NOTE TO SELF, BASED ON QUAKER TESTIMONIES OF INTEGRITY, SIMPLICITY, PEACE, EQUALITY, AND COMMUNITY:

1. Love the Lord your God with all your heart, mind and soul, and your neighbor as yourself.
2. Do what you say, say what you think, think what is true.
3. Subtract superfluities from your life, speech, desires and thoughts.
4. Don't initiate aggression against the persons or property of others, nor support people who do, including the people who "constitute" the government.
5. Respect life and natural law.
6. All people are endowed by their Creator with equal and inalienable rights to the earth and to the fruits of their own labor, and a "Citizen's Dividend" funded by a "Single Tax" on the unimproved value of land and other natural resources would be the fairest way to protect these rights.

For supporting materials, see the Archive and the Recommended Reading and Videos section at the bottom of this page.

Wednesday, November 14, 2007

Eugene Volokh responds to my previous comment in his latest post on Westboro "Baptist Church"

Eugene Volokh quotes me and three other commenters in his latest post on the verdict against Fred Phelps and his Westboro "Baptist Church" for protesting the funeral of a soldier killed in Iraq. Here's my comment that Volokh quoted. Volokh proposes a hypothetical in which a public university decides to discipline students who hold a demonstration carrying posters that display the Mohammed cartoons, and suggests that upholding the verdict against the Phelpsians might lead to a slippery slope and the loss of First Amendment protection for the kind of speech in his hypothetical. I responded in the comments section of his latest post with the following:

"Or how about another hypothetical: protestors outside a Catholic Church on Sunday morning carrying signs calling the Catholic Church the "Whore of Babylon," or making the factual statement that "X number of priests have raped boys," or "This Church's bishop swept child rape under the rug," or any of many other things people could and do say against the Catholic Church. Perhaps some of them are carrying a defaced Crucifix or other image outrageously offensive to Catholics.

I raise this hypothetical as an alternative to the Mohammed cartoon hypothetical for several reasons: I was the source of the comment suggesting the family of the deceased's countervailing First Amendment "free exercise of religion" right to mourn their child in peace in point 10 of Eugene's post; the different examples of speech that might be exercised at the Church protest highlight the difficulty of drawing a bright line defining outrageous and unacceptable speech, particularly when you consider that one of the people holding such a sign might have themselves been abused by a priest and be justly angry at the Church and/or its policies; and the targeted nature of the protest and its encroachment on the space of people doing what they clearly have a right to do who presumably are unwilling recipients of the protest "speech," which for me has been key to my belief that the Phelpsians' funeral protest was not protected by the First Amendment, and which seems clearer in this Church protest hypothetical than in a Mohammed cartoon demonstration on a college green.

I raise the hypothetical to myself to see if I can indeed distinguish in my own mind what seems to me an even harder hypothetical than the one Eugene raised from the Phelpsians' funeral protests. As a former Roman Catholic, I consider myself for the most part "Catholic-friendly," but I do think the hypothetical protesters I'm contemplating would have the right to make such a protest on a public street outside the Church, and that the Mohammed cartoon carriers would have the right to make their protest (and I think current First Amendment jurisprudence bears that out), so long as the protests were not so loud that they could be heard inside the Church or inside the private dormitories on campus.

Nevertheless, I still think funerals are distinguishable in a way that may make them pretty much unique (making it rather problematic to apply to them "principles" which are supposed to apply to a wide variety of cases). Among their most important distinguishing characteristics for present purposes is the fact that those "celebrating" them are typically emotionally devastated, the fact that it is virtually impossible to sensibly argue that the ceremony itself hurts anybody, and the fact that they are celebrated only once for each deceased. Protesters therefore have the potential to ruin forever a religious ceremony mourning the deceased and praying for his or her propitious journey to a favorable afterlife. As I've suggested in other threads, it seems to me that the right to mourn one's dead child in peace is every bit as fundamental as the right to free speech itself. As such, it seems that this right would be worthy of an Amendment all its own, though it would seem rather odd to devote a Constitutional Amendment to something so particular that occupies only a tiny fraction of human life. Nevertheless, it's a pretty important fraction to those who have lost a child or other loved one.

I'm not necessarily arguing for the propriety of this particular verdict, but for the propriety of a statute prohibiting anyone from protesting a funeral within sight or hearing of the funeral. I'm no big fan of the Court's propensity for inventing fundamental rights where none exist, but it seems there is room for recognition of this particular actually existing fundamental right in First Amendment jurisprudence."