May 25, 2006

What IS Speech?

Today, the House approved (by voice vote) a Senate bill that bans protests at national cemetaries during the burial of fallen soldiers. I can't imagine President Bush not signing it.

The bill is aimed squarely at the vile and notorious Fred Phelps (whom I will not refer to as "Reverend," because whatever church ordained him should take it back). Phelps has been showing up with his groupies at military funerals, screaming "God hates fags," calling the dead solders "abominations," and carrying signs reading (no joke) "THANK GOD FOR DEAD SOLDIERS." (You can see the sign at the link; we're not putting the picture up here.)

Under the Senate bill, approved without objection by the House with no recorded vote, the "Respect for America's Fallen Heroes Act" would bar protests within 300 feet of the entrance of a cemetery and within 150 feet of a road into the cemetery from 60 minutes before to 60 minutes after a funeral. Those violating the act would face up to a $100,000 fine and up to a year in prison.

The sponsor of the House bill, Rep. Mike Rogers, R-Mich., said he took up the issue after attending a military funeral in his home state, where mourners were greeted by "chants and taunting and some of the most vile things I have ever heard."

"Families deserve the time to bury their American heroes with dignity and in peace," Rogers said Wednesday before the House vote.

Like the anti-flag-burning bills, this one will be wildly popular... yet raise profound constitutional questions. Phelps, of course, sees it as his holy duty to announce that soldiers are dying in Iraq and Afghanistan because America hasn't yet rounded up all the homosexuals into internment camps, and that such a ban violates his civil liberties:

In an interview when the House bill passed, Phelps said Congress was "blatantly violating the First Amendment" rights to free speech in passing the bill. He said that if the bill becomes law he will continue to demonstrate but would abide by the restrictions.

And see if you can guess who is leaping into the fray... and on which side:

More than a dozen states are considering similar laws to restrict protests at nonfederal cemeteries. The American Civil Liberties Union has filed a lawsuit against a new Kentucky law, saying it goes too far in limiting freedom of speech and expression.

I have absolutely no idea how the courts will rule on this; I think the $100,000 fine is probably excessive... but restrictions on protests (moving them some distance away from an event, for example) have been upheld before. I think it will hinge, in the minds of judges and ultimately justices, whether the purpose of the act is to suppress expression.

A number of conservatives, seeing themselves more or less as free-speech absolutists, oppose criminalizing these protests, despite being appalled by the message; on one point, they are correct: we certainly cannot have one law for protests we support and another for protests that disgust us. But to me, that isn't the end of the question; it's the beginning.

What, exactly, is the "speech" that is protected by the First Amendment? There has been a lot of discussion about the mechanism of "speech," whether something nonverbal like nude dancing qualifies; the money of speech, whether campaign contributions qualify as free speech in favor or (or opposed to) a candidate; and at least a million words have been expended in the blogosphere debating the motives of a ban, whether McCain-Feingold bans political speech in order to protect incumbents from having to answer inconvenient questions in the final days of a campaign.

But what about the targets of speech? Does freedom of speech include the right to target anyone, anytime, anywhere?

As a universal rule, certainly not; it's ludicrous to uphold protesters blaring their message via bullhorn in a residential neighborhood at 4:00 am. Freedom of speech is never absolute; even libertarians agree that you don't have to right to tell a potential buyer that your car only has 50,000 miles on it when in fact it has 150,000. But where do you draw the line, and how fuzzy is it?

"Freedom of speech" is actually shorthand for two distinct but equally vital rights:

• The right to say what you believe;
• The right to listen to what others are saying.

But just as the right to "speak" includes the right to stand silent, then right to "listen" includes the right to plug your ears.

People have a right to be let alone by demagogues; this must be balanced with the right of even demagogues to engage in demagoguery... but it's a balance, not an absolute. By forcing your speech upon people who have no interest in hearing it and no rational relation to the object of the protest, you have violated the Freedom of Speech of your targets far more egregiously than moving you farther away would violate yours.

There must be some rational relationship between the object of the protest and its target. It is manifestly irrational to protest the Iraq war by sending 10,000 people to picket in front of a Mom & Pop shoe store in Hoboken, NJ. There is no reasonable connection, no reason why the shoe store should be commercially obliterated (which is what would happen) if they are not in any position to do anything about the war in Iraq, and are in fact simply bewildered at being so honored.

I go back to first principles. The purpose of the First Amendment was always to protect the right of the people to speak out against injustice (as they saw it) in order to move people to do something to change it. For example, to speak out against the tyranny of George III, or against slavery, or against Jim Crow; to move Congress to outlaw booze and to try to influence a court to find a defendant not guilty (or guilty); to persuade Congress to immediately make all illegals citizens -- or persuade 'em to deport them all and put soldiers on the border.

Whether or not you may have the right to urinate on the American flag -- and I think you should have -- you certainly have no right to run after me and shove it in my face. In that respect, your "speech" is limited by my right not to observe it... the target, too, has rights.

What about public places, like national cemetaries, during particular events, such as funerals of soldiers? The conservatives and libertarians who object to such a ban are certainly right in one respect: Phelps' protest is overtly political in nature: he wants laws passed to segregate and perhaps incarcerate homosexuals. He is as political as Tom Metzger or David Duke.

But these protests fail the critical "rational relation" test, in my opinion: there is no explicable connection between the parents of a soldier killed in action in Iraq -- and laws criminalizing "sodomy."

• The protesters make no claim that the specific soldier killed was gay;
• They don't claim the parents are gay-rights activists;
• They don't claim the funeral itself is a celebration of homosexuality;
• They don't even claim that the military is a significant defender of gay rights.

There is no rational connection between the object of the protest and its target. None. And even if the protesters belated start making these claims, that doesn't make them any more reasonable. This sort of crap is much more like the 10,000 picketers in front of Fred's Shoes than it is like peeing on a flag on the steps of the Capitol.

The "reasonable relation" test should dramatically affect the balancing act between the right of speakers to speak -- and the right of the unwilling audience not to have to listen. Where there is a reasonable relation between object and target, freedom to speak should predominate; but where there is no such relation, then the freedom not to listen to the repugnant is the higher principle.

If we applied this uniformly, I think we would get some interesting results: flag burning in public places would not be affected by such a rule, since there is a clear and obvious connection between the American flag and policies of the United States (we "pledge allegiance to the flag... and to the republic for which it stands," after all); but protesting the Iraq war by stripping naked likely wouldn't pass muster, because there is no rational connection between the one and the other.

Contrariwise, stripping naked en masse at a beach to protest the arrest of some skinnydippers would at least pass the "rational relation" test -- though it may run afoul of other restrictions beyond the scope of this post.

There are an infinity of avenues left for Phelps and his mob of perverts to protest in favor of sexual-preference apartheid, many far more rationally related to the subject than this. I really don't see how such a ban violates their freedom of speech (part I) when weighed against the freedom of speech (part II) of the families and friends of the dead soldiers; and I'm surely not inclined to stretch for a reason, as the ACLU is.

(I do wonder, though: if the funeral disrupters were members of International ANSWER, screaming "capitalist pig!" and "baby killer!" at gold-star parents -- that is, if the protesters shamed and humiliate the Left, rather than the Right -- would the ACLU be so speedy about jumping into the fray?)

Hatched by Dafydd on this day, May 25, 2006, at the time of 3:31 PM

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