey (mail):
Some guest: It's been a Very Bad Thing to give dead soldiers and their families a hard time. It may have helped the lefties with their backed-up spleen during the Viet Nam war, but the wiser noticed it was bad public relations.


When my brother was killed, my folks got some harrassing calls to the extent that he deserved it, and so forth.

The guy whose family was murdered by a neighbor while he was in Iraq is a point. Some really nasty lefty stuff is showing up to the point that they all deserved it. Sort of the little Eichmanns approach.

I don't think the wiser heads among the lefties can control their folks much longer. It's going to get nasty and the lefties can look to the Phelps case.

Phelps, btw, is a lawyer. So are some of his kids. Why do they need the ACLU?
7.24.2006 7:42am
raj (mail):
Gob Bluth 7.23.2006 11:26pm

I am not privy to the ACLU's interest in this case, but it is not irrational to believe that "or other protest activities" is not content neutral. That is, affirmance or support might not be considered protest activities.

It strikes me that a statute that banned noise (including chanting) within "so many feet" of a church or chapel or cemetary above a certain decibel level might pass muster, since that would be content neutral. That wouldn't, however, affect silent demonstrations--i.e., with posters.
7.24.2006 7:47am
raj (mail):
Joel B. 7.24.2006 1:45am

The ACLU looks up and down the fruited plain for a church to come to the defense of, and this is who they pick? It makes the ACLU look bad, not those who decry the ACLU or the Westboro "Church" as nuts. In fact, it's like the ACLU coming to the defense of the "World Church of the Creator" and expecting conservative Christians to realize that wow the ACLU is sticking up for churches. Yeah right. Sorry, no dice."

Thank you for telling us that. On the other hand, you might want to tell us why the ACLU bothered filing an amicus brief in the US Supreme Court in the Lamb's Chapel case--on behalf of Lamb's Chapel--if they were so opposed to the 1st amendment's guarantees regarding religion that you apparently would like to believe.
7.24.2006 7:50am
Medis:
Here is the ACLU's amicus brief in Colorado v. Hill:

http://www.aclu.org/scotus/1999/22399lgl19991112.html
7.24.2006 7:54am
IB Bill (mail) (www):
Hmmm...fighting words, anyone? That's how I'd argue it for the state.


I'm with Robert Lyman. These are fighting words. Fred Phelps needs a smackdown.
7.24.2006 8:19am
Medis:
Under Cohen v. California, 403 U.S. 15 (1971), "fighting words" have to be directed to a particular individual and must be personally abusive. It is not enough that the words insult a group and are likely to provoke anger among members of that group. See Terminiello v. Chicago, 337 U.S. 1 (1949).

Further, under Gooding v. Wilson, 405 U.S. 518 (1972), and Lewis v. City of New Orleans, 408 U.S. 913 (1972), "fighting words" statutes cannot be overbroad such that they would include speech that would not constitute fighting words. Finally, under R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), a statute cannot regulate only some kinds of "fighting words" based on a content distinction.

The upshot is that "fighting words" is an extremely narrow and tricky exception to general First Amendment principles. The statute would have to address only fighting words as defined by the Supreme Court, but it would also have to address all fighting words (at least according to content). Clearly, the challenged statute does not pass these tests.
7.24.2006 9:04am
PQuincy (mail):
I find it symptomatic of our current predicament that so many posters in this thread assume that the ACLU's decision in this case was primarily a 'political' one (that is, having tactical or strategic intent with regards to a presumably 'left' partisan agenda), rather than considering that 'principle' might have something to do with it. Both on the left and the right, the mantra that 'everything is political' rules, nowadays...and even in libertarian circles, it seems. That's a shame, because 'everything is political', while trivially true, also devalues other alternative modes of action, including principle.

For the record, I was initially quite angry to hear the ACLU (of which I'm a member) had taken this case, thinking that 'time place and manner' might well justify a ban on protests outside funerals. But the thread here (aside from the relentless politicizing) is making me rethink that reaction. Thanks to the serious posters for that.
7.24.2006 9:07am
Hank:
In response to Traveler (the second posting above), the federal law applies only to "a demonstration on the property of a cemetery under the control of the National Cemetery Administration or on the property of Arlington National Cemetery." P.L. 109-228 (2006).
7.24.2006 9:21am
Medis:
PQuincy,

As an aside, I'm not sure it is true that the comments you are highlighting are representative of what people in "libertarian circles" typically think about the ACLU (and indeed, there are many people commenting here who probably would not describe themselves as libertarians). I'd actually hazard that most self-described libertarians may not always agree with the ACLU's positions, but usually that would be because the ACLU has not gone far enough in their view (e.g., I think some libertarians would suggest that the ACLU should interpret the Second Amendment as guaranteeing a set of personal rights and litigate accordingly).

But in any event, as we have discussed here before, it seems like the ACLU is a particularly important bete noire for certain types of people, such that they simply will not consider any evidence that contradicts their venomous assertions about the ACLU. Indeed, it seems to me one of the reasons some such people are highly resistant to any disconfirming evidence about the ACLU is that if their venomous assertions about the ACLU could be questioned, then perhaps so could some of their venomous assertions about the other groups they think are destroying America (which may include groups as various as "gay activists", "feminazis", generic "libruls" (phonetic spelling), and so on).
7.24.2006 9:27am
Hank:
Congress actually may have, for once, been overcautious in limiting the statute to federal cemeteries, as a good case can be made that, under its power to raise and support armies, it may regulate military funerals at non-federal cemeteries. In McKinley v. United States, 249 U.S. 397 (1919), the Court upheld a federal statute that directed the Secretary of War, "during the present war to do everything by him deemed necessary to suppress and prevent the keeping or setting up of houses of ill fame, brothels, or bawdy houses within such distance as he may deem needful of any military camp. ..." For something more recent, in Rumsfeld v. FAIR, 126 S. Ct. 1297 (2006), the Court upheld requiring colleges and universities that accept federal funds to allow military recruiters on campus, but, in dicta, it wrote that Congress could impose the access requirement directly; i.e., not as a condition of accepting federal funds. In addition, the Court almost always defers to statutes that govern the military. See Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981).
7.24.2006 9:32am
Medis:
Hank,

I think the Supreme Court would allow Congress to impose reasonable regulations on military funerals themselves. But regulations of protestors who are merely near military funderals are an entirely different matter.

McKinley, of course, isn't a free speech case. In FAIR, the Court specifically relied on the fact that the statute did not limit the ability of schools to protest and its holding that the forced inclusion of military recruiters was compelled speech. For example, it stated:

"The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while retaining eligibility for federal funds. See Tr. of Oral Arg. 25 (Solicitor General acknowledging that law schools 'could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests'). As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do--afford equal access to military recruiters--not what they may or may not say."

