You be the judge

Two Supreme Court cases. . . .

(1)  A man was shot.  Just before he died, he said, “Rick shot me.”  So Rick was arrested.  The problem is, the Constitution requires that the accused be able to face the witnesses against him so they can face cross-examination.  In this case, the witness–who was also the victim–is dead.  Therefore, according to the Michigan Supreme Court, the victim’s dying words identifying his killer are not admissible in a court of law.

The Supreme Court overturned that ruling, 6-2.  Rick will have to pay for his crime, on the testimony of his victim.  Justice Antonin Scalia, a Constitutional originalist, wrote a bitter dissent.  In this case, the court favored what might be called common sense over and against the literal reading of the Constitution.

Court: Victim’s dying words may be used at trial.

(2)  Westboro Baptist church has a ministry of picketing the funerals of dead servicemen, carrying signs that say things like  “Thank God for dead soldiers,” and “God hates America.”  Efforts have been made to keep the picketers away from the funerals and from the families of the bereaved.

The Supreme Court, with only one dissenting vote (that of Justice Samuel A. Alito), ruled that the free speech provisions of the Constitution protect the protesters, who must be allowed to show up at funerals with their offensive placards.  In this case, the court favored the literal reading of the Constitution over what might be called common sense.

Supreme Court rules First Amendment protects church’s right to picket funerals

Conservatives are supposed to take the Constitution literally.  That would suggest being against allowing a victim’s dying words to be used as testimony AND supporting the free speech rights of the funeral protesters.  Is that what you believe?  If not,  what is your constitutional basis?

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • SKPeterson

    Perhaps the words of dying people can be taken into consideration, but allowance of those words is problematic; dying people can be wrong, they can still lie, a police officer or other person can “mishear.” I’m not a lawyer, and I don’t even play one on t.v., but it seems that a close parallel is with last wills and testimonies. These are often contested in court, even though the dead individual has sworn out such testimony before witnesses and in writing. If this type of testimony can be brought into question and occasionally overturned, then the protections of the law against individuals being incarcerated on the uncorroborated testimony of the dying should be even more suspect. Supreme Court fail.

    As to the second, Supreme Court win.

  • SKPeterson

    Perhaps the words of dying people can be taken into consideration, but allowance of those words is problematic; dying people can be wrong, they can still lie, a police officer or other person can “mishear.” I’m not a lawyer, and I don’t even play one on t.v., but it seems that a close parallel is with last wills and testimonies. These are often contested in court, even though the dead individual has sworn out such testimony before witnesses and in writing. If this type of testimony can be brought into question and occasionally overturned, then the protections of the law against individuals being incarcerated on the uncorroborated testimony of the dying should be even more suspect. Supreme Court fail.

    As to the second, Supreme Court win.

  • Pete

    It strikes me that the testimony of the victim should (a) be exceptionally valuable and, at the same time, (b), should be subject to the same rigorous scrutiny as any other testimony for the reasons pointed out by SK @1.

  • Pete

    It strikes me that the testimony of the victim should (a) be exceptionally valuable and, at the same time, (b), should be subject to the same rigorous scrutiny as any other testimony for the reasons pointed out by SK @1.

  • Pete

    The Westboro Baptist Nuthouse is a thorny problem. Free speech indeed allows for plenty of things we don’t like to hear. I think the court got it right. The solution, in this internet age, is a website with a national database of people sympathetic to the military who would be committed to showing up at funerals of slain service members in sufficient numbers to drown out the wackos. Holding up placards supporting the bereaved family as well as pointing out the lunacy of the WBC.

  • Pete

    The Westboro Baptist Nuthouse is a thorny problem. Free speech indeed allows for plenty of things we don’t like to hear. I think the court got it right. The solution, in this internet age, is a website with a national database of people sympathetic to the military who would be committed to showing up at funerals of slain service members in sufficient numbers to drown out the wackos. Holding up placards supporting the bereaved family as well as pointing out the lunacy of the WBC.

  • WebMonk

    You didn’t read the opinions before you posted this. Check out the reasoning on the SC’s ruling in Michigan v Bryant. They didn’t just take “common sense over and against the literal reading of the Constitution.” Not even close to it.

    There are different situations in which the words of a dying person are admissible in court, and the majority ruled that the situation in this case fit those situations.

    Normally I like Justice Scalia, but he went off the deep end on this one. Whether or not the ruling is correct, (ie. the dying man’s words fit the proper situation or not) Justice Scalia’s scathing critique was warranted because the majority based their ruling on long-established reasoning, not merely using “common sense” against a strict interpretation.

    As for the WBC case, it’s a bit thorny. The case was a free-speech case, but it was testing whether a party could make speech that directly and deliberately causes anguish to another. I think the court got this one right too. To rule otherwise would be to open a can of worms in which someone could claim that various sorts of speech are no longer allowed to be made because it causes anguish to the hearer.

    Extreme example, I know, but imagine a pastor at a church preaching that adultery is sinful, deserving eternal punishment. There could be a person in that audience who is having an affair about which the pastor knows and is particularly preaching the particular message to. That guy could conceivably sue for the anguish the pastor’s words caused to him.

  • WebMonk

    You didn’t read the opinions before you posted this. Check out the reasoning on the SC’s ruling in Michigan v Bryant. They didn’t just take “common sense over and against the literal reading of the Constitution.” Not even close to it.

    There are different situations in which the words of a dying person are admissible in court, and the majority ruled that the situation in this case fit those situations.

    Normally I like Justice Scalia, but he went off the deep end on this one. Whether or not the ruling is correct, (ie. the dying man’s words fit the proper situation or not) Justice Scalia’s scathing critique was warranted because the majority based their ruling on long-established reasoning, not merely using “common sense” against a strict interpretation.

    As for the WBC case, it’s a bit thorny. The case was a free-speech case, but it was testing whether a party could make speech that directly and deliberately causes anguish to another. I think the court got this one right too. To rule otherwise would be to open a can of worms in which someone could claim that various sorts of speech are no longer allowed to be made because it causes anguish to the hearer.

    Extreme example, I know, but imagine a pastor at a church preaching that adultery is sinful, deserving eternal punishment. There could be a person in that audience who is having an affair about which the pastor knows and is particularly preaching the particular message to. That guy could conceivably sue for the anguish the pastor’s words caused to him.

  • WebMonk

    Michigan v Bryant ruling can be found: http://www.supremecourt.gov/opinions/10pdf/09-150.pdf

  • WebMonk

    Michigan v Bryant ruling can be found: http://www.supremecourt.gov/opinions/10pdf/09-150.pdf

  • Jonathan

    (1) Exceptions to the hearsay rule: the “Dying Declaration,” the “Excited Utterance,” and the catch-all “Significant Guarantees of Trustworthiness.” The exceptions to the hearsay rule are always functioning as a trump to the “Confrontation Clause” because by its very nature, hearsay is “an out of court statement offered to prove the truth of the matter asserted.” Thus, I would say the Supremes are making new law here. They seem to be creating a new privilege sort of like the spousal testimony privilege. But even that one has a piercing exception in the case of domestic violence. That’s what the Supremes should have done here instead; create an exception to allow the hearsay testimony when the victim ends up dead at the hand of the accused. So, lesson to criminals? Make sure you finish the job.

    (2) There is such a thing as hate speech that is not Constitutionally-protected. Part of the analysis of when something is hate speech is the venue in which it occurs. Why this would not count as hate speech in the particular venue of a family’s funeral is simply beyond the pale.

  • Jonathan

    (1) Exceptions to the hearsay rule: the “Dying Declaration,” the “Excited Utterance,” and the catch-all “Significant Guarantees of Trustworthiness.” The exceptions to the hearsay rule are always functioning as a trump to the “Confrontation Clause” because by its very nature, hearsay is “an out of court statement offered to prove the truth of the matter asserted.” Thus, I would say the Supremes are making new law here. They seem to be creating a new privilege sort of like the spousal testimony privilege. But even that one has a piercing exception in the case of domestic violence. That’s what the Supremes should have done here instead; create an exception to allow the hearsay testimony when the victim ends up dead at the hand of the accused. So, lesson to criminals? Make sure you finish the job.

    (2) There is such a thing as hate speech that is not Constitutionally-protected. Part of the analysis of when something is hate speech is the venue in which it occurs. Why this would not count as hate speech in the particular venue of a family’s funeral is simply beyond the pale.

  • Jonathan

    And I like Pete’s idea about (2). What’s needed is more speech to drown out the bad speech.

  • Jonathan

    And I like Pete’s idea about (2). What’s needed is more speech to drown out the bad speech.

  • Tom Hering

    Do we really want to turn funerals into a spectacle of protesters and counter-protesters confronting one another? Not unless the deceased’s family asks for counter-protesters to be present.

  • Tom Hering

    Do we really want to turn funerals into a spectacle of protesters and counter-protesters confronting one another? Not unless the deceased’s family asks for counter-protesters to be present.

  • Joe

    The free speech case is just plain old fashioned correct. No doubt about it. Note – there was only one dissenting vote and his dissent is not that strong.

