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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Tonya Cross
Tonya Cross

I agree with you on this one, David.  This case shows that our freedoms and rights are not black and white things.  We have the responsibility to think when we choose to exercise our freedoms.
What Phelps does is reprehensible, but we have to be aware of where his rights stop & ours begin.  It will be interesting to see what the Court decides, AND to read what they write about this case, both pro and con.

David Lauri

I believe that legal things, between people, in private, should have the right to remain private. This applies to your choice of sexual orientation
I don’t think the Phelps clan is outing anyone.  Frankly they’d probably be happy if America would return to a time when gay people stayed in the closet.
And isn’t it funny how very few heterosexuals are truly private about their sexual orientation?
If you’re heterosexual, just try not mentioning your sexual orientation for even a single day.  That means you can’t use pronouns when talking about your significant other.  That means you can’t display a photo of your spouse on your desk.  That means you can’t mention the first name of the person you went to dinner with last night.  That means that if someone asks if you’re married, you can’t say so because in Ohio being legally married means people will assume you’re heterosexual.
I get accused of flaunting my homosexuality, but guess what, David E?  You flaunt your heterosexuality.  You don’t truly believe that your being straight is a private matter.  I know, because I’ve met your girlfriend.

Robert Vigh
Robert Vigh

I believe the right to free speech is absolute. I think it is ridiculous this pastor may have to spend a small fortune to defend himself over free speech. I do not even like the law disallowing yelling fire in a crowded theatre.

Free Speech is free speech period. You either protect it or you do not. Once you begin arguing the degree with which speech should be free………….well, it is no longer free speech at this point.

I am not up to speed on the event you wrote about, but it probably came about because of public property. Some amount of public property was within distance of the funeral and they staged there. Otherwise, I would feel the owners of the funeral home would have a right to remove protestors from their property and allow their paying customers to continue at peace.

Speaking anonymously is definitly ok. I would never not want to hear someone’s opinion or idea because they did not want to identify themselves. I am ok taking the good with the bad and leave that inalienable right just that, inalienable.


Side note but somewhat relevant.

DDN has blocked comments on all articles. It’s about time!

Shortwest Rick
Shortwest Rick

Before we all jump on the First Amendment bandwagon, this case is not about if Westboro folks were denied freedom of expression, the court has always maintained a line between freedom of expression and fighting words. The court (loosely) cites the example; if you shout insults and profanity at a person, it angers that person to the point that they kick your ass, then you have no avenue to recover damages from that person. What is in question in this case is if Westboro targeted the fallen solder’s family by distributing a flyer two days before the funeral naming Matthew Snyder with his picture included and posting defamatory statements on their website naming Matthew Snyder and his family in their campaign. What is in question in this case is if Westboro’s actions are covered under the umbrella of freedom of expression or if they have crossed that line into perception of personal attack.


There are very fine lines between free speech and violence inciting speech, as the Supreme Court recognized with their “fighting words” ruling.  But George Carlin was brilliant in his lampooning of how ridiculously sensitive people get over words.  He laughed at how he could go on network TV and say “I can prick my finger”, yet when he said “I can finger my p***k” in the next sentence, it was censored!  He also talked of how really ugly, truly obscene words like “kill” can be uttered freely, while useful, descriptive words like f**k were frowned upon.  He suggested switching the two words for a day.  Can you imagine John Wayne saying to the villain in a movie, “You better get out of town by sundown… or I’m gonna’  f**k  ya’.”  My bet is that villain’s out of there quick.
Shakespeare said a rose by any other name would smell as sweet.  The phrase “What’s in a name?” also comes to mind.   “Cornhole”  is a much different game to some people than it is to others.  People get way too intolerant regarding mere words.  Yet, regarding words and speech and how we try to peacefully coexist in a society, yelling “FIRE!” in a crowded moviehouse certainly has the potential to cause a stampede and incite panic, compared to yelling “MOVIE!” in a crowded firehouse (unless the movie in question is “Xanadu” or something of the sort.)
There is also a HUGH distinction in our laws regarding public and private speech.  Even mildly criticize a referee in pro sports, and you get a $10,000 fine.  In private situations, people can be fined, disciplined, or even fired from their job for things they say that in no way meet the level of “fighting words” or illegal harassment.  There is a completely different standard of free speech when the situation is public or private, and that is part of the issue here regarding protests at the funeral.
It does boil down to the basic question:  where does one person’s rights stop and another’s begin?  In the situation, I think the protester’s actions cross the line.

David Lauri

I love you, Pizza Bill.  No, Adre doesn’t have to worry, it’s not that kind of love, but I love that you point out the absurdity of language and people’s weird sensitivities.
Our host here isn’t immune to these strange sensibilities.  Had you not self censored and instead spelled out the profanity f**k, he might have edited your post and changed f**k to frak, as he’s done in the past.  It’s his blog, so he’s well within his rights to do so, just as I’m well within mine to say f**k on my own blog, but Jesus Frakkin’ Christ, who’s fooled by some asterisks or a science fiction fake obscenity?  And who does the FCC think it’s protecting by allowing Jon Stewart to say f**k as much as he wants so long as Comedy Central overlays bleeps that don’t really keep us from knowing full well when Jon Stewart has said, “f**k”?
Back to the subject at hand, whether the Phelps crossed some line by what they say to the extent that their right to free speech should be curtailed, I don’t think they have.  If they are clever enough (and they don’t seem to be really smart people, bless their hearts, but clever enough) to find public property on which to perch when they protest soldiers’ (and queers’, although no one really got offended until they started on the soldiers) funerals, then they’re within their rights to do so, so long as they don’t obstruct the funeral procession or make so much noise as to prevent the service from being held. Let them hold up their “God Hates Fags” signs — in the grand scheme of things, I think the Phelps are their own worst enemies and do more for the cause of equal rights for queers than they really want to do.

Bob Joel
Bob Joel

What is the difference if you comment anonomosly on a web site and standing in a crowd listening to a speech and commenting out loud, YOUR FULL OF CRAP. You have not stated your name and are not obligated to do so. Even if on private property where the public is encouraged to attend.

However shamefull some speech may be, quelling it can make those who have no power even more powerless.


Even an anonymous screamer is limited in the United States by the laws of libel. You cannot stand in a crowd listening to a candidate and say he committed incestuous rape on his pre-pubescent daughter or yell at the baker that he using contaminated flour because of rats in his kitchen.
I would imagine that the pastor’s screams at the soldiers’ funerals are actionable in most states. I’ll be very surprised if the Supreme Court upholds the pastor on this one. (But it’s hard to say anything positive about this lovely court after all these years of GOP court-stuffing. This court thinks it is OK for a foreign corporation to donate money to the campaign of a U.S. candidate. I do not.)



“who’s fooled by some asterisks or a science fiction fake obscenity?”

Answer:  Kids ages 2-8

For better or for worse, we try to keep them as innocent as possible for as long as possible.


As usual Robert brings up the most salient point and nobody notices.  In fact, people give him the old thumbs down.
Free speech could be completely free if we had reasonable standards of private property and eliminated the concept of “public”.
The reason that this stuff ends up being so easily lampooned is that it is not logically consistent.  Words are words.  I should be able to say anything I want to you, or about you…anything…including things that you might find insulting, as long as I am on my property or the property of a person who doesn’t mind if I berate you.
The property owner should dictate the terms of the use of his or her property.  Dicks Last Resort is a great example.  The wait-staff actually does engage is abusive behavior…it is well known…it is a marketing ploy.  If you were offended and punched a staff member you would surely be removed from the premises and charged with assault, justifiably so.
Similarly, if you are in a Catholic church, the owners should have the right to set the terms of entrance.  They should be allowed to dictate that you may not “speak freely” by desecrating the Eucharist, or you will get beaten with the cross until you can’t move…or whatever.
The point is, that it is the owner’s right to determine the level of speech that they will tolerate.  If you do not like the level they set, then leave.
As always, Walter Block is brilliant in his defense of free speech.  http://www.youtube.com/watch?v=ICtE0Zs22Ko

David Lauri

@Steve: what are your innocent kids aged 2-8 doing surfing the web or watching television unsupervised that they’d even encounter asterisked, sci-fi or bleeped profanities?

David Lauri

I Let My 4-year-Old Swear: Why kids’ cursing isn’t necessarily a bad thing” is a fun article by a stay-at-home dad who’s being honest with his son about language:

Because to him the words are no different than any others, he doesn’t delight or marvel in using them; they are simply utilitarian language for when things go wrong.

Doogie Donnelly
Doogie Donnelly

The 1st amendment actually states that congress shall make no law that abridges speech.

It is quite clear that this constitutional prohibition is an absolute  limitation on the central government, and not a limitation on the states or the people.

In other words, any law that congress or the federal courts create that limits speech is constitutionally invalid, including any pondered limitation on Phelps and his clan.

The proper jurisdiction for this matter is the Kansas state or local courts.


Putting on my hat as an MA in political science, Doogie Donnelly is absolutely correct, with one little BUT
Passage of the series of Reconstruction amendments after the Civil War to free the slaves included the Fourteenth Amendment which extended all the rights and freedoms of the Bill of Rights to the states. That means Kansas must provide Bill of Rights protections and that means Pastor Phelps cannot be stopped under the First Amendment. I repeat that I believe that he can be shut up by the libel laws.

Doogie Donelly
Doogie Donelly

The 10th amendment gave the people all undelegated, reserved powers.  The only powers that states and the central government can exercise are those that are delegated by the people  and enumerated in the US constitution.

The “people” in the constitution is a reference to local governments.

It is the reserved power of local governments to decide if Pastor Phelps is uttering libelous or unacceptable speech, and not the power of the states or the central government to decide.


Doogie errs when he cites the 10th Amendment.
The 14th Amendment “federalized” the Bill of Rights, meaning that the
reservations enumerated in the 10th are no longer in force.
I agree that the Kansas courts have jurisdiction — for libel.


Actually no Dad.

It makes no rational sense that the fox (federals) should guard the hen house (free speech).