Similarly, in dealing with Dale the Court wrote:

"The Solomon Amendment has no similar effect on a law school's associational rights. Students and faculty are free to associate to voice their disapproval of the military's message; nothing about the statute affects the composition of the group by making group membership less desirable. The Solomon Amendment therefore does not violate a law school's First Amendment rights."

Obviously, an actual prohibition on protests would not satisfy these conditions in FAIR.
7.24.2006 9:52am
Medis:
Sorry--that should have been "was NOT compelled speech".
7.24.2006 9:53am
Steve:
Some of the comments in this thread ably demonstrate just how clownish much of the opposition to the ACLU is. It's "especially important" for liberals to preserve the right to protest the war at funerals? Please.
7.24.2006 10:06am
Hank:
Medis: I did not mean to imply anything about the First Amendment issue, but was addressing only Congress's authority to regulate the use of private property.
7.24.2006 10:09am
Medis:
Hank,

I'm not sure I follow. I agree Congress would have more power over the use of federal property, including federal cemeteries. I also agree Congress would have more power over military funerals themselves.

But I'm not sure why Congress would have more power over private property that was not federal property, even if a military funeral was being conducted on that property. Indeed, FAIR seems directly on point: even though Congress could require law schools to allow military recruiters on campus, the Court seemed to be suggesting Congress could not prohibit schools and students from protesting on campus at the same time.

Of course, insofar as a protest of a military funeral was actually on private property, the owner of the property could probably expell those people for his own reasons under Pruneyard (provided state law was not more protective than the U.S. Constitution). But I don't see why Congress would have the power to step into the shoes of such a private owner simply because a military funeral was being conducted on the property, and again I think FAIR suggests the Supreme Court would agree.
7.24.2006 10:26am
Medis:
By the way, this is off topic, but the APA Task Force on presidential signing statements has released its report and recommendations. I hope that Professor Adler (or someone else, but Professor Adler recently posted on this subject) creates a discussion on this topic.
7.24.2006 10:31am
Hank:
Medis,

When approaching a question of Congress's power under the Constitution, one should first ask whether that power is enumerated. If it is, then one should ask whether something in the Bill of Rights or elsewhere precludes its use in the particular instance. I was addressing only the first question. No one disputes that Congress would have "more" power over the use of federal property, as it has complete power. Art. IV, sec. 3, cl. 2. Its power to regulate private property usually comes from the Commerce Clause, but that would not help here. But the power to raise and support armies would. Personally, I find it disturbing that Congress could apparently trespass onto private campuses to recruit, but it apparently may, under its power to raise armies. Again, I am not addressing whether any particular use of this power would violate the First Amendment. I will say, however, that the federal law seems to be a time, place, and manner restriction, which increases its chances of being upheld.
7.24.2006 10:56am
IB Bill (mail) (www):
Medis: That hadn't been my understanding of fighting words, but I'm not a lawyer. I stand corrected. Thanks for the explanation.
7.24.2006 10:59am
Mackey:
I've been watching this one for a while now and have some thoughts....

First, I agree with a previous poster who found it odd that Phelps and WBC would enlist the ACLU. I assume that it's because 1) They're just so darn busy with those funeral protests; 2) The suit is filed in Missouri and they are likely not licensed to practice there or 3) Even Phelps has a sense of irony. Though 1 is true, they take the time to write lengthy legal letters, so.... 3 appears completely unwarranted by those materials; he clearly does not see how WBC has been radicalized, effecting marginalizing the religious message he promotes. So I've got to assume 2 is the winner.

There's also a fun game to be played with content, conduct and status. It may be content-neutral, but targetting for conduct (Church of the Lukumi Babalu Aye) or status (Romer! I like irony, too) is also potentially available. In both of those cases, the Court delved into the legislative history behind the laws to discern animosity. Church there may be an out that the law specifically "gerrymander[ed]" religious conduct while excusing all else. That might not fly here. But Romer could work--surely the religious receive as much solicitude as homosexuals? And maybe that explains what's in it for the ACLU, too.
7.24.2006 11:22am
OK Lawyer:
The ACLU, like any organization, has finite resources. I am sure that many deserving and needing cases come through their doors, only to be turned away because they simply can't spare the manpower. So, why choose this case? Either they actually believe they are fighting a good fight, they know this case will put them in the headlines again, and/or they understand/believe that the right to oppose the war is the higher good. Obviously, more reasons could exist and I think the answer is probably some combination.

For the "its all political" argument, I think the more correct phrase is "Everyone has an agenda," because everyone does.
7.24.2006 11:22am
Medis:
Hank,

I'm still not entirely sure I understand your claims, but I agree that Congress expanding the law in question to military funerals on private property would not pose an enumerated powers problem. Rather, it would raise possible First Amendment concerns, and my only point was that the mere fact that military funerals were involved would not waive those First Amendment issues. And I think we agree on that.

Incidentally, the law also deals with demonstrations near such cemeteries, so in that sense it is already subject to these concerns.
7.24.2006 11:36am
Medis:
OK Lawyer,

And, of course, maybe they believe that God is punishing the United States for its tolerance of homosexuality and so are protecting the right of people to say so.

But my bet is that given this particular case has in fact given rise to specific legislation at both the federal and state level, that is enough to explain why the ACLU would take the case.
7.24.2006 11:42am
Hank:
Medis,

I agree, but emphasize that the First Amendment applies even on federal property. Because of the public forum doctrine, results could differ in applying the First Amendment to public and private property, but on neither may the government engage in viewpoint-based discrimination.
7.24.2006 11:48am
Ken Arromdee:
One wonders if some on this board will ignore the ACLU's defense of speech--here, homophobic speech--as the ACLU's defense of a bigot's civil liberties surely challenges the black and white notion that the ACLU is a leftist hotbed of communists and terrorist-sympathisers.

First of all, the right has been pretty vocally opposed to Phelps. Support of Phelps isn't right-wing just because homophobia has been associated with the right. It's like when the ACLU supports the KKK--enough of the right doesn't like the KKK that they can hardly be said to be supporting a right-wing cause the same way supporting a mainstream church would be.

Second, even if supporting Phelps was right-wing, protests against soldiers are generally associated with the left. It is possible some left-wingers could see a commonality between funeral protests and other anti-soldier protests.
7.24.2006 12:02pm
thewagon:
I can't believe no one's stated the most obvious solution to the problem of these funeral protests: you take your coat off, get all your cousins and friends, and go remove the protestors from the area yourself. If they don't want to go, then you give them something to cry about, since they've added more tears to an already sorrowful time for your family... Then there's no messy issues of overstepping constitutional boundaries.
7.24.2006 12:03pm
Medis:
Hank,

But I suspect that under Greer v. Spock, the Court would hold that cemeteries under federal control were not public fora.