    I have not read the hearsay/dying declaration case – but in general the confrontation clause requires that the admission of an “out of court statements offered for the proof of the matter asserted when the declarant is unavailable at trial” (Federal Rule of Evidence 804) be subject to very strict scrutiny. By letting in the hearsay you are essentially saying that the particular facts of this case assure us that the statement is reliable despite the fact that the declarant is not here, the defendant doesn’t have the ability to cross-examine him and the jury will never have the ability to determine if they find him credible. That is a pretty significant thing to do and it should not be done lightly. Our system is built around the concept that the two parties will be able to present their cases too the jury and that the jury will be the ultimate authority on the facts of the case – including whether too believe testimony or how much weight to give to testimony. Cross examination is so fundamental to that system that it is enshrined in Constitution.

    “Conservatives are supposed to take the Constitution literally.”

    As I have mentioned here before I completely disagree with this statement. The method that best effectuates a conservative understanding of the Constitution is Originalism (which is not literalism – it is the task of understanding what the text meant at the time it was written). For example a literal reading of the First Amendment would not protect anything other than speech. Burning a flag would not be protected. I have tried to explain Originalism here in several prior threads and don’t have time to do so again, but if you are interested pick up Scalia’s book called “A Matter of Interpretation.” He has a section that lays out the methodology of Originalism and then there are responses from Larry Tribe, Gordon Wood, Mary Ann Glendon and Ronald Dworkin. Then a final reply from Scalia.

    This does an okay job of explaining the idea (note in this article divides Originalism into three types. The type most often used and adhered to by Scalia is “original meaning”).

    http://en.wikipedia.org/wiki/Originalism

  • Joe

    The free speech case is just plain old fashioned correct. No doubt about it. Note – there was only one dissenting vote and his dissent is not that strong.

    I have not read the hearsay/dying declaration case – but in general the confrontation clause requires that the admission of an “out of court statements offered for the proof of the matter asserted when the declarant is unavailable at trial” (Federal Rule of Evidence 804) be subject to very strict scrutiny. By letting in the hearsay you are essentially saying that the particular facts of this case assure us that the statement is reliable despite the fact that the declarant is not here, the defendant doesn’t have the ability to cross-examine him and the jury will never have the ability to determine if they find him credible. That is a pretty significant thing to do and it should not be done lightly. Our system is built around the concept that the two parties will be able to present their cases too the jury and that the jury will be the ultimate authority on the facts of the case – including whether too believe testimony or how much weight to give to testimony. Cross examination is so fundamental to that system that it is enshrined in Constitution.

    “Conservatives are supposed to take the Constitution literally.”

    As I have mentioned here before I completely disagree with this statement. The method that best effectuates a conservative understanding of the Constitution is Originalism (which is not literalism – it is the task of understanding what the text meant at the time it was written). For example a literal reading of the First Amendment would not protect anything other than speech. Burning a flag would not be protected. I have tried to explain Originalism here in several prior threads and don’t have time to do so again, but if you are interested pick up Scalia’s book called “A Matter of Interpretation.” He has a section that lays out the methodology of Originalism and then there are responses from Larry Tribe, Gordon Wood, Mary Ann Glendon and Ronald Dworkin. Then a final reply from Scalia.

    This does an okay job of explaining the idea (note in this article divides Originalism into three types. The type most often used and adhered to by Scalia is “original meaning”).

    http://en.wikipedia.org/wiki/Originalism

  • Joe

    I have read that motorcycle gangs (clubs?) such as the Hell’s Angels have shown up at some of these funerals (with the family’s permission) and created human barriers preventing the Westboro heretics from getting close enough to the funerals to effectively protest. Of course, the motorcyclists are just exercising their constitutional right to assemble.

  • Joe

    I have read that motorcycle gangs (clubs?) such as the Hell’s Angels have shown up at some of these funerals (with the family’s permission) and created human barriers preventing the Westboro heretics from getting close enough to the funerals to effectively protest. Of course, the motorcyclists are just exercising their constitutional right to assemble.

  • Joe

    Sorry – in my haste I have littered my comments with typos.

  • Joe

    Sorry – in my haste I have littered my comments with typos.

  • Mary

    Joe @ 10:

    They are called the Patriot Guard http://www.patriotguard.org/

  • Mary

    Joe @ 10:

    They are called the Patriot Guard http://www.patriotguard.org/

  • http://enterthevein.wordpress.com J. Dean

    I have to ask, regarding the first case: was there other evidence in addition to the man’s dying words that indicated this Rick fellow as a suspect?

    As for the second one, free speech is free speech. Yes, what these people from the church do is deplorable, even abominable. But the same free speech that protects them also protects the legitimate preaching of the gospel on Sunday morning. That’s the price of free speech; it’s free for everybody.

  • http://enterthevein.wordpress.com J. Dean

    I have to ask, regarding the first case: was there other evidence in addition to the man’s dying words that indicated this Rick fellow as a suspect?

    As for the second one, free speech is free speech. Yes, what these people from the church do is deplorable, even abominable. But the same free speech that protects them also protects the legitimate preaching of the gospel on Sunday morning. That’s the price of free speech; it’s free for everybody.

  • Phillip

    Natural law and the legal precedent of holding churches to the rules and doctrines of their denominations say the Supreme Court was wrong here. Also, the Constitution as it was before the 1960′s deal between Congress and the Court to ignore it for their mutual benefit says this is wrong. Scalia was right in both cases. The only problem is no one on the Court is competent enough in legal theory to know why Scalia was right. The biggest problem, though, is not either of these bad rulings but the fact that jurist doctorates don’t require a basic understanding of law. How can you expect competent decisions when no one on on the Court or arguing the case knows anything about law. A J.D. is a joke since it only requires memorizing a few cases and being able to do research. The academic standards for a baccalaureate are higher than those for a J.D. That’s the real problem.

  • Phillip

    Natural law and the legal precedent of holding churches to the rules and doctrines of their denominations say the Supreme Court was wrong here. Also, the Constitution as it was before the 1960′s deal between Congress and the Court to ignore it for their mutual benefit says this is wrong. Scalia was right in both cases. The only problem is no one on the Court is competent enough in legal theory to know why Scalia was right. The biggest problem, though, is not either of these bad rulings but the fact that jurist doctorates don’t require a basic understanding of law. How can you expect competent decisions when no one on on the Court or arguing the case knows anything about law. A J.D. is a joke since it only requires memorizing a few cases and being able to do research. The academic standards for a baccalaureate are higher than those for a J.D. That’s the real problem.

  • WebMonk

    The only problem is no one on the Court is competent enough in legal theory to know why Scalia was right.

    On the court, there are some of the best (by anyone’s standard) legal minds. They may disagree with each other, but they are definitely all top notch minds.

    And you say that none of them are even competent to understand Scalia’s dissent. I realize you’re passionate on the subject, or something, but stupid overstatements like that are useless at best.

    Not only that, but you got your cases crossed! Scalia didn’t dissent on the WBC case dealing with churches and speech – he dissented on the murder case ruling! Alito dissented in the WBC case. If you’re siding with the dissent on that case, you’re going against Scalia’s opinion – that person you said is so brilliant that no one else on the court could even understand his reasons.

    A J.D. is a joke since it only requires memorizing a few cases and being able to do research. The academic standards for a baccalaureate are higher than those for a J.D. That’s the real problem.

    Says the person who apparently has zero reading comprehension. Maybe you should go to classes at PHC – I’ve heard they are very good at teaching excellent reading comprehension and reasoning skills.

  • WebMonk

    The only problem is no one on the Court is competent enough in legal theory to know why Scalia was right.

    On the court, there are some of the best (by anyone’s standard) legal minds. They may disagree with each other, but they are definitely all top notch minds.

    And you say that none of them are even competent to understand Scalia’s dissent. I realize you’re passionate on the subject, or something, but stupid overstatements like that are useless at best.

    Not only that, but you got your cases crossed! Scalia didn’t dissent on the WBC case dealing with churches and speech – he dissented on the murder case ruling! Alito dissented in the WBC case. If you’re siding with the dissent on that case, you’re going against Scalia’s opinion – that person you said is so brilliant that no one else on the court could even understand his reasons.

    A J.D. is a joke since it only requires memorizing a few cases and being able to do research. The academic standards for a baccalaureate are higher than those for a J.D. That’s the real problem.

    Says the person who apparently has zero reading comprehension. Maybe you should go to classes at PHC – I’ve heard they are very good at teaching excellent reading comprehension and reasoning skills.

  • WebMonk

    J.Dean, you can see the basic facts of the Michigan v Bryant case here:

    http://topics.law.cornell.edu/supct/cert/09-150

    Remember, the SCOTUS isn’t ruling on whether or not the guy was actually guilty, but on the abstracted principal of whether or not the statement made by the deceased was a “testimony” in which case the accused had a right to face his accuser, or if it was a nontestimonial statement which is allowed to be mentioned in court without the original giver of the statement being present.

    The argument that prevailed was that the statement made by the deceased was a statement made as part of an ongoing emergency to help the police, not as part of a testimony given to provide evidence of a party’s guilt.