The 14th amendment merely extends the limitations of the 1st amendment imposed on the federals to the states, but not the local governments. It is now the exclusive jurisdiction of local goverments to decide what is or is not legitmate speech, not the states or the federals. Neither the federals nor the states can make any law that limits or defines what is legitmate speech.

Otherwise, what you are spouting is PC nonsense.

The reason that PC nonsense has to be taken seriously is because the ABA spouts it, and the ABA has a huge influence on what it selected as a federal judge.

Ice Bandit
Ice Bandit

 I do not even like the law disallowing yelling fire in a crowded theatre.  (Robert Vigh)

….nor does the Old Bandito, dear Robert. But perhaps other than the obvious observation that great minds think alike, some historical perspective is in order. Your aforementioned prohibition is not in fact law, but rather one line from the majority decision in the 1919 Supreme Court decision in Schenck vs. United States. Penned by justice Oliver Wendell Holmes, it is often forgotten that the line is incomplete, for Holmes’ warned that “falsely” screaming fire was speech not constitutionally protected, giving  the phrase new meaning. Furthermore, the line was in defense of a violation of free speech protection so incorrect and wanton (Schenck was jailed for anti-draft pamphleteering during World War I)  it shocks the sensibilities of constitutional scholars today. As an aside, the phrase is not even the most quoted line from the decision, for in the next sentence, Holmes introduces the legalism “clear and present danger.” The Schenck decision was too flawed,  illogical and hostile to the First Amendment to withstand long standing constitutional review, and has been incrementally overturned by numerous cases. So in final review, dear Robert, the phrase about screaming fire in a theatre  is a misquoted and misunderstood rendering of a flawed and disregarded decision which hasn’t had the force of law since LBJ was in the White House. And if that ain’t refutation, it will do until the real thing comes around…….


Ice…Correctamundo…Schenck vs US was the result of the Espionage Act of 1917.  Amended shortly after by the Sedition Act of 1918.  It forbabe disloyal language against the U.S. Government and Armed Forces.  Brought to courtesy of Progressive icon Woodrow Wilson.

David Lauri

Here’s a fun new YouTube which will drive people crazy who are opposed to kids swearing and/or queers marrying: FCKH8

David Lauri

Battlestar Galactica is coming to BBC America and so they’ve made a YouTube frakkin’ full of fraks from the series. It’s getting to the point that it’s frakkin’ ridiculous that frak doesn’t need to be bleeped even though it’s frakkin’ obvious what the frak “frak” means.  Pretty soon David E will have to censor “frak” in comments on his blog.

David Lauri

Gawker reports on some fun signs a Japanese department store made up for their big f**kin’ sale (and no, the signs didn’t use David Esrati’s favorite obscenity, “frak”).

David Lauri

A fun update on the topic of free speech is this recent Supreme Court decision on FCC regulations on cursing. Go view the PDF of the decision and search for the four-letter work starting with F that David E always changes to “frak” on his blog. You won’t find that unprintable word.  Go search for the phrase the “F-word” and you’ll find it several times.  The Supreme Court of the United States thinks that actually sounding out the word that we all think in our heads whenever we see “F-word” or hear a “bleep” on TV is horrible and instead like school marms resorts to the phrase “F-word.”  Jesus F-word-ing Christ.


(OMG! David Lauri and I finally agree on something.) Human language is ever-changing, organic, amorphous. Trying to legislate the use of language is futile, will always be futile, and recent attempts have become so ridiculous that they’re actually hysterically funny. Last week, the fine folks in Middleborough, MA approved a $20 fine for public swearing: http://www.usatoday.com/news/nation/story/2012-06-12/middleborough-swearing-fine/55542416/1 This week the FCC spins its wheels saving us from the horrors of the F-word. It’s ludicrous that, with all of the real problems in this country, our politicians and federal agencies waste their time and our tax dollars tilting at linguistic windmills. I have always been fascinated in the use and development of language. For my master’s degree, I did a substantial research project on verbal taboo in the English language. Verbal taboo has been in existence since the beginning of language, it’s nothing new under the sun. You’re all familiar with George Carlin’s “shit, piss, fuck, cunt, cocksucker, motherfucker, and tits.” In my study, I also included ethnic offenders like nigger, wop, and kike. I included gender offenders such as bitch, and whore. Tons of sexual offenders too numerous to mention. We’re so hung up on sex in this country, that was the easiest list to compile. My college friends and I sat around one afternoon coming up with every curse word we could think of; it was great fun a though-provoking intellectual exercise. Then I surveyed hundreds of people in the mall, on college campus, randomly on the street and asked them to rank the list of my verbal taboo words according to their perceived level of offensiveness. Next I analyzed the data based on the respondent’s age, gender and level of education. I broke the offending words down into their linguistic components (hard sounds “”tit” vs. soft sounds “boob”, etc.). What I found, among other fascinating things, was that young people use verbal taboo to shock the older members of society. No big surprise there. The older, more educated folks in the survey were demonstrably more upset by the verbal taboo. Same reason we geesers don’t like teenagers’ music, their… Read more »