You are right, of course, that the government would still have to be viewpoint neutral, and so couldn't allow Pro-War demonstrations but not Anti-War demonstrations in Arlington. But the government need not be subject matter neutral in such a case, and so could ban all political demonstrations.

But I think off federal property, the question would be quite different.
7.24.2006 12:10pm
jota:
HLSberation--"Preserving the right to protest at military funerals is especially important to the left during a war they largely oppose, even if it must be won on behalf of religous bigots."

FC--"The Phelps gang are terrorist sympathisers."

These comments only further my point as to the knee-jerk disdain some on this board have for the ACLU. First, to argue that the ACLU defends abhorrent groups because they need to make sure that when the state comes a regulating them--those horrible leftwingers who hate america--in the context of anti-war they will have precedent to support seems to really be reaching for a reason to hate the ACLU. Rather, far more plausible reasons for this defense would seem to be a) that the ACLU supports an absolutist approach to speech, which means, yes, sometimes they defend neo-Nazi's and religious sects, and b) such an approach requires defending abhorrent speech, because when you start chipping away at the fringe, you tighten the center, weakening free speech rights related to things we find mundane. Free speech is good, remember?

As for FC's comments on the Phelps gang. How do you make the logical leap from protesting funerals in this context to hating our troops? Does that mean when I criticize the Iraq war, I'm hating our troops? Or if you protest a visit by the president to your town, you hate our trips? Can you point to anything where the Phelps people indicate that their bigotry is only a facade for their real agenda, aiding Al Queda? I wonder if you'd be as adamant about your position if the Phelps gang was "merely" protesting a gay person's funeral, without any military element.
7.24.2006 12:12pm
Thorley Winston (mail) (www):
Hmmm...fighting words, anyone? That's how I'd argue it for the state.


Seems more like a case of time, place, and manner restrictions. No one’s forbidding this or any other group from protesting, they’re simply saying that you cannot do it within 300 feet of cemetery (place) within an hour of a funeral (time). The regulation is content-neutral (e.g. makes no distinction between pro or anti-military protesters) and enacted for a valid public purpose of trying to prevent funeral disruptions.
7.24.2006 12:16pm
Joel B. (mail):
Earlier, someone had made the point that:

One wonders if some on this board will ignore the ACLU's defense of speech--here, homophobic speech--as the ACLU's defense of a bigot's civil liberties surely challenges the black and white notion that the ACLU is a leftist hotbed of communists and terrorist-sympathisers.

I was responding to that comment saying that, the ACLU sticking up for this group is not going to be a reason for people to change their opinion of the ACLU. I readily grant that there are cases where the ACLU comes to the defense of churches. I find these to be outnumbered by the times the ACLU opposes churches, and more commonly, supports restrictions on the demonstrations of the majority in celebrating their religion.

To expect this case to change opinions was what I was scoffing at, which I think is wholly reasonable. To cite this as a case where "See the ACLU supports church and homophobic speech, offends the defends of church, and denigrates honest discourse on issues like gay marriage through standing up for genuinely homophobic speech.
7.24.2006 12:22pm
Robert Lyman (mail):
Medis,

Thank you for your cites.

I think there's a plausible claim that Phelp's speech is directed at particular people (the family of the decedant) but you're right that the law is overbroad. But I also think that "your son deserved it" goes beyond merely insulting or provoking anger and into personally abusive territory. Certainly it goes into "reasonable man is likely to fight" territory.

I presume this case is in Federal court, but if not the state court can offer a narrowing construction which would save the statute as a whole. The state need not be content neutral between "Your mother is wonderful" and "your mother is a whore."

Frankly, though, I find it ridiculous to be engaged in legalistic hair-splitting over a guy who deserves to be pounded into the ground by enraged veterans on both substantive (his message) and procedural (his choice of forum) grounds. I thought the point of protecting extremists was to be sure the more normal people wouldn't have their speech limited. McConnell v. FEC, 540 U.S. 93 that rationale doesn't seem to apply.
7.24.2006 12:23pm
Steve:
As for FC's comments on the Phelps gang. How do you make the logical leap from protesting funerals in this context to hating our troops?

Well, I mean, these protestors are saying that the soldiers deserved to die because America condones homosexuality, that IED's which kill our soldiers are instruments of God's will. There's a shade of difference between that and cheering for the other side, but it's not much of a difference. Even if they don't really care much about al-Qaeda, they certainly seem to hate the troops (and America, for that matter).
7.24.2006 12:24pm
Justin (mail):
"was responding to that comment saying that, the ACLU sticking up for this group is not going to be a reason for people to change their opinion of the ACLU. I readily grant that there are cases where the ACLU comes to the defense of churches. I find these to be outnumbered by the times the ACLU opposes churches, and more commonly, supports restrictions on the demonstrations of the majority in celebrating their religion."

Maybe that tells you something about, I dunno - Churches, and their desire to intertwine with the government, along with their occasional desire to suppress contrary speech - rather than, say, the ACLU.

After all, you never see Churches standing up for the rights of those it suppoesdly opposes. So why do you hold the ACLU to a required quantitative equivalence - particularly in a country where Christianity is by far the most dominant religion and can protect its interests through the use of the democratic process.
7.24.2006 12:29pm
HLSbertarian (mail):
jota:

Here's how you quoted me:


HLSberation—"Preserving the right to protest at military funerals is especially important to the left during a war they largely oppose, even if it must be won on behalf of religous bigots."


Here's what I said:


jota: I for one have largely written off the ACLU an increasingly leftist organization. I still think there's plenty of evidence to back that up, but this story is a surprising strike against the grain, and like you I hope it won't be ignored.

I'm not this cynical, but one might argue that preserving the right to protest at military funerals is especially important to the left during a war they largely oppose, even if it must be won on behalf of religous bigots. Of course, that just plays into the larger point that content-based restrictions are a danger to everyone because the shoe very often and very quickly finds itself on the other foot.



As I hope you can see, I was agreeing with you that this recent story is welcome evidence that the ACLU still takes an absolutist approach to free speech cases. Let me reiterate that: agreeing with you.

What I also said was that the people you had previously described who are unwilling to view evidence of the ACLU's action on behalf of non-leftist causes could find leftist political motivations here. I personally don't see it that way.

