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.

Thursday, November 8, 2007

The limits of the First Amendment: response to Volokh on the $10.9 million verdict against Westboro "Baptist Church" for protesting funeral of soldier

The uber-smart law prof Eugene Volokh has a series of posts on the verdict in light of the First Amendment. I agree with much of what he says, except on what I think is the most fundamental issue. Here's the comment I posted in response to one of Prof. Volokh's posts:

Prof. Volokh:

Part of your argument is based upon what First Amendment jurisprudence currently says; and part is based on how you think it should be interpreted, the direction it should go, and policy / "slippery slope" arguments (which, as you identify as a libertarian, I'll assume are based on corresponding notions of natural justice). I'll defer to you on the former part of your argument but question your conclusions with regard to the latter part of your argument. Specifically, I don't think that natural justice and policy/slippery slope considerations require that "people would still be able to express their anti-American, anti-gay, cruel, unduly personalized, and just plain disgusting views . . . in picket signs that aren't right in front of the funeral but are visible from the funeral procession . . . ."

If I imagine an anarchist but for the most part just society that is not entirely pacifist, I think that family and friends of the deceased would be well within their rights to chase such protesters away from the vicinity of the funeral, clean out of sight and out of hearing. As things stand now, however, family and friends would get themselves in trouble with the government for doing so, and the burden is on people who would say that they should indeed incur consequences from the government to justify why this is so. On the other hand, in a just natural society that respects personal space and free speech, I don't think friends and family of the deceased would be justified in going out of their way to disrupt a protest taking place a mile away or across town, or to somehow prevent people like the Phelpsians from calling into radio stations, issuing press releases, or posting their hateful garbage on websites, and the like.

I wonder whether we haven't fetishized public protesting and overstated its importance in the discourse and truth-seeking that the First Amendment was designed to protect. Certainly when such protests intentionally, coercively and aggressively invade the space of the objects of their protest, even in public places, considerations of personal space and the right to be left alone are just as important from the freedom-loving point of view as the right to free speech. (And I don't think we can arbitrarily set the boundaries of personal space with something like a 300 ft. "buffer zone." Seems like it has more to do with whether the speaker is intentionally and coercively imposing his speech on another in a way that the other can't avoid, e.g., if the protesters in this case got advance notice of the funeral procession route and set up their protest and held their abominable signs along that route.)

I'm inclined to distinguish such things as abortion clinic protests by suggesting that people do have a right to protest conduct or speech with which they disagree as it is happening. Objectionable conduct or speech "opens the door", so to speak, to contrary speech and protest. Such a principle would preclude, e.g., residential picketing of an abortionist's home, which I don't think would be a bad thing -- i.e., I don't think the discourse of this nation would suffer because of such a preclusion (and I'm pro-life and as an undergrad participated in abortion clinic protests). I suppose the Phelpsians would respond by saying that they're not only protesting homosexuality but the actual celebration and "conduct" of this funeral, that this dead soldier should not be mourned by his family because he was part of the military of a nation which protected homosexuality. Now, that's just B.S., and maybe we'll just have to exercise our common sense and recognize the special case that funerals present by enacting a statute which prohibits protesting a funeral anywhere within sight or hearing of the funeral or the funeral procession. I don't see how such a statute could run afoul of the First Amendment properly interpreted in light of natural justice, because it seems that the natural right to mourn one's dead child in peace is every bit as fundamental as the right to free speech. Indeed, the right to mourn one's dead child in peace would seem to be protected by the other part of the First Amendment having to do with free exercise of religion. (Government action being implicated because in the absence of a robust recognition of this right family and friends of the deceased would be prevented from, or punished for, exercising their natural right to chase the protesters out of sight or hearing of the funeral.)