    As a nontestimonial statement, it is not given the weight of authority as a testimonial statement of guilt, but it is admissible in court as part of the recounting of events, and given whatever weight a description of events by police should be given.

  • WebMonk

    J.Dean, you can see the basic facts of the Michigan v Bryant case here:

    http://topics.law.cornell.edu/supct/cert/09-150

    Remember, the SCOTUS isn’t ruling on whether or not the guy was actually guilty, but on the abstracted principal of whether or not the statement made by the deceased was a “testimony” in which case the accused had a right to face his accuser, or if it was a nontestimonial statement which is allowed to be mentioned in court without the original giver of the statement being present.

    The argument that prevailed was that the statement made by the deceased was a statement made as part of an ongoing emergency to help the police, not as part of a testimony given to provide evidence of a party’s guilt.

    As a nontestimonial statement, it is not given the weight of authority as a testimonial statement of guilt, but it is admissible in court as part of the recounting of events, and given whatever weight a description of events by police should be given.

  • Pete

    Tom, @8, makes a great point. The bereaved family ought to have the call as to whether or not they want a counter-protest.

  • Pete

    Tom, @8, makes a great point. The bereaved family ought to have the call as to whether or not they want a counter-protest.

  • http://www.toddstadler.com/ tODD

    In addition to the bikers Joe mentioned (@10), there’s also the Angel Project, which, in theory, is a group of people wearing costumes designed to block the view of Westboro members.

    Of course, in my opinion, they’re only adding to the whole circus feel, not diminishing it. And their homemade bed-linens costumes don’t help. I’d think the costumes only draw as much attention to the Angel Project people as they would to any Westboro signs.

    It should also be noted — at least in this case, though I imagine it’s true elsewhere — that Westboro members weren’t literally at the funeral. They were near it, on public land 1000 feet away, in keeping with local law enforcement requests.

  • http://www.toddstadler.com/ tODD

    In addition to the bikers Joe mentioned (@10), there’s also the Angel Project, which, in theory, is a group of people wearing costumes designed to block the view of Westboro members.

    Of course, in my opinion, they’re only adding to the whole circus feel, not diminishing it. And their homemade bed-linens costumes don’t help. I’d think the costumes only draw as much attention to the Angel Project people as they would to any Westboro signs.

    It should also be noted — at least in this case, though I imagine it’s true elsewhere — that Westboro members weren’t literally at the funeral. They were near it, on public land 1000 feet away, in keeping with local law enforcement requests.

  • http://oldeship.blogspot.com Rick Davis

    The Constitution says, “Congress shall make no law … abridging the freedom of speech…” So far as I know Congress was not making any laws to prevent Westboro Baptist Church from protesting at funerals. An individual was suing Westboro Baptist Church in a civil suit under US common law for emotional damages. A strict reading of the Constitution would not necessarily require a common law court to refrain from awarding damages in a civil court. It would simply prevent Congress from making funeral protests a criminal act.

  • http://oldeship.blogspot.com Rick Davis

    The Constitution says, “Congress shall make no law … abridging the freedom of speech…” So far as I know Congress was not making any laws to prevent Westboro Baptist Church from protesting at funerals. An individual was suing Westboro Baptist Church in a civil suit under US common law for emotional damages. A strict reading of the Constitution would not necessarily require a common law court to refrain from awarding damages in a civil court. It would simply prevent Congress from making funeral protests a criminal act.

  • WebMonk

    tODD, WBC is definitely getting more skilled at their public behaviors.

    My favorite bit of asshattery from them recently is a “tiff” between them an Anonymous. I got a massive kick out of Anonymous hacking their websites DURING an interview with an Anonymous person and a WBC rep, immediately after the rep said no one could hack their site.

    Technical ineptitude aside, though, WBC is doing really well at what they are trying to do – get as much attention as possible while staying on the right side of the law.

  • WebMonk

    tODD, WBC is definitely getting more skilled at their public behaviors.

    My favorite bit of asshattery from them recently is a “tiff” between them an Anonymous. I got a massive kick out of Anonymous hacking their websites DURING an interview with an Anonymous person and a WBC rep, immediately after the rep said no one could hack their site.

    Technical ineptitude aside, though, WBC is doing really well at what they are trying to do – get as much attention as possible while staying on the right side of the law.

  • http://oldeship.blogspot.com Rick Davis

    replace “civil court” with “civil suit”
    oops.

  • http://oldeship.blogspot.com Rick Davis

    replace “civil court” with “civil suit”
    oops.

  • http://theoldadam.wordpress.com Steve Martin

    I think a group or groups should picket outside of the homes of the justices and use bullhorns and banners to tell them what idiots they are. And they could follow them as they tried to go out to dinner, and do the same thing to them.

    After several months of that, maybe the Supremes would get an idea of their ridiculous ruling.

  • http://theoldadam.wordpress.com Steve Martin

    I think a group or groups should picket outside of the homes of the justices and use bullhorns and banners to tell them what idiots they are. And they could follow them as they tried to go out to dinner, and do the same thing to them.

    After several months of that, maybe the Supremes would get an idea of their ridiculous ruling.

  • DonS

    1) The First Amendment WBC case is a slam dunk. It was correctly decided. Democracy is messy, and guaranteeing liberty to the citizens means some of them will use that liberty in very disagreeable ways.

    On the other hand, your rights only extend so far as they do not unreasonably interfere with the rights of another. That principle allows officials to impose reasonable time, space, and manner restrictions on free speech rights. The government manages to use these restrictions vigorously in singling about abortion clinic protesters for extraordinary time, space, and manner restrictions. It should do at least as much in singling out WBC.

    2) As for the Michigan v. Bryant case, this one is very interesting. There are established exceptions to the Confrontation Clause in our jurisprudence, namely the “excited utterance” and the “dying declaration”, as have been noted above. I have only skimmed the case, but the Court notes in a footnote that the dying declaration exception was not before them, because it was not raised by Michigan earlier in the proceedings. The footnote hints that they wish it had been an option. The theory behind permitting hearsay evidence under the “dying declaration” exception is that someone who knows they are dying is much less likely to lie, because they know they are about to meet their Maker, so their statements are more reliable. I suspect that it wasn’t before them because there was insufficient evidence that the victim knew he was dying. It appears from the record that his statement was punctuated by questions about when the paramedics were going to attend to him.

    So the case hinged on the “excited utterance” exception. Scalia’s dissent is focused on the facts of the record, which he says indicate that the victim’s statements don’t fall within that exception because both the victim and the police knew the emergency was over by the time the statements were made. The theory behind the “excited utterance” exception is that, when people are in the throes of an emergency, they utter truth, because the adrenaline and fear of harm do not permit them to manufacture credible lies. But the jurisprudence is pretty strict that the declarant must be in that immediate excited state when making the statement.

    Scalia objects, in particular, to what he describes as some pretty convoluted new rules for sorting out exceptions to the Confrontation Clause restrictions. The Court hates “bright line rules”, and loves convoluted “totality of the circumstances” considerations that really provide no guidance at all to those in similar future situations. Though I haven’t read the case carefully enough to be definitive, at first blush I think Scalia makes excellent points. This may be one where the majority voted with its heart and not its head.

  • DonS

    1) The First Amendment WBC case is a slam dunk. It was correctly decided. Democracy is messy, and guaranteeing liberty to the citizens means some of them will use that liberty in very disagreeable ways.

    On the other hand, your rights only extend so far as they do not unreasonably interfere with the rights of another. That principle allows officials to impose reasonable time, space, and manner restrictions on free speech rights. The government manages to use these restrictions vigorously in singling about abortion clinic protesters for extraordinary time, space, and manner restrictions. It should do at least as much in singling out WBC.

    2) As for the Michigan v. Bryant case, this one is very interesting. There are established exceptions to the Confrontation Clause in our jurisprudence, namely the “excited utterance” and the “dying declaration”, as have been noted above. I have only skimmed the case, but the Court notes in a footnote that the dying declaration exception was not before them, because it was not raised by Michigan earlier in the proceedings. The footnote hints that they wish it had been an option. The theory behind permitting hearsay evidence under the “dying declaration” exception is that someone who knows they are dying is much less likely to lie, because they know they are about to meet their Maker, so their statements are more reliable. I suspect that it wasn’t before them because there was insufficient evidence that the victim knew he was dying. It appears from the record that his statement was punctuated by questions about when the paramedics were going to attend to him.

    So the case hinged on the “excited utterance” exception. Scalia’s dissent is focused on the facts of the record, which he says indicate that the victim’s statements don’t fall within that exception because both the victim and the police knew the emergency was over by the time the statements were made. The theory behind the “excited utterance” exception is that, when people are in the throes of an emergency, they utter truth, because the adrenaline and fear of harm do not permit them to manufacture credible lies. But the jurisprudence is pretty strict that the declarant must be in that immediate excited state when making the statement.

    Scalia objects, in particular, to what he describes as some pretty convoluted new rules for sorting out exceptions to the Confrontation Clause restrictions. The Court hates “bright line rules”, and loves convoluted “totality of the circumstances” considerations that really provide no guidance at all to those in similar future situations. Though I haven’t read the case carefully enough to be definitive, at first blush I think Scalia makes excellent points. This may be one where the majority voted with its heart and not its head.

