Where to draw the line on free speech.

I love the First Amendment, in fact, I was willing to stake my personal freedom and all I owned to defend my rights to protest. I’ve been jailed, persecuted, ridiculed and have continued to suffer the consequences of small minded people who never quite get what went on when I donned the mask and became “Ninja Dave.” What many people don’t realize was after I won five court battles- the City had one last chance to appeal- to the US Supreme Court- and only stopped because of the cost it would take to continue- despite having been warned explicitly by the very first judge that their path was the wrong one, and they would take a hit if they continued their foolishness.

Note- although I’ve been through the mill on this issue, I’m not a lawyer, nor trying to argue like one. I won’t be citing case law to prove my opinion on this. It’s plain speak and based on my personal experiences and thoughts on the subject.

Yesterday, the Supreme Court heard the case of “Pastor” Phelps and his “God hates fags” and “Thank God for Dead Soldiers” “protests” at military funerals.

From the New York Times:

The Supreme Court heard arguments on Wednesday in a highly charged case involving protesters objecting to homosexuality who picketed a military funeral. Should private individuals be able to sue others for intentional infliction of emotional distress caused by offensive speech?

The father of a fallen Marine sued members of a Kansas church who had used his son’s funeral to spread their message that God is punishing the United States for its tolerance of homosexuality by killing its soldiers.

via Supreme Court Takes Up Funeral-Protest Case – NYTimes.com.

Thanks to the internet and the increased ability of anyone to rise to the “15 minutes of fame” to which we all seem entitled, I believe we will see a lot more free speech cases end up before the Supreme Court. From the rights to comment online, to the right to publicly assemble and discuss “treason”- as some would call the Tea Party rally’s- or the rights to disclose military documents- as Wikileaks has done, where to draw the line is getting increasingly difficult.

In the age of uncontrollable speech- where everyone can have a soapbox- decorum is quite different than what happens when you have to go face-to-face, where you risk getting punched or worse.

Pastor Phelps is looking at an $11 million dollar sucker punch handed down by a jury- a serious slap that cannot be ignored. He is right to defend himself- and it is right that this case ends up in the high court. He’s even got some pretty big media support on his side:

The Reporters Committee for Freedom of the Press and 21 news organizations, including The New York Times Company, filed a brief supporting the Kansas church. It said the First Amendment protects even hateful speech on matters of public concern.

To me, there is a factor that’s missing in this discussion that I think is fundamental- the issue of public vs private speech and public vs private forum. There is a line between hate speech and free speech- if I threaten you with bodily harm, I’m engaged in harassment, menacing or worse. If I say you’re ugly and your mother dresses you funny, even the most sensitive person doesn’t have, nor should have recourse in the courts- unless it’s a systematic and planned campaign of abuse.

I have no problem with Pastor Phelps’ hate speech- what I do have a problem with is his choice of venue. Funerals are a very private and personal matter, Phelps crossed a line that the rights of Free Speech should not be able to trump- the rights to privacy of private people.

Public figures give up some rights of privacy, by nature of their profession. And while politicians are fair game for satire, commentary, dissent, it’s still illegal to threaten to kill the president. By the same token, actors and actresses suffer constant harassment from paparazzi- some have sued and won, some have lost, at issues is what I consider another fundamental right- the right to have a private life. It’s not explicitly in the Constitution, but perhaps it should be. We saw a circus around Monica Lewinsky and her oral skills- that distracted lawmakers for over a year- in an area in which we really gained nothing- but being the laughing stock of the world.

I believe that legal things, between people, in private, should have the right to remain private. This applies to your choice of sexual orientation and it applies to being able to have a private funeral. There are plenty of times and opportunities to get up on a soap box, but I fail to see how the private ceremony of a family mourning a fallen solider could or should be used as the springboard for a discussion of homosexuality.

Likewise, I believe protection should be afforded to actors who choose not to give interviews and make a conscious effort to live a private life- without getting involved in media stunts etc.- should be afforded a level of privacy enjoyed by the common citizen- who would be able to file a harassment or menacing suit against a stalker.

And although the First Amendment does protect the right to speak anonymously, personally, I find it to be the mark of spinelessness, which is something I personally have little use for. If you’ve got something to say- stand up and say it, otherwise, the right to do so may slip away- just don’t say it when the other party is unable to respond- because they are focused on something as personal as a funeral.

Free speech is what has separated this country from many others- it is a hallowed right. Pastor Phelps is free to spew his crap and I would defend his rights to the end, I just believe that the forum he chose is an inappropriate one and I think that the jury was right to send him 11 million reasons why he should take his argument elsewhere.

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