Steve: I believe you took my words out of context the same way.
7.24.2006 12:29pm
Hank:
Thorley Winston:

You're right that the federal law is a time, place, and manner restriction, but that doesn't mean that the government is home free, as time, place, and manner restrictions must still be narrowly tailored (although they need not be the least restrictive means). As for time, one hour on either side of the funeral seems needlessly long, and, as for place, what does "within 150 feet of a road, pathway, or other route of ingress to or egress from such cemetery property" mean? What if the cemetery is by the side of a road that runs for miles?
7.24.2006 12:31pm
Robert Lyman (mail):
when you start chipping away at the fringe, you tighten the center

Bingo: the classic rationale. But as I said, McCain-Feingold has now attacked the center, restricting criticism of the government, but leaving "virtual" child pornographers protected.

If my friends and I can run a TV ad saying "This senator does not deserve to be reelected," I can't find any justification for not making Phelps stay away from grieving families. Let him protest all he wants when they've gone home.
7.24.2006 12:32pm
Robert Lyman (mail):
That should be "CAN'T run a TV ad" Sorry.
7.24.2006 12:34pm
Justin (mail):
The primary argument, though I'm not sure I agree with it, that the law is content-based and therefore not subject to TPM review but instead the strictiest scrutiny, is that it assigns to the funeral holder the right to determine what speech they do and do not like, on public property, based specifically on content. Even a facially neutral act that

a) is intended to, and in fact does, hold a bias against a particular content

or

b) delegates the right to others to others to discriminate based on speech.

The secondary argument against the law is that it is unconstitutionally vague, since it fails to define what a protest would be - certainly if a civil rights leader dies and has a public funeral, those marching in favor of "carrying out his legacy" wouldn't be violating the law, right?

This second argument should fail at an initial level - at least until the Supreme Court of Missouri is permitted to give the statute a specific enough definition. The primary argument is theoretically sound, but in reality I don't think judges, who have the practical ability to see the common sense boundaries of such a law, will agree unless enforcement starts to become arbitrary.
7.24.2006 12:36pm
Steve:
Steve: I believe you took my words out of context the same way.

I'm not sure I even read your words. But yeah, once you accept the absurd belief that liberals are rooting for al-Qaeda, you're pretty much open to believing that anyone is rooting for al-Qaeda.
7.24.2006 12:36pm
Justin (mail):
HLSLiberterian, in fairness, I can easily see how your statement could be honestly misconstrued. After reading the first paragraph again, I can't see whether you

1) Before now thought the ACLU's support of 1st amendment protections against the government was a farce to protect only "leftist" interests, but now are given second thoughts

2) Have rejected the argument made by "rightists" in (1), and hope this will change their mind.

3) Agree with the argument made by "rightists" in (1), and this does little to change their mind, but is still a good thing as a whole.

Also, in internet land, where people don't "know" you and can vouch for the fact that you're only playing devil's advocate, you'll often find, fair or not, that even an express disclaimer that you are so doing will not be accepted at face value. The problem with anonymity is that credibility is often an important part of public debate.
7.24.2006 12:40pm
Justin (mail):
whoops - after describing (1) and (2) in my substantive analysis part, I should have mentioned that either of those being found will render the law content based and almost guarantee its failure.
7.24.2006 12:42pm
Steveo987 (mail):
Since some posters are so sure that lefties are protesting military funerals, I'd like to see some links to examples of that in recent history.
7.24.2006 12:47pm
Third Party Beneficiary (mail):
"The regulation is content-neutral (e.g. makes no distinction between pro or anti-military protesters)"

The way you've phrased this shows that the law is not content neutral. What on earth would a "pro-military protest" at an official military funeral be?
7.24.2006 12:54pm
Daniel Chapman (mail):
Whenever they leave a topic up for a long time without posting anything new, I always wonder if it's some sort of experiment to see how long we'll keep jabbering on about a subject long after we've run out of intelligent things to say.
7.24.2006 1:00pm
Hank:
The statute speaks of "demonstrations," not "protesters," and there obviously can be pro-military demonstrations at military funerals.
7.24.2006 1:01pm
Thorley Winston (mail) (www):
The way you've phrased this shows that the law is not content neutral. What on earth would a "pro-military protest" at an official military funeral be?


Actually it still be content-neutral in that the law applies the same regardless of the content of the speech. That people who support the military tend to have the common decency not to hold rallies during a funeral service is irrelevant.
7.24.2006 1:07pm
HLSbertarian (mail):
Steve said:


Steve: I believe you took my words out of context the same way.

I'm not sure I even read your words. But yeah, once you accept the absurd belief that liberals are rooting for al-Qaeda, you're pretty much open to believing that anyone is rooting for al-Qaeda.



Steve, you quoted my words in your original post, so I hope you did indeed read them. And I'd really like to know where I (a) asserted that liberals are "rooting for al-Qaeda" and/or (b) adopted as my own all the position you associate with the right. Thanks.
7.24.2006 1:10pm
HLSbertarian (mail):
Justin: My point was only that my personal observations (what I've gleaned from various sources, not an empirical case count) have led me to believe that the ACLU has been steadily becoming a more partisan-left organization. This case pleasantly cuts against that grain.

On the credibility point, I'm not sure I agree. People who don't know me SHOULD take disclaimers at face value instead of expressly snipping them out when quoting me. I think we should all (myself included) be a little slower to ascribe all of the extreme viewpoints of the left or the right to a commenter once we know just a little bit about his political leanings.
7.24.2006 1:20pm
Steve:
Steve, you quoted my words in your original post, so I hope you did indeed read them.

I quoted jota's words. I don't believe I quoted your words.

And I'd really like to know where I (a) asserted that liberals are "rooting for al-Qaeda" and/or (b) adopted as my own all the position you associate with the right. Thanks.

I never said you did any of these things. I understood your argument to be that "although I personally wouldn't go this far, some people who think that liberals root for al-Qaeda might think that it would be especially important to liberals to preserve the right to protest at military funerals."

My use of the word "yeah" was intended to indicate agreement with your devil's-advocate statement, as well as to state how silly I think such an argument would be. You would have to have a pretty far-out caricature of the Left in your head to believe they are all psyched to protest at military funerals. But indeed, a lot of people who reflexively oppose the ACLU do seem to have such a caricature at hand.
7.24.2006 1:34pm
IB Bill (mail) (www):
Whenever they leave a topic up for a long time without posting anything new, I always wonder if it's some sort of experiment to see how long we'll keep jabbering on about a subject long after we've run out of intelligent things to say.

Well, that was a pretty intelligent thing to say.
7.24.2006 1:50pm
Porkchop (mail):

What on earth would a "pro-military protest" at an official military funeral be?