  • Dennis Peskey

    Case #1 – The issue in dispute centers on the Sixth Amendment and the application of the “confrontational clause” established by the Supreme Court in previous decisions. Under conditions of duress in given circumstances, “excited utterance” made during the initial inquiry at a crime scene may be admissible in latter trial proceeding if the statements were not made in direct response to criminal investigation.

    The Michigan Supreme Court ruled against Mr. Covington’s statement (he’s the guy laying on in the parking lot of the gas station with the bullet hole oozing blood) reasoning, upon arrival of the police and initial questioning, there existed “no ongoing emergency” (except the dying dude on the ground). The concept of
    “excited utterances” thereby was inapplicable due to the lack of criminal conduct occurring (other than the dude dying).

    The US SC overturned the MI SC’s decision favoring a perspective which indicated an “ongoing emergency” existed when the officers arrived and judging Mr. Covington to be in state where “excited utterances” would apply. Justice Scalia dissented with some rather strange reasoning.

    Regarding the concept of “ongoing emergency”, Scalia responded, “the threatening situation ended six blocks away and 25 minutes earlier when he (Covington) fled.” Hindsight vision is normally twenty-twenty; for a Detroit officer arriving at a gas station, three o’clock AM, man down – bleeding and dying – well, I doubt they concluded the emergency had passed. Nor would Mr. Covington have any reason to presume Mr. Bryant (Rick – the shooter) was not in the immediate vicinity with intent to finish what he had begun. I side with the police and the US SC – the truth would not be fully known for over a year. But at 3:00am, I would know only someone’s been shot; I don’t know why, the location of the shooter and how many may have been shot.

    As for the “excited utterance” Scalia states, “From Covington’s perspective, his statements had little value except to ensure the arrest and eventual prosecution of Richard Bryant.” I seriously question this interpretation of Scalia’s. Covington repeatedly asked “When will the EMS get here” to all the officers. He’s dying and he knows it; Scalia seems to credit Covington with a sole intent of ensuring Bryant’s arrest and prosecution. Does anyone else see this as absurd. All Covington wants is medical help; the police need information to establish whether a crime has been committed. I disagree strongly with Justice Scalia’s reasoning.

    Case #2 – The Westboro Baptist Church and traveling circus show. Did anyone catch the irony of the SC’s reference to the WBC as non-denominational? Last time I checked, the Baptist’s constituted a “denomination”. The First Amendment issue is not freedom of religion and it’s exercise – the issue is limited to the freedom of speech clause. While I do wholeheartedly (but reluctently) endorse WBC’s right to make fools of themselves (and unfortunately, all of Christianity as well), I can not agree with this 8-1 decision allowing this demonstration to proceed at a fallen Marine’s funeral.

    You only get one funeral folks (unless your named Lazarus with Mary and Martha as sisters). The prime consideration centered around whether LCpl Matthew Snyder’s father, Albert Snyder, had made the funeral a public affair as opposed to a private function. Mr. Snyder placed notification of the visitation and funeral proceedings in the local newspapers. Did this make it public? Mr. Snyder spoke with praise for his fallen son to the local media, TV and print. He lost his son in combat; that is newsworthy – but does this reporting make Mr. Snyder a “public official” with subsequent loss of the privacy protection afforded in the constitution. All two-thousand seats in the Roman Catholic church were filled for the funeral; did that make it public. I claim none of these factors justify the denial of Mr. Snyder’s right to privacy, especially when he is grieving the loss of his son. Before you dissent,bear in mind before you place an obituary for the loss of a loved one, or give testimony to a reporter about the wonderful deeds they accomplished, or have too many show up at the actual funeral; according to the SC’s decision, you’re private event has become a public affair and your now fair game for whatever nut wishes to inject their protest into a time of solemnity and reverence. WBC should catch the next tornado back to Kansas and spend time reflecting on Matt 5:21-26.
    Peace,
    Dennis

  • Dennis Peskey

    Case #1 – The issue in dispute centers on the Sixth Amendment and the application of the “confrontational clause” established by the Supreme Court in previous decisions. Under conditions of duress in given circumstances, “excited utterance” made during the initial inquiry at a crime scene may be admissible in latter trial proceeding if the statements were not made in direct response to criminal investigation.

    The Michigan Supreme Court ruled against Mr. Covington’s statement (he’s the guy laying on in the parking lot of the gas station with the bullet hole oozing blood) reasoning, upon arrival of the police and initial questioning, there existed “no ongoing emergency” (except the dying dude on the ground). The concept of
    “excited utterances” thereby was inapplicable due to the lack of criminal conduct occurring (other than the dude dying).

    The US SC overturned the MI SC’s decision favoring a perspective which indicated an “ongoing emergency” existed when the officers arrived and judging Mr. Covington to be in state where “excited utterances” would apply. Justice Scalia dissented with some rather strange reasoning.

    Regarding the concept of “ongoing emergency”, Scalia responded, “the threatening situation ended six blocks away and 25 minutes earlier when he (Covington) fled.” Hindsight vision is normally twenty-twenty; for a Detroit officer arriving at a gas station, three o’clock AM, man down – bleeding and dying – well, I doubt they concluded the emergency had passed. Nor would Mr. Covington have any reason to presume Mr. Bryant (Rick – the shooter) was not in the immediate vicinity with intent to finish what he had begun. I side with the police and the US SC – the truth would not be fully known for over a year. But at 3:00am, I would know only someone’s been shot; I don’t know why, the location of the shooter and how many may have been shot.

    As for the “excited utterance” Scalia states, “From Covington’s perspective, his statements had little value except to ensure the arrest and eventual prosecution of Richard Bryant.” I seriously question this interpretation of Scalia’s. Covington repeatedly asked “When will the EMS get here” to all the officers. He’s dying and he knows it; Scalia seems to credit Covington with a sole intent of ensuring Bryant’s arrest and prosecution. Does anyone else see this as absurd. All Covington wants is medical help; the police need information to establish whether a crime has been committed. I disagree strongly with Justice Scalia’s reasoning.

    Case #2 – The Westboro Baptist Church and traveling circus show. Did anyone catch the irony of the SC’s reference to the WBC as non-denominational? Last time I checked, the Baptist’s constituted a “denomination”. The First Amendment issue is not freedom of religion and it’s exercise – the issue is limited to the freedom of speech clause. While I do wholeheartedly (but reluctently) endorse WBC’s right to make fools of themselves (and unfortunately, all of Christianity as well), I can not agree with this 8-1 decision allowing this demonstration to proceed at a fallen Marine’s funeral.

    You only get one funeral folks (unless your named Lazarus with Mary and Martha as sisters). The prime consideration centered around whether LCpl Matthew Snyder’s father, Albert Snyder, had made the funeral a public affair as opposed to a private function. Mr. Snyder placed notification of the visitation and funeral proceedings in the local newspapers. Did this make it public? Mr. Snyder spoke with praise for his fallen son to the local media, TV and print. He lost his son in combat; that is newsworthy – but does this reporting make Mr. Snyder a “public official” with subsequent loss of the privacy protection afforded in the constitution. All two-thousand seats in the Roman Catholic church were filled for the funeral; did that make it public. I claim none of these factors justify the denial of Mr. Snyder’s right to privacy, especially when he is grieving the loss of his son. Before you dissent,bear in mind before you place an obituary for the loss of a loved one, or give testimony to a reporter about the wonderful deeds they accomplished, or have too many show up at the actual funeral; according to the SC’s decision, you’re private event has become a public affair and your now fair game for whatever nut wishes to inject their protest into a time of solemnity and reverence. WBC should catch the next tornado back to Kansas and spend time reflecting on Matt 5:21-26.
    Peace,
    Dennis

  • WebMonk

    Last time I checked, the Baptist’s constituted a “denomination”.

    Dennis, there is no such thing as the Baptist denomination. There are denominations and individual churches which use the word Baptist, but there’s no such thing as the Baptist denomination.

    There is the Southern Baptist Convention denomination, the Landmark Baptist denom, and a hundred others including the Two-Seed-in-the-Spirit Predestinarian Baptist denomination. What you won’t find is the Baptist denomination.

    “Baptist” is an adjective, not a denomination. (yes, I know there are uses of the word “baptist” as a noun, but not when you’re talking of a particular denomination)

  • WebMonk

    Last time I checked, the Baptist’s constituted a “denomination”.

    Dennis, there is no such thing as the Baptist denomination. There are denominations and individual churches which use the word Baptist, but there’s no such thing as the Baptist denomination.

    There is the Southern Baptist Convention denomination, the Landmark Baptist denom, and a hundred others including the Two-Seed-in-the-Spirit Predestinarian Baptist denomination. What you won’t find is the Baptist denomination.

    “Baptist” is an adjective, not a denomination. (yes, I know there are uses of the word “baptist” as a noun, but not when you’re talking of a particular denomination)

  • MikeD

    So imagine the court scene when the prosecutor says, “What did he tell you?” The person who heard the allegation in the first place says, “He said, ‘Rick shot me.’” I’m no legal expert, but isn’t that hearsay? In fact, what all the authority comes down to is the word of an eye witness to the word of the eye witness. Seems like this is one of those cases, granting that Rick really was the shooter, that we do not allow the testimony and pray that God would sort it out. Sort of like keeping the death penalty even though we know that, unfortunately, there have been innocent folk punished unjustly.

  • MikeD

    So imagine the court scene when the prosecutor says, “What did he tell you?” The person who heard the allegation in the first place says, “He said, ‘Rick shot me.’” I’m no legal expert, but isn’t that hearsay? In fact, what all the authority comes down to is the word of an eye witness to the word of the eye witness. Seems like this is one of those cases, granting that Rick really was the shooter, that we do not allow the testimony and pray that God would sort it out. Sort of like keeping the death penalty even though we know that, unfortunately, there have been innocent folk punished unjustly.

  • Dennis Peskey

    Webmonk – You have me at a loss of understanding. I am Lutheran which is to say, both an adjective, a noun and a denomination. What does this mean (a particulary lutheran phrase) to say they are a Baptist, if anything. In lutheran terminology, what does a Baptist believe, teach and/or confess to make them Baptist?
    Peace,
    Dennis

  • Dennis Peskey

    Webmonk – You have me at a loss of understanding. I am Lutheran which is to say, both an adjective, a noun and a denomination. What does this mean (a particulary lutheran phrase) to say they are a Baptist, if anything. In lutheran terminology, what does a Baptist believe, teach and/or confess to make them Baptist?
    Peace,
    Dennis

  • MacPhee

    Based simply on the facts of the cases as laid out on this blog, deciding them are easy using this rubric:

    Follow the literal text, in context, and when the meaning is unclear, use the original meaning/understanding of those that wrote, debated, and ratified the text.

    And the texts of the First and Sixth Amendments are perfectly clear and unambiguous.

    Case #1: Supreme Court fail

    Case #2: Supreme Court win

  • MacPhee

    Based simply on the facts of the cases as laid out on this blog, deciding them are easy using this rubric:

    Follow the literal text, in context, and when the meaning is unclear, use the original meaning/understanding of those that wrote, debated, and ratified the text.

    And the texts of the First and Sixth Amendments are perfectly clear and unambiguous.

    Case #1: Supreme Court fail

    Case #2: Supreme Court win

  • WebMonk

    Dennis, ahh, I think I get you now. You don’t mean the word denomination to refer to a particular organization but rather a certain type of belief to which a lot of organizations may ascribe.

    Ok. My misunderstanding.

  • WebMonk

    Dennis, ahh, I think I get you now. You don’t mean the word denomination to refer to a particular organization but rather a certain type of belief to which a lot of organizations may ascribe.

    Ok. My misunderstanding.

  • http://www.oldsolar.com/currentblog.php Rick Ritchie

    First off, I didn’t do it.

    As to the second case, I think they got it right.

    I disagree with those who focus on countering bad speech with good, for reasons already cited above. A funeral should not be a shouting fest.

    As a libertarian, I always suspect that part of what got us into the mess we’re in is bad government. I will suggest that too much public property makes it difficult to be able to get away from those who might engage in this kind of activity. If enough land were private, you could easily find somewhere to conduct a funeral where you wouldn’t have to hear protesters. As it is, government has created the possibility of a nuisance that would not exist under less regulated conditions. So while the Supreme Court gave a good judgment, I still think the outcome is bad. Though I would suggest that those who plan such funerals might still find venues out of the reach of the protesters. It might be worth coming up with a list of venues where the risk of exposure is minimized.

  • http://www.oldsolar.com/currentblog.php Rick Ritchie

    First off, I didn’t do it.

    As to the second case, I think they got it right.

    I disagree with those who focus on countering bad speech with good, for reasons already cited above. A funeral should not be a shouting fest.

    As a libertarian, I always suspect that part of what got us into the mess we’re in is bad government. I will suggest that too much public property makes it difficult to be able to get away from those who might engage in this kind of activity. If enough land were private, you could easily find somewhere to conduct a funeral where you wouldn’t have to hear protesters. As it is, government has created the possibility of a nuisance that would not exist under less regulated conditions. So while the Supreme Court gave a good judgment, I still think the outcome is bad. Though I would suggest that those who plan such funerals might still find venues out of the reach of the protesters. It might be worth coming up with a list of venues where the risk of exposure is minimized.

  • WebMonk

    Rich, that is certainly something that at least some cemeteries are already doing. Obviously they cost a lot more and are not always available in a particular location.

    Those places may start becoming more popular should WBC start expanding somehow.

  • WebMonk

    Rich, that is certainly something that at least some cemeteries are already doing. Obviously they cost a lot more and are not always available in a particular location.

    Those places may start becoming more popular should WBC start expanding somehow.

  • http://takethestand.net Andrew DeLoach

    re: @Phillip: “jurist doctorates don’t require a basic understanding of law. … A J.D. is a joke since it only requires memorizing a few cases and being able to do research.” First of all, it’s juris, not jurist. Second, I’m assuming you’ve not gone to law school and do not have a J.D., and therefore, are rather ignorant about what it takes to get one. It requires far beyond basic apprehension of the law, and memorizing 2,000 cases won’t cut it. I know, because I’ve done it.

    All due respect to Dr. Veith, saying that the Court favored or disfavored a “literal reading of the Constitution” is drastically simplistic. A literal reading would entail considering nothing but that which exists within the four corners of the document itself. In that case, the Court would only consider the words of the First and Sixth Amendments. But of course, our Courts rely also on jurisprudence, which is the long and often complex line of cases that relate to the Court’s continuing evaluation of the Constitution, here, the First and Sixth Amendments. And that understanding is vital to the present discussion of whether the Court, in considering these two cases, actually followed their Constitutional jurisprudence, or not.

    With respect to Michigan v. Bryant, one important note, at the outset. @Don in Comment #23, if I may correct you: “dying declaration” and “excited utterance” are NOT exceptions to the Confrontation Clause; they are exceptions to the Hearsay rule. The Hearsay rule is purely a creature of evidence law (and varies from state to state). It is not a Constitutional rule. Thus, the Court’s decision did not hinge on the “excited utterance” exception. Neither did Scalia’s Dissent concern this hearsay exception.

    The Confrontation Clause jurisprudence is much less established or defined than that for First Amended protected speech. Prior to 2004, Confrontation Clause analysis was for some time improperly focused on examining the reliability of statements. But in 2004, in Crawford v. Washington, the Court corrected this analysis to conform with what it felt was true to the intent of the Framers (the Opinion written, ironically or not, by Scalia). The Court explained:

    Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to … amorphous notions of “reliability.” Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.

    It then held:

    Reliability is an amorphous, if not entirely subjective, concept. There are countless factors bearing on whether a statement is reliable. … Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.

    Two years later, the Court expanded on the meaning of “testimonial” statements, in Davis v. Washington.

    At issue in Michigan v. Bryant was whether the declarant/victim’s statement was testimonial or non-testimonial. That’s what the case is all about. According to Crawford and Davis, a statement is testimonial where circumstances objectively indicate that the primary purpose of the interrogation is to establish past events potentially relevant to future prosecution. But a statement is non-testimonial where circumstances objectively indicate that the statement is a cry for help or giving of information to help police immediately end a ongoing threat or emergency. Simply put, it turns on whether the statement is made to learn about what happened in the past (testimonial) or to resolve a present emergency (non-testimonial).

    What Justice Sotomayor’s majority opinion does, as explained by Justice Scalia’s Dissent, is effectively reverse the Crawford and Davis cases. This is done in two ways: factually and legally. Factually, the Court wrongfully considered the declarant’s AND the police officers’ intent in the interrogation, rather than solely the declarant’s intent. (Dissent, p. 3) As Scalia explains, “Looking at the Declarant’s purpose (as we should), this is an absurdly easy case. … From [his] perspective, his statements had little value except to secure the arrest and eventual prosecution of Richard Bryant.” Scalia goes on to point out that even if they considered the Officers’ intent, it’s still an easy case. This statement was not intended by the declarant, or understood by the police, as an attempt to help end an ongoing threat (e.g. that Bryant was still out the, roaming around on a shooting spree); rather, it was to inform the police of what happened in the past so that Bryant could be arrested and prosecuted. The other factual problem with the Majority opinion is that it creates an arbitrary set of circumstances that qualifies as “an ongoing emergency.”

    Legally, the Majority upends its own jurisprudence by reverting to a reliability analysis. Scalia points out that this implicitly imports the excited utterance exception into the Constitution, because “the prospect of fabrication … is presumably significantly diminished” so it does not need to be subjected to “the crucible of cross-examination.” Now consider the quote from Crawford above: “the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”

    So, Scalia is quite right that the Court has erred by reverting back to the arbitrary analysis of amorphous “reliability.” But I wouldn’t say that they were governed more by common sense than a strict reading of the Constitution; or, at least, I’m not confident that the Court would agree with that. I think the Majority plainly indicates that it believes this holding to be in accord with Confrontation Clause jurisprudence. But I agree with Scalia here that, both factually and legally, the Majority is effectively reversing those prior decisions.

  • http://takethestand.net Andrew DeLoach

    re: @Phillip: “jurist doctorates don’t require a basic understanding of law. … A J.D. is a joke since it only requires memorizing a few cases and being able to do research.” First of all, it’s juris, not jurist. Second, I’m assuming you’ve not gone to law school and do not have a J.D., and therefore, are rather ignorant about what it takes to get one. It requires far beyond basic apprehension of the law, and memorizing 2,000 cases won’t cut it. I know, because I’ve done it.

    All due respect to Dr. Veith, saying that the Court favored or disfavored a “literal reading of the Constitution” is drastically simplistic. A literal reading would entail considering nothing but that which exists within the four corners of the document itself. In that case, the Court would only consider the words of the First and Sixth Amendments. But of course, our Courts rely also on jurisprudence, which is the long and often complex line of cases that relate to the Court’s continuing evaluation of the Constitution, here, the First and Sixth Amendments. And that understanding is vital to the present discussion of whether the Court, in considering these two cases, actually followed their Constitutional jurisprudence, or not.

    With respect to Michigan v. Bryant, one important note, at the outset. @Don in Comment #23, if I may correct you: “dying declaration” and “excited utterance” are NOT exceptions to the Confrontation Clause; they are exceptions to the Hearsay rule. The Hearsay rule is purely a creature of evidence law (and varies from state to state). It is not a Constitutional rule. Thus, the Court’s decision did not hinge on the “excited utterance” exception. Neither did Scalia’s Dissent concern this hearsay exception.

    The Confrontation Clause jurisprudence is much less established or defined than that for First Amended protected speech. Prior to 2004, Confrontation Clause analysis was for some time improperly focused on examining the reliability of statements. But in 2004, in Crawford v. Washington, the Court corrected this analysis to conform with what it felt was true to the intent of the Framers (the Opinion written, ironically or not, by Scalia). The Court explained:

    Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to … amorphous notions of “reliability.” Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.

    It then held:

    Reliability is an amorphous, if not entirely subjective, concept. There are countless factors bearing on whether a statement is reliable. … Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.

    Two years later, the Court expanded on the meaning of “testimonial” statements, in Davis v. Washington.

    At issue in Michigan v. Bryant was whether the declarant/victim’s statement was testimonial or non-testimonial. That’s what the case is all about. According to Crawford and Davis, a statement is testimonial where circumstances objectively indicate that the primary purpose of the interrogation is to establish past events potentially relevant to future prosecution. But a statement is non-testimonial where circumstances objectively indicate that the statement is a cry for help or giving of information to help police immediately end a ongoing threat or emergency. Simply put, it turns on whether the statement is made to learn about what happened in the past (testimonial) or to resolve a present emergency (non-testimonial).

    What Justice Sotomayor’s majority opinion does, as explained by Justice Scalia’s Dissent, is effectively reverse the Crawford and Davis cases. This is done in two ways: factually and legally. Factually, the Court wrongfully considered the declarant’s AND the police officers’ intent in the interrogation, rather than solely the declarant’s intent. (Dissent, p. 3) As Scalia explains, “Looking at the Declarant’s purpose (as we should), this is an absurdly easy case. … From [his] perspective, his statements had little value except to secure the arrest and eventual prosecution of Richard Bryant.” Scalia goes on to point out that even if they considered the Officers’ intent, it’s still an easy case. This statement was not intended by the declarant, or understood by the police, as an attempt to help end an ongoing threat (e.g. that Bryant was still out the, roaming around on a shooting spree); rather, it was to inform the police of what happened in the past so that Bryant could be arrested and prosecuted. The other factual problem with the Majority opinion is that it creates an arbitrary set of circumstances that qualifies as “an ongoing emergency.”

    Legally, the Majority upends its own jurisprudence by reverting to a reliability analysis. Scalia points out that this implicitly imports the excited utterance exception into the Constitution, because “the prospect of fabrication … is presumably significantly diminished” so it does not need to be subjected to “the crucible of cross-examination.” Now consider the quote from Crawford above: “the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”

    So, Scalia is quite right that the Court has erred by reverting back to the arbitrary analysis of amorphous “reliability.” But I wouldn’t say that they were governed more by common sense than a strict reading of the Constitution; or, at least, I’m not confident that the Court would agree with that. I think the Majority plainly indicates that it believes this holding to be in accord with Confrontation Clause jurisprudence. But I agree with Scalia here that, both factually and legally, the Majority is effectively reversing those prior decisions.

  • Joe

    “Those places may start becoming more popular should WBC start expanding somehow.”

    I beleive I read that the entire congregation is related to the “pastor.” I know that the attorney who argued the case is his daughter.

  • Joe

    “Those places may start becoming more popular should WBC start expanding somehow.”

    I beleive I read that the entire congregation is related to the “pastor.” I know that the attorney who argued the case is his daughter.

  • http://www.oldsolar.com/currentblog.php Rick Ritchie

    WebMonk, I agree. But this also points out the problem that governmental one-size-fits-all solutions like sidewalks create. Since we do have somewhat of a market economy, the market can begin addressing this, now that it’s clear. I expect that this will be less of a problem in the future. But I think perhaps cities need to consider whether privatizing some sidewalks so that it is easier to get away from public space might be a good idea. (Plus, financially-strapped cities might make some money from the proposal.)

  • http://www.oldsolar.com/currentblog.php Rick Ritchie

    WebMonk, I agree. But this also points out the problem that governmental one-size-fits-all solutions like sidewalks create. Since we do have somewhat of a market economy, the market can begin addressing this, now that it’s clear. I expect that this will be less of a problem in the future. But I think perhaps cities need to consider whether privatizing some sidewalks so that it is easier to get away from public space might be a good idea. (Plus, financially-strapped cities might make some money from the proposal.)

  • http://www.toddstadler.com/ tODD

    Steve (@22), it’s clear you’re upset with the Westboro decision, but you haven’t actually articulated why.

    All you’ve done is imply that one’s unhindered free speech rights extend onto the private property of Supreme Court justices and the places they eat. Pretty certain that’s not true, and that anyone — Westboro member or someone upset about Westboro members, alike — trying that would actually face legal repercussions. And rightly so.

    DonS (@23) said:

    The government manages to use these restrictions vigorously in singling about abortion clinic protesters for extraordinary time, space, and manner restrictions. It should do at least as much in singling out WBC.

    Are you saying that the abortion-clinic protesters are subjected to speech restrictions that are more restrictive than what Westboro members faced? Or are you saying the restrictions are “extraordinary” in both cases?

    Also, any reason you didn’t also mention so-called “free speech zones”, far away from the President, where protesters with signs criticizing the President are allowed to gather, out of his sight (while those with supportive signs are allowed much closer)?

    Dennis (@24), asked, “Did anyone catch the irony of the SC’s reference to the WBC as non-denominational?” Um, no. I can’t find any reference to “denomination” in the opinion. To what are you referring?

    Also, Dennis, I disagree with your reading (the “prime consideration” being whether the funeral was “a public affair”). That wasn’t at issue. What was at issue was (1) whether the protest was taking place on public property (it was) and (2) the content of the protest focused on topics of public concern, not merely personal antagonism (it did).

    If you want to exclude the possibility of the public saying something you don’t like at someone’s funeral, you will need to hold that funeral in a place far from where the public is legally allowed to peacefully congregate.

  • http://www.toddstadler.com/ tODD

    Steve (@22), it’s clear you’re upset with the Westboro decision, but you haven’t actually articulated why.

    All you’ve done is imply that one’s unhindered free speech rights extend onto the private property of Supreme Court justices and the places they eat. Pretty certain that’s not true, and that anyone — Westboro member or someone upset about Westboro members, alike — trying that would actually face legal repercussions. And rightly so.

    DonS (@23) said:

    The government manages to use these restrictions vigorously in singling about abortion clinic protesters for extraordinary time, space, and manner restrictions. It should do at least as much in singling out WBC.

    Are you saying that the abortion-clinic protesters are subjected to speech restrictions that are more restrictive than what Westboro members faced? Or are you saying the restrictions are “extraordinary” in both cases?

    Also, any reason you didn’t also mention so-called “free speech zones”, far away from the President, where protesters with signs criticizing the President are allowed to gather, out of his sight (while those with supportive signs are allowed much closer)?

    Dennis (@24), asked, “Did anyone catch the irony of the SC’s reference to the WBC as non-denominational?” Um, no. I can’t find any reference to “denomination” in the opinion. To what are you referring?

    Also, Dennis, I disagree with your reading (the “prime consideration” being whether the funeral was “a public affair”). That wasn’t at issue. What was at issue was (1) whether the protest was taking place on public property (it was) and (2) the content of the protest focused on topics of public concern, not merely personal antagonism (it did).

    If you want to exclude the possibility of the public saying something you don’t like at someone’s funeral, you will need to hold that funeral in a place far from where the public is legally allowed to peacefully congregate.

  • Phillip

    WebMonk, you’re right, I switched Alito and Scalia.

    The Supreme Court is not the best legal minds in the world. Even when I agree with the outcome they’re reasoning is patently stupid. If you read the opinions they issue you’ll see how nonsensical and stupid they are. Their opinions are rarely internally coherent and are filled with logical fallacies and legal contradictions. At least Justice Black had the decency to admit the Court made everything up! Their are no legal theorists on the Court, only people with Ivy League degrees. Not one of them is competent to discuss legal theory. None of them act as though they’ve even read about it. We need students of Holmes, Hart, Fuller, Grissez and Finnis, MacIntyre, Hittinger, Bourke, and other real legal scholars to be making these decisions, not the incompetents on the bench now. None of them have business advising a city council on legal theory, much less ruling definitively on U. S. laws.

  • Phillip

    WebMonk, you’re right, I switched Alito and Scalia.

    The Supreme Court is not the best legal minds in the world. Even when I agree with the outcome they’re reasoning is patently stupid. If you read the opinions they issue you’ll see how nonsensical and stupid they are. Their opinions are rarely internally coherent and are filled with logical fallacies and legal contradictions. At least Justice Black had the decency to admit the Court made everything up! Their are no legal theorists on the Court, only people with Ivy League degrees. Not one of them is competent to discuss legal theory. None of them act as though they’ve even read about it. We need students of Holmes, Hart, Fuller, Grissez and Finnis, MacIntyre, Hittinger, Bourke, and other real legal scholars to be making these decisions, not the incompetents on the bench now. None of them have business advising a city council on legal theory, much less ruling definitively on U. S. laws.

  • DonS

    Andrew @ 32: Thank you for the clarification. I shortcutted the legal analysis a bit because this is a Lutheran blog, not a legal blog, recognizing that the evidence rules derive from the Constitutional guarantee of the right to face one’s accuser. But your explanation is more technically correct, and the issue, in Scalia’s mind was that the victim’s statement was testimonial, not an excited utterance.

    I think we agree on the soundness of Scalia’s dissent however.

  • DonS

    Andrew @ 32: Thank you for the clarification. I shortcutted the legal analysis a bit because this is a Lutheran blog, not a legal blog, recognizing that the evidence rules derive from the Constitutional guarantee of the right to face one’s accuser. But your explanation is more technically correct, and the issue, in Scalia’s mind was that the victim’s statement was testimonial, not an excited utterance.

    I think we agree on the soundness of Scalia’s dissent however.

  • Dennis Peskey

    I do believe, teach and confess the frustration of a layman attempting to comprehend a Supreme Court decision. The only thing more frustrating is grasping the nuance of a lawyer’s explanation of the decision. For me and my household, I shall stick to “lex semper accusat” and trust in the Lord to provide a good lawyer.

    Unfortunately, Dr. Veith limited this discussion to our constitutional understanding regarding these issues. I would so like to address the second issue biblically (which, I perceive, is where the real problem lies) but that would be out-of-bounds from the framing of this post.
    Peace,
    Dennis

  • Dennis Peskey

    I do believe, teach and confess the frustration of a layman attempting to comprehend a Supreme Court decision. The only thing more frustrating is grasping the nuance of a lawyer’s explanation of the decision. For me and my household, I shall stick to “lex semper accusat” and trust in the Lord to provide a good lawyer.

    Unfortunately, Dr. Veith limited this discussion to our constitutional understanding regarding these issues. I would so like to address the second issue biblically (which, I perceive, is where the real problem lies) but that would be out-of-bounds from the framing of this post.
    Peace,
    Dennis

  • http://www.redeemedrambling.blogspot.com/ John

    I agree with the dissent in the Westboro case. Westboro should be allowed to express their views, but they are doing so in a way that is intentionally hurtful during a time of emotional distress for the family. There are other ways to communicate, but their purpose is more than simple communication.

  • http://www.redeemedrambling.blogspot.com/ John

    I agree with the dissent in the Westboro case. Westboro should be allowed to express their views, but they are doing so in a way that is intentionally hurtful during a time of emotional distress for the family. There are other ways to communicate, but their purpose is more than simple communication.

  • WebMonk

    Phillip 36, so Alito is the genius who the rest of the court is too simple and ignorant to comprehend? Oh, wait. That can’t be. You said that they’re all idiot and morons, full of logical inconsistencies, etc. Hey! Speaking of inconsistencies, I think I just found one!

    Oh, and should we start looking at the decisions written by Alito as our guide to what proper legal decisions look like? I’ve read hundreds of SCOTUS decisions, and am VERY sure you don’t want to hang your hat on Alito as your golden boy genius who writes blindingly brilliant decisions — you won’t like a lot of them.

  • WebMonk

    Phillip 36, so Alito is the genius who the rest of the court is too simple and ignorant to comprehend? Oh, wait. That can’t be. You said that they’re all idiot and morons, full of logical inconsistencies, etc. Hey! Speaking of inconsistencies, I think I just found one!

    Oh, and should we start looking at the decisions written by Alito as our guide to what proper legal decisions look like? I’ve read hundreds of SCOTUS decisions, and am VERY sure you don’t want to hang your hat on Alito as your golden boy genius who writes blindingly brilliant decisions — you won’t like a lot of them.

  • DonS

    tODD @ 35: I think the abortion protest issue is a better analogy than the “free speech zone” issue to the WBC case. That’s why I cited it as an example. The free speech zones are partially tied into the argument that presidents need extraordinary levels of protection which the Secret Service uses to justify keeping protesters at a great distance from him. Nothing is codified, and there isn’t much of a legal remedy that the protesters can pursue. It’s just life in modern America, like it or not.

    On the other hand, there are special statutes in a number of states singling out abortion protesters for extraordinary speech restrictions, and a federal statute (FACE) as well (http://www.cas.sc.edu/socy/faculty/deflem/zFACEency.html). These statutes have been upheld by the courts (wrongfully, in my opinion) on the basis that because women have a “fundamental constitutional right” to kill their unborn babies, they must be allowed sufficient access to the entrances of places where that can be accomplished.

    A compassionate Congress should try to draft a suitable statute to provide some reasonable guaranteed space for grieving military families. That’s not too much to ask.

  • DonS

    tODD @ 35: I think the abortion protest issue is a better analogy than the “free speech zone” issue to the WBC case. That’s why I cited it as an example. The free speech zones are partially tied into the argument that presidents need extraordinary levels of protection which the Secret Service uses to justify keeping protesters at a great distance from him. Nothing is codified, and there isn’t much of a legal remedy that the protesters can pursue. It’s just life in modern America, like it or not.

    On the other hand, there are special statutes in a number of states singling out abortion protesters for extraordinary speech restrictions, and a federal statute (FACE) as well (http://www.cas.sc.edu/socy/faculty/deflem/zFACEency.html). These statutes have been upheld by the courts (wrongfully, in my opinion) on the basis that because women have a “fundamental constitutional right” to kill their unborn babies, they must be allowed sufficient access to the entrances of places where that can be accomplished.

    A compassionate Congress should try to draft a suitable statute to provide some reasonable guaranteed space for grieving military families. That’s not too much to ask.

  • http://www.oldsolar.com/currentblog.php Rick Ritchie

    I saw a recent C-Span special in the Supreme Court where they interviewed all the living Justices, currently serving or retired. One point they all made in common was that they don’t take cases in order to give justice to the one case. They take cases in order to clarify law that seems to be unclear to people.

    In reading this case now, one point that comes across strongly is that the speech was protected because it was of a public nature, and on subjects that were much broader than the funeral in question. It also seems to be accepted that the intended audience was the public, rather than the fallen soldier’s father. His distress, which was grievous, only occurred after the funeral was over when he started to view coverage on TV and on the internet. So this is not about whether a funeral can be disrupted. It was over whether certain kinds of public speech are automatically protected by the First Amendment. In this case, the venue of the speech is secondary, as the venue was not what subjected Snyder to contact with the speech he saw and heard on TV. The internet content was not included in the lawsuit. I’d be interested to know how that suit would have gone, as that was more narrowly targeted at Snyder’s son, whereas the signs were more general.

  • http://www.oldsolar.com/currentblog.php Rick Ritchie

    I saw a recent C-Span special in the Supreme Court where they interviewed all the living Justices, currently serving or retired. One point they all made in common was that they don’t take cases in order to give justice to the one case. They take cases in order to clarify law that seems to be unclear to people.

    In reading this case now, one point that comes across strongly is that the speech was protected because it was of a public nature, and on subjects that were much broader than the funeral in question. It also seems to be accepted that the intended audience was the public, rather than the fallen soldier’s father. His distress, which was grievous, only occurred after the funeral was over when he started to view coverage on TV and on the internet. So this is not about whether a funeral can be disrupted. It was over whether certain kinds of public speech are automatically protected by the First Amendment. In this case, the venue of the speech is secondary, as the venue was not what subjected Snyder to contact with the speech he saw and heard on TV. The internet content was not included in the lawsuit. I’d be interested to know how that suit would have gone, as that was more narrowly targeted at Snyder’s son, whereas the signs were more general.

  • Dennis Peskey

    tODD – My bad. The brief where this comment was made was http://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_09_10_09_751_Respondent.pdf (the respondent brief filed on behalf of Pastor Phelps. In it, they stated, “Meanwhile, in May 1990, WBC, a small nondenominational independent Bible-believing flock in Topeka, Kansas (since 1955), began a modest streetpreaching ministry because of notorious homosexual activity in the bushes at a nearby public park.

    I would counter your disagreement with my “public vs private” assessment by citing Justice Alito’s dissent (lone) which focuses solely on the violation of Albert Snyder’s right to privacy as an individual. The majority held to Mr. Snyder’s loss of private standing by the actions he took publicing the funeral and speaking to the press regarding his son. I concur with Alito that the WBC could protest in public forums as that organization did that very day at the Maryland legislature and the U.S. Naval Academy, but the funeral of LCpl Snyder was private and deserving of respect and reverence – or we risk losing all respect for the dead.
    Peace,
    Dennis

  • Dennis Peskey

    tODD – My bad. The brief where this comment was made was http://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_09_10_09_751_Respondent.pdf (the respondent brief filed on behalf of Pastor Phelps. In it, they stated, “Meanwhile, in May 1990, WBC, a small nondenominational independent Bible-believing flock in Topeka, Kansas (since 1955), began a modest streetpreaching ministry because of notorious homosexual activity in the bushes at a nearby public park.

    I would counter your disagreement with my “public vs private” assessment by citing Justice Alito’s dissent (lone) which focuses solely on the violation of Albert Snyder’s right to privacy as an individual. The majority held to Mr. Snyder’s loss of private standing by the actions he took publicing the funeral and speaking to the press regarding his son. I concur with Alito that the WBC could protest in public forums as that organization did that very day at the Maryland legislature and the U.S. Naval Academy, but the funeral of LCpl Snyder was private and deserving of respect and reverence – or we risk losing all respect for the dead.
    Peace,
    Dennis

  • Porcell

    Regarding Snyder v Phelps et al, I found Justice Alito’s opinion the most compelling. Freedom of speech is not an absolute right.

    Some of Alito’s points are as follows:

    Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.

    Mr. Snyder wanted what is surely the right of any parent who experiences such anincalculable loss: to bury his son in peace.

    It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a timeof intense emotional sensitivity by launching vicious ver-bal attacks that make no contribution to public debate. To protect against such injury

    This fellow Phelps and his followers are extremely crude and vicious moralists who are an embarrassment to the Christian religion. They represent the opposite of Christian grace.

    I should suggest that Alito’s opinion SNYDER v. PHELPS ALITO, J., dissenting at page 14 is well worth reading. Alito is a very bright Princeton, Yale Law graduate with considerable knowledge and experience of constitutional law.WebMonk’s denigration of him is asserted, though far from proved.

  • Porcell

    Regarding Snyder v Phelps et al, I found Justice Alito’s opinion the most compelling. Freedom of speech is not an absolute right.

    Some of Alito’s points are as follows:

    Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.

    Mr. Snyder wanted what is surely the right of any parent who experiences such anincalculable loss: to bury his son in peace.

    It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a timeof intense emotional sensitivity by launching vicious ver-bal attacks that make no contribution to public debate. To protect against such injury

    This fellow Phelps and his followers are extremely crude and vicious moralists who are an embarrassment to the Christian religion. They represent the opposite of Christian grace.

    I should suggest that Alito’s opinion SNYDER v. PHELPS ALITO, J., dissenting at page 14 is well worth reading. Alito is a very bright Princeton, Yale Law graduate with considerable knowledge and experience of constitutional law.WebMonk’s denigration of him is asserted, though far from proved.

  • http://www.oldsolar.com/currentblog.php Rick Ritchie

    When Alito mentions vicious verbal assault, I’m unclear as to what particular incident he has in mind. The majority opinion mentions a set of circumstances where all that Mr. Snyder saw was the tops of their signs. The contact that inflicted the distress was over television. When it is listed all the other places they might have held their protests, I don’t see how that would change the nature of the case. For if these protests had occurred elsewhere and then been seen on television, the same distress would probably follow.

    For me the more interesting question is about the signs. The majority see them being about something other than Matthew Snyder, as they have been carried elsewhere. Justice Alito, in contrast, points out that a reasonable onlooker would naturally think they were all about Matthew Snyder. How do we determine what a sign is really about?

  • http://www.oldsolar.com/currentblog.php Rick Ritchie

    When Alito mentions vicious verbal assault, I’m unclear as to what particular incident he has in mind. The majority opinion mentions a set of circumstances where all that Mr. Snyder saw was the tops of their signs. The contact that inflicted the distress was over television. When it is listed all the other places they might have held their protests, I don’t see how that would change the nature of the case. For if these protests had occurred elsewhere and then been seen on television, the same distress would probably follow.

    For me the more interesting question is about the signs. The majority see them being about something other than Matthew Snyder, as they have been carried elsewhere. Justice Alito, in contrast, points out that a reasonable onlooker would naturally think they were all about Matthew Snyder. How do we determine what a sign is really about?

  • The Jones

    The Westboro case is killing me.

    On the one hand, I have a hard time going against the free speech argument by Roberts. You can’t limit the speech of things that you find viciously offensive. just because it’s offensive. If that rule were in place, I think it would be scary how many people would jump to say that “racist tea-baggers” are offensive. It can quickly get out of hand.

    On the other hand, there’s another rule at work. It’s long been recognized that certain things that aren’t technically speech are still considered speech under the 1st amendment, like wearing an arm-band or a button. Is there any way this rule can go the other way? Are there things that are technically speech that shouldn’t be considered speech, but instead assault and harassment?

    In the Westboro Baptist case, I would like to think that it could go with the other hand. I would like the painfully obvious evil of the WBC’s actions to show deference to the families at a funeral. I wish there were some reliable measurement that show that protests about “God hating fags” shouldn’t be accepted at funerals of dead soldiers who weren’t gay, who have no control over “Don’t Ask Don’t Tell Policy,” who are not even very high ranking individuals, and who have no political connection to justify the protest. We already recognize that prurient obscenity has limits in it’s freedom in the public sphere. Is it possible to safely recognize that viciously cruel language like this should also have limits?

    Can’t we have legislatures, laws, and the represented the public making these fine distinctions and not just judges?

  • The Jones

    The Westboro case is killing me.

    On the one hand, I have a hard time going against the free speech argument by Roberts. You can’t limit the speech of things that you find viciously offensive. just because it’s offensive. If that rule were in place, I think it would be scary how many people would jump to say that “racist tea-baggers” are offensive. It can quickly get out of hand.

    On the other hand, there’s another rule at work. It’s long been recognized that certain things that aren’t technically speech are still considered speech under the 1st amendment, like wearing an arm-band or a button. Is there any way this rule can go the other way? Are there things that are technically speech that shouldn’t be considered speech, but instead assault and harassment?

    In the Westboro Baptist case, I would like to think that it could go with the other hand. I would like the painfully obvious evil of the WBC’s actions to show deference to the families at a funeral. I wish there were some reliable measurement that show that protests about “God hating fags” shouldn’t be accepted at funerals of dead soldiers who weren’t gay, who have no control over “Don’t Ask Don’t Tell Policy,” who are not even very high ranking individuals, and who have no political connection to justify the protest. We already recognize that prurient obscenity has limits in it’s freedom in the public sphere. Is it possible to safely recognize that viciously cruel language like this should also have limits?

    Can’t we have legislatures, laws, and the represented the public making these fine distinctions and not just judges?

  • Joe

    “Can’t we have legislatures, laws, and the represented the public making these fine distinctions and not just judges?”

    Sure that would be called democracy, something our founders were smart enough to know normally devolves into the tyranny of the majority. That is why we have a bill of rights, three branches of the federal gov’t, federalism and it is why we have a court that can decided these issues. Democracy is not interested in the protection of liberty, it is interested in expressing the will of 50% +1. Nothing more and nothing less.

  • Joe

    “Can’t we have legislatures, laws, and the represented the public making these fine distinctions and not just judges?”

    Sure that would be called democracy, something our founders were smart enough to know normally devolves into the tyranny of the majority. That is why we have a bill of rights, three branches of the federal gov’t, federalism and it is why we have a court that can decided these issues. Democracy is not interested in the protection of liberty, it is interested in expressing the will of 50% +1. Nothing more and nothing less.

  • WebMonk

    Jones, there are places where speech is not protected. The classic “Fire!!” in a crowded movie theater is one. There are several sets of rules that are applied to test whether or not the speech should be protected. Wikipedia it for the basics.

    None of them apply in this case.

  • WebMonk

    Jones, there are places where speech is not protected. The classic “Fire!!” in a crowded movie theater is one. There are several sets of rules that are applied to test whether or not the speech should be protected. Wikipedia it for the basics.

    None of them apply in this case.

  • Dennis Peskey

    Note of interest: Pastor Wilken of Issues.Etc (IssuesEtc.org) just completed a half-hour interview with Chris Rosebrough about his interview with the Westboro Baptist Church.
    Peace,
    Dennis

  • Dennis Peskey

    Note of interest: Pastor Wilