In my first post on the subject of the case involving Fred Phelps, et al. currently before the Supreme Court, I stated that I could not figure out what way I wanted the Court to rule. Upon further reflection, I think I clearly want them to rule in favor of Phelps, as revolting as he and his followers are.
I am a firm believer that the First Amendment shields people and organizations from government action to curtail their speech. I just as firmly believe that the right to free speech does not carry with it the right to any soapbox you care to stand upon, or the right not to be confronted vociferously with people who disagree with you. (I am all for boycotts of advertisers to Glenn Beck’s show, for example, to try and get the man off the air.)
Time, place, and manner restrictions have always been acceptable. I think that is both reasonable and just. However, there are just as firmly established concepts concerning places that should be off-limits to restriction. It has been twenty years since I studied this subject, but public spaces, which the Phelp’s appeared to have been inhabiting, are among those.
It is clear from the record that the Phelps contingent obeyed all police instructions concerning where to stand. In other words, they seem to have complied with the time and place restrictions already placed upon them.
Then, too, is the fact that the plaintiff in this case, the Marine’s father, did not see the protesters at the funeral, but only on news coverage later. To what extent is there, or should there be, a responsibility not to seek out, or to avoid, painful information? Why could he not have simply not watched?
The issue of the website becomes trickier, and not just because of this case. From what I could see of the record, the information on the site was scurrilous. Should it rise to the level of libel? This issue becomes even thornier when you consider that there have been cases of bloggers revealing extremely personal information on their sites about other people (addresses, workplaces, phone numbers) which have placed those people at risk for harassment at the least and violence in the worst case. Where would a line be drawn?
As I said, I have not studied the constitutional issues for far too many years, and have not kept up with the legal status of blogs and other electronic means of communication (with the exception of the Internet Neutrality issues and workplace privacy issues). I know I should, given how much electronic communication I do, but I haven’t. So my opinion on these matters may be worth squat.
And then there is the issue of private versus government action. Ah, one might say, this is a individual suing to recover damages, not the government acting to curtail Phelps. But private rights of action can only exist within the framework of a government. Some branch of government, usually law enforcement or the judiciary, will be called upon to back up those rights. The effect of such rights can be just as chilling to free speech as a the threat of arrest.
So I will continue to watch this case, hoping for a ruling in favor of the First Amendment. And in the meantime continuing to rail against the Phelps and all their hateful ilk.