It consists of large numbers of people parking Harley-Davidson motorcycles between the WBC protestors and the funeral procession, holding large American flags to block the WBC's view, and gunning their engines (respectfully, of course) when the WBC's start to chant. A number of bereaved families have expressed their appreciation to the motorcyclists (many of whom are also involved in Operation Rolling Thunder on Memorial Day in DC). Problem solved through free speech by private actors in the marketplace of ideas.
7.24.2006 1:57pm
Robert Lyman (mail):
You would have to have a pretty far-out caricature of the Left in your head to believe they are all psyched to protest at military funerals.

Well, there were lefty anti-war types protesting at Walter Reed for a while. Not exactly the same thing, but not too far away, either. I certainly hope they don't represent the majority of the "Left," though.
7.24.2006 2:01pm
phosphorious (mail):
Steve wrote:
Well, I mean, these protestors are saying that the soldiers deserved to die because America condones homosexuality, that IED's which kill our soldiers are instruments of God's will. There's a shade of difference between that and cheering for the other side, but it's not much of a difference. Even if they don't really care much about al-Qaeda, they certainly seem to hate the troops (and America, for that matter).

By that measure, what Jerry Falwell said immediately after 9/11 is "siding with the terrorists", and Falwell is safely a right-wing figure.

There is really only a difference in emphasis between Phelps and Falwell
7.24.2006 2:10pm
Medis:
Just to be clear about something, the federal law applies to "demonstrations" with a pretty broad definition of that term. I think it would certainly include pro-war demonstrations (whether the statute as enforced would be applied to pro-war demonstrations is a different matter).

The Missouri law, in contrast, applies only to "picketing or other protest activities". Unless there is more to the statutory definition, that may prove fatal insofar as it represents viewpoint discrimination.
7.24.2006 2:13pm
Robert Lyman (mail):
Medis,

Be clearer: "picketing or other protest activities" is viewpoint neutral but not content neutral. They don't care if you're pro- or anti-war, abortion, gun rights, whatever, but they do care if you're staging a protest as opposed to, say, wearing a "discount mattresses" sandwich board.
7.24.2006 2:17pm
Medis:
phosphorious,

You have to understand that the Right is made up of individuals, whereas the Left is a hive-mind. Of course, if you, say, criticize the war, the current President, or America in any way (America, of course, being defined as exclusive of Democrats, Liberals, gay people, Hollywood, New York City except during and immediately after terrorist attacks, and so forth), clearly you are not on the Right and are rather part of the Lefty hive-mind.

It all makes perfect sense. The apparent chaos of views on the Left is just cover for the hive-mind. The lock-step views required for membership in the Right these days is simply the product of all these individuals reaching the same conclusions on the merits.
7.24.2006 2:24pm
Medis:
Robert,

I think that is wrong. If it was "political demonstrations", then it might be viewpoint neutral. But "protests" implies, at least to me, a point of view.
7.24.2006 2:27pm
Steveo987 (mail):
Would the federal law (banning all "demonstrations," so as to be viewpoint neutral) be susceptible to attack for overbreadth? That is, can the federal government constitutionally ban pro-war (or pro-military family) demonstrations in a public forum, even as a time, place or manner restriction? Is protecting families' solitude, even from supportive demonstrations, an important government interest?
7.24.2006 2:34pm
DCP:
I really don't see any way in which this statute could be struck down. It seems to be facially valid and purposefully drafted to carefully align with existing precedent on time/place/manner restrictions that courts have upheld.

Even if we assume it is a borderline case under scrutiny, please show me the judge(s) that has the balls to uphold what the Phelps clan is doing.

I think this case illustrates just how far the ACLU is willing to go in order to fight any limitation on speech. I imagine they would rush to the legal aid of someone cited for yelling "fire" in a crowded theatre if given the chance.

I'm an advocate of free speech, but this case represents the fringe for which exceptions have always existed.

1. Traditional societal controls (ie, those not enforced by the state) are completely irrelevant here. We are dealing with 20 complete nutjobs who could care less what anyone else thinks about them. Unlike other examples where you could say, it's better to let society condemn them and tarnish their reputations and destroy their financial interests. This is not a "movement" in the sense that the KKK, abortion protesters, communists, etc.. are. This is 20 insane people.

2. A funeral, like a wedding, is a unique solemn occaision. It's not an everyday occurance like walking through the park or visiting some government building. We only get one funeral, and they should be given special reverence.

Speaking of weddings, it was be interesting to see if the same rationale would apply to the Phelps clan if they decided to start protesting gay weddings in MA. Would the ACLU defend that conduct/speech just as vigourously? Would the people who have defended the ACLU's position here do the same? Hmmmm.

I just thought it was an interesting parallel. In both cases you have a unique, private, solemn ceremony that is being completely ruined by a tiny fringe group of absolute nutjobs. The distinction is that one ceremony is seemingly dear to the right (burials for fallen soildiers) and one is dear to the left (gay marriage).
7.24.2006 2:38pm
Mackey:
Just to be clear... there are pro-military (or anti-Phelps) protesters...an outfit called 'the Liberty Riders' if I'm not mistaken. Of course, no one really even mentioned them in the legislative history of the federal act I've seen.
7.24.2006 2:40pm
Allen Asch (mail) (www):
Joel B wrote:

I readily grant that there are cases where the ACLU comes to the defense of churches. I find these to be outnumbered by the times the ACLU opposes churches
Really? I just gave you dozens of examples of the ACLU defending the rights of Christians to speak as Christians and practice Christianity, including many lawsuits in which the ACLU defended churches.

Where are the lawsuits where the ACLU "opposes churches?" The only one I can think of involves an ACLU suit aginst Salt Lake City which the LDS Church asked to join. And, in that case, the ACLU is actually defending the free speech rights of other Christians.

The big lie is that the ACLU opposes religion and/or Christianity. In fact, the ACLU fights just as hard for the free exercise of religion, including Christianity, as the ACLU fights against government endorsement, sponsorship, and Establishment of religion. As proof:

Can anyone provide a case of the ACLU supposedly opposing religion that did not involve GOVERNMENT religion?
7.24.2006 2:40pm
Steveo987 (mail):
IIRC, the Phelps clan has protested gay marriage ceremonies. The difference is, no legislature cares enough/is indifferent to free speech enough to criminalize that behavior. I'd bet a buck that the ACLU would step in to fight that law if it ever gets passed. Of course, that won't stop people from putting up strawmen easily debunked by the ACLU's past activities.
7.24.2006 2:42pm
Robert Lyman (mail):
But "protests" implies, at least to me, a point of view.

Really? Which one? Left or right? Got any cases that say "Democrats protest, Republicans demonstrate" or something like that?

I suppose you could say that a "protest" must be against the prevailing order, while a "demonstration" might concievably be in support of it. But I read those two words as meaning the same thing: a bunch of people waving signs on a street corner.

can the federal government constitutionally ban pro-war (or pro-military family) demonstrations in a public forum

I see no reason why pro-war demonstrations couldn't be banned on the same terms as anti-war, and to fail to do so would violate viewpoint neutrality.

The difference being that people who wanted to gather at a funeral to support the troops and their families would probably respect a polite request from the family to stay away.
7.24.2006 2:46pm
HLSbertarian (mail):
Steve: Fair enough (they were my words, but that's neither here or there now). I'm sorry I misread your post. I do believe there is some merit to believing the ACLU has drifted to the left politically. But clearly, as has been noted above, there's plenty of evidence the other way, at least on the religious front.
7.24.2006 2:50pm
Lakhim (mail):
HLSbertarian:

They most likely have drifted to the left, if only because they oppose the policies of the government (almost by definition) and as such will take stances against the government. If the government happens to be right-wing (which it by and large has been for the last decade), then any reaction against it will appear to be from the left. It is not fair, however, to accuse the ACLU of being an exclusively leftist organization as they do not discriminate against right-wing causes, as shown by their defense in this case and in others.
7.24.2006 2:54pm
Joel B. (mail):
Wow Allen...I've never been so well Dowdified before the full quote was (for any who care)

I find these to be outnumbered by the times the ACLU opposes churches, and more commonly, supports restrictions on the demonstrations of the majority in celebrating their religion.

I even noted that the main complaint I have is supporting restrictions on the on the demonstration of the majority in celebrating their religion. I very much like how that part was just accidently cut off. You don't seem to argue that point, desiring to limit me to the first.
7.24.2006 2:55pm
Lakhim (mail):
Joel:

I believe he is asking for examples when the worship is not taking place in a government setting, ie, not in a school or a courthouse.
7.24.2006 3:00pm
Steveo987 (mail):
I see no reason why pro-war demonstrations couldn't be banned on the same terms as anti-war, and to fail to do so would violate viewpoint neutrality.

The reason would be because the non-offensive/disruptive speech (the pro-family demonstration) is constitutionally protected. Generally, you can't make an impermissible speech restriction constitutional by banning more speech, some of which is perfectly acceptable and constitutinally protected, just to make the law viewpoint neutral. Are you not familiar with the overbreadth restriction? Could someone who knows more about it than I educate me on the arguments for and against challenging the federal "demonstration" law on overbreadth grounds?
7.24.2006 3:05pm
Robert Lyman (mail):
It is not fair, however, to accuse the ACLU of being an exclusively leftist organization

No, not exclusively. But their vigorous advocacy of abortion, gay marriage, affirmative action, illegal immigration, and opposition to the death penalty and gun rights all predate Bush, does it not?

I mean, just visit their website and I think you'll find them easy to distinguish from the Heritage Foundation. It may be ridiculous to reflexively oppose them or call them communists, but it's also ridiculous to pretend they don't heavily favor the left-wing point of view.
7.24.2006 3:09pm
Allen Asch (mail) (www):
Joel B,

I responded to your whole post; sorry if I did not requote enough of it to satisfy you. You did not respond to any of my post, however, never mind requoting it. I did not requote the part of your comment about "restrictions on the on the demonstration of the majority in celebrating their religion" because, as I did point out in my response, when the case involves government religion, the ACLU will take the anti-majoritarian position. As I also pointed out in my response, however, the determining factor is not whether it's majority religion, but whether it's government religion. On that point, I notice you have no response to my question:

Can anyone provide a case of the ACLU supposedly opposing religion that did not involve GOVERNMENT religion?

What I did quote from your post was the statement that seemed most extraordinary: your claim that the ACLU "opposes churches." I notice you have no response to my question:

Where are the lawsuits where the ACLU "opposes churches?"
7.24.2006 3:17pm
Lakhim (mail):
Lyman:

All of their policies are in opposition to current government policies, again as I have pointed out. The fact the opposition to the government makes them left wing is entirely incidental and not a reflection of some massive conspiracy on the behalf of left-wingers to take control of the ACLU.
7.24.2006 3:48pm
DCP:
I don't think the ACLU would advocate a position that encroaches on any rights, regardless of how distatseful they may find them.

I think a better way to analize the situation is to look at their inaction as opposed to their action.

I'm not an expert in this area but it appears to me that they seem to be a little more selective in defending free exercise claims as compared to the vigorousity they deploy in establishment clause cases. I think that illustrates a preference at the least.

Again, I'm not an expert, but have they offered counsel or services to devout Mormons who have been arrested for cohabitating with multiple partners (polygamy) and defended themselves with the argument that their religion compels such lifestyles (to say nothing of the argument of keeping the government out of our bedrooms in general)?

Have they advocated for people whose religious beliefs compel animal sacrifice? Or snakehandling? Or refusing medical treatment for themselves and their children?

And their silence on 2nd amendment issues is even more deafening. The last time I checked the right to bear arms was a pretty important civil liberty. Important enough to rank second in the Bill of Rights and be given a pretty solidly worded foundation by the Framers.
7.24.2006 4:04pm
Medis:
Robert,

I admit I don't entirely understand your post to me (I have no idea where the stuff about Democrats protesting and Republicans demonstrating came from).

But I would construe the Missouri statute as referring to a protest with respect to the funeral. In that sense, they could be protesting a lot of different things--the war, honoring the military dead, honoring the dead in general, alleged violations of the First Amendment arising out of military chaplains, and so on. But they would have to be protesting something like that.

Interestingly, on those grounds I'm not sure the Missouri statute could be applied if the protest was unrelated to the funeral, and just happened to be in the wrong place at the wrong time. I'd actually suggest applying the statute in that way would be a due process violation for failure to provide adequate notice of the prohibited activity. So, for example, I'm not sure Missouri could apply this statute to people picketing a church because of its unfair employment practices, even if their protest happened to occur during a military funeral.

Similarly, I think a person who merely demonstrated in support of the war, and did not protest the funeral in any way, would likely have a valid due process argument if the state attempted to characterize that demonstration as a protest within the meaning of the statute. This is actually an independent point: even if protests unrelated to the funeral were covered, I don't think they have fair notice that supportive demonstrations would be covered.

Finally, for the purposes of analyzing this law we do not actually need to resolve this issue. If reasonable people can't agree on whether this law would apply to all protests, nor to various demonstrations which may or may not be protests, then it is unconstitutionally vague.
7.24.2006 4:04pm
HLSbertarian (mail):
Lakhim: I'm not seeing your argument here. First of all, a lot of what the ACLU does concerns local laws and regulations, not federal measure enacted by what you call a decade's worth of Republican dominance.

More importantly, the ACLU opposing the policies of a Republican government hardly proves the point. You seem to claim that it only appears that they lean left because they oppose Republican policies. I'd say that's pretty strong evidence of actually leaning left.

You seem to back your point up with a general statement that the ACLU "oppose[s] the policies of the government (almost by definition)." I don't see how that works. It can be argued that civil liberties are usually won in favor of the individual against government control. But this hardly means that any government action by any incumbent government is by definition against civil liberties. That would be silly.

If we suddenly had a Democrat majority in Congress and a Democrat in the White House, would the ACLU suddenly start opposing affirmative action because the new government supports it and the ACLU must "oppose the policies of the government (by definition)"?

I believe it's far more plausible to say the following: The ACLU's positions, to varying extents, are drawn from certain principles. In the last 10-15 years, at least, some believe that the ACLU has drifted away from some of those principles and toward a left-oriented political agenda, as evidenced by both it's case selection and substantive stances.

We can certainly argue about whether the evidence backs up those claims - I'm not convinced that it does. But your "by definition" argument doesn't make much sense to me.
7.24.2006 4:12pm
Medis:
Sorry, it appears the Missouri statute is not limited to military funerals, so the range of protests is wider than I implied. But I would nonetheless construe the statute as applying to protests connected to the funeral (which could vary quite a bit from funeral to funeral--one could imagine anti-Microsoft protests at Bill Gates' funeral), and not merely coincident with the funeral.
7.24.2006 4:14pm
Medis:
"You seem to claim that it only appears that they lean left because they oppose Republican policies. I'd say that's pretty strong evidence of actually leaning left."

Yikes. I've said myself that these days, words like "liberal", "conservative", "Left", "Right", and so on have become merely tokens of partisan alliances, but rarely is that idea stated so baldly.
7.24.2006 4:18pm
HLSbertarian (mail):
DCP: I think that's a good point. If you're looking to fault the ACLU for political leanings, I think their case selection is easier to fault than their substantive stances. (Of course, there are arguments to be made that their stances on affirmative action and gun rights don't jive with the rest of their philosophy, but I can see both sides of that argument.)

Another problem is that so many factors go into case selection for a group that's trying to change the law, not the least of which is the susceptibility of a particular law to change. The case selection patterns you're describing might be telling, but hardly damning.
7.24.2006 4:19pm
Per Son:
DCP:

Do not think that the order connotes importance. Indeed, as originally proposed our 1st and 2nd would have been the third and fourth.

As for guns - the National ACLU is neutral (does not chose collective vs. individual), and lets state chapters chose a position.

As for withholding medicine - the ACLU takes a stance that there is a line between religious freedom and risking the lives of others. The ACLU's position is that the parents right to practice a religion ends when it puts a child's life at risk. Keep in mind that children have rights apart from their parents.


As for animal sacrifice - Church of Lukumi Babalu Aye v. City of Hialeah. The ACLU won a 9-0 opinion on behalf of Santeria practitioners.
7.24.2006 4:19pm
HLSbertarian (mail):
Medis: I was merely using Lakhim's language. He mentioned the "left" and the government that "happens to be right-wing." I thought Republican was an acceptable proxy for "right-wing" where he was specifically talking about current control of the federal government.

Your point is well taken, but I'd say that even if "liberal" and "conservative" are still recoverable as terms of meaning, "left" and "right" are surely past the point of no return.
7.24.2006 4:25pm
Robert Lyman (mail):
Medis,

I now see what you mean by "protest" having a viewpoint. I took you to be saying the word "protest" by itself implies a viewpoint, which makes no sense to me. But if you define "protest" as "opposing something about the funeral," then you are right that it is not viewpoint neutral.

But by that definition, Phelps isn't covered by the law, is he? He's not opposed to funerals, he's opposed to gays. Unless the dead soldier is gay, he's not "protesting" by your definition, is he? He's just wandering by like the union picketers.

Lakhim,

You could do me the courtesy of reading my post where I point out that many of the ACLU's positions predate Bush.

Clinton: pro choice
ACLU under Clinton: pro choice

Clinton: anti-gun
ACLU under Clinton: anti-gun

Clinton: pro-affirmative action
ACLU under Clinton: pro-affirmative action

I don't know what Clinton thought of gay marriage, illegal immigration didn't come up as much, and he wasn't a big opponent of the death penalty, so the ACLU opposed him there, I guess.
7.24.2006 4:26pm
Medis:
Robert,

Sorry for the confusion. People, including me, tend to use jargon and shorthand in these conversations.

Anyway, I agree--I'm not entirely sure whether Phelps was given fair notice by the Missouri statute. I'd personally say that holding aside the First Amendment, it is not a strong argument: I think a reasonable construction of the statute would only require a substantial connection between the protest and the funeral (eg, as in my Microsoft/Gates example).

So, as I understand them, Phelps's protests would count insofar as his protests are in fact based on the fact that it is a military funeral. In other words, he is not just coincidentally making his points about gay people while a military funeral is going on. Rather, he is specifically trying to communicate the message that the death of the person in question was God's retribution for our society's tolerance of homosexuality. I'd say that provides the necessary connection.

Again, though, these questions in a First Amendment context suggest a serious vagueness issue.
7.24.2006 4:42pm
Lakhim (mail):
Lyman:
Confusing Clinton with the Republican majority in congress is a mistake. Confusing clinton with a republican majority around the nation (liberals don't tend to infringe upon constitutional rights- at least not with the visability of republicans) is another.

No, what I said was that the ACLU mostly takes the minority view on issues. If it desides to sue the government it by definition is taking a stance that is opposite the government. That's it. If a liberal administration begins to, say, demand racial quotas, the ACLU will be on the front lines against it (thus, taking a right wing position). It won't magically cause a reversal in their positions that they already believe to be (and have been held to be) constitutional, but there is no special protection from the ACLU given to a left-wing administration (or left-wing actions, etc), as seen by the ACLU's spirited defense of the rights to protest and various other issues.
7.24.2006 4:48pm
Robert Lyman (mail):
If a liberal administration begins to, say, demand racial quotas, the ACLU will be on the front lines against it

Yes, just like they opposed Clinton's re-interpretation of Title IX to require rigid gender quotas in college athletics. They've sure been out in front on that one.

In all seriousness, I greatly doubt they'd oppose racial quotas. And of course the very fact that they think AA is constitutional at all (many of us disagree with SCOTUS on that) is a left-wing position. Ditto for support for abortion, belief that the constitution compels gay marriage, opposing the 1996 welfare reform, etc. Left, left, and left. A right-wing civil liberties organization would do none of those things.

It is probably true that they don't offer special protection to left-wing administrations, but that doesn't mean they don't take a whole bunch of left-wing positions.
7.24.2006 5:11pm
Thorley Winston (mail) (www):
It is probably true that they don't offer special protection to left-wing administrations, but that doesn't mean they don't take a whole bunch of left-wing positions.


Agreed, it’s the difference between attacking a Democratic administration from the right because you think it’s too liberal versus attacking it from the left because you think it’s not liberal enough.
7.24.2006 6:23pm
anonyomousss (mail):
i'm left-wing and agree with the aclu on most (though not all) issues, including the establishment clause issues for which it is most frequently criticized. i think the aclu is a left-wing organization in the sense that when there are competing right-wing and left-wing legal theories, the aclu tends to pick the left-wing one. i do not, however, think that the aclu selectively decides that the constitutional rights protect people or groups only when the person or group in question is left-wing, which is different.
7.24.2006 6:39pm
Robert Lyman (mail):
i do not, however, think that the aclu selectively decides that the constitutional rights protect people or groups only when the person or group in question is left-wing, which is different.

I agree entirely. Put it this way: they'll defend a right-winger's choice to have an abortion, and they won't defend a pro-left/anti-right speech code (I hope!). So they are indeed principled in their left-wingery.
7.24.2006 6:46pm
Medis:
It never ceases to amaze me that people really seem to think that the entire multidimensional field of political, legal, practical, and moral issues implicated by as something as complex as just the First Amendment, let alone the entire universe of civil rights, can be divided neatly into two boxes: Left and Right.
7.24.2006 7:19pm
Robert Lyman (mail):
Medis,

"The universe of civil rights" can't, of course be so neatly divided, especially the 1st Amendment. But AA, abortion, death penalty, gun rights, gay marriage...they do divide reasonably neatly (although not perfectly) in to left and right.

I agree with you that labels have limits, but they also have utility.
7.24.2006 9:11pm
Medis:
Robert,

I don't think even that much is right. For example, plenty of people (particularly but not exclusively Catholics) are anti-abortion and anti-execution. There are in fact conservatives (small "c") who emphasize the marriage part of gay marriage, and thus are for it, and radicals who also emphasize the marriage part of gay marriage, and thus are against it. And I'm sure there is a sizeable number of people hanging around this very blog who are pro-choice and pro-gay marriage, but also pro-gun-rights.

And I don't think that these people are mere imperfections in the Right-Left order. Rather, they represent perfectly consistent and principled worldviews, and I think we can learn about the hopelessness of any such one-dimensional classification system by thinking about how these various people are able to reach their particular mix of views.

That said, I agree that these labels have a utility of sorts. Most notably, they are useful for the professional politicians and pundits whose job security depends on the popular acceptance of a simplistic Us-versus-Them mentality (with "Us" and "Them" being defined by the characteristics of your gerrymandered district, or perhaps whose books get in the front window of your local Barnes &Noble).
7.24.2006 10:09pm
Robert Lyman (mail):
Medis,

As one of your small-c conservatives who is very skeptical about the death penalty (big government in action, after all), generally supportive of gay marriage, highly conflicted about abortion, anti-welfare and Social Security but pro-free daycare for single mothers, strongly pro-gun, and who knows what else, I suppose you could make me your poster child.

I don't regard myself as an "imperfection" in the left-right order, but I have no hesitation with putting myself on the right, broadly speaking. I have relatively little in common with, say, Barney Frank (except a dislike of ag subsidies).

And for that matter, I have relatively little in common with the ACLU outside of free speech.
7.24.2006 10:24pm
Medis:
Based on that description, it seems to me there are many on the self-described Right with whom you have relatively little in common as well.

So why not:

c) None of the above.
7.24.2006 10:48pm
Robert Lyman (mail):
Well, that is how I'm tempted to vote a lot of the time...
7.24.2006 10:59pm
Gary In Missouri (mail):
Why is there even a discussion on this in legal termonology?
It was said nicely here:
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Opinions
Funeral not the time to protest
By Chris Wrinkle
May 22, 2006



A soldier from Missouri who originally was from Lebanon was buried last week in a rural Laclede County cemetery.

Pfc. Alva L. Gaylord, 25, of Carrolton, was killed performing his sworn duty as a soldier —fighting the war on terror in Iraq.

His family deserves our thanks and gratitude. And they deserve the space, time and freedom to grieve, without having to worry about protests.

However, that wasn’t the case last week. As Alva Gaylord was laid to rest in Flatwoods Cemetery, the fear that hung in the air was that their ceremony honoring the fallen soldier would be disrupted by protests.

There were Missouri State Highway Patrol troopers on hand to keep the peace, as well as another group — the Patriot Guard Riders — who escorted Gaylord’s funeral procession from Carrolton.

We’re all for free expression.

The First Amendment guarantees us the right to express ourselves, no matter the topic, no matter the consequence.

But it also seems that another rule applies— one that is taught in most high school civics classes. It’s the “wave your arms as much as you want” theory.

Talk the talk, walk the walk and flail your arms as much as you want, just don’t hit anybody when you do.

We think that any protesting that might have been done at Thursday’s funeral would have violated that unwritten rule, not to mention the recently passed state law banning protests less than 300 feet from a funeral less than one hour from the start of the event.

No matter what side of the fence you’re on in this war, there is plenty of room for opinion. But there also is plenty of room for common sense.

Sadly, it seems that we need to remind ourselves that some things are more important than expressing our views.

Allowing the family of a fallen soldier the time to grieve is one.

© Copyright 2006 by LebanonDailyRecord.com

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If my father or sister died for this country and I was burying them and someone had a sign protesting that said “Thank God for IEDs,” the improvised explosive devices, or homemade bombs, that kill many U.S. soldiers, I don't think their is a law that A) Should allow this or B) needs to be defended and the ACLU defending this speaks volumes about it's morality.

What happened to common sense and respect? A PERSON DIED and that persons family is morning that death and burying this person. . and you want to defend someone holding a sign up saying "Thank God he's dead"!?!?

Who cares about what law, what statute, what judge or what lawer? This is dispicable and sickening, plain and simple. Get off what the law says and get back to common decency.

This is all I have to say and it dosen't take a law degree from Harvard to figure it out. Do any of you people understand this that are so INTELLIGENT when it comes to the "Law"?
7.27.2006 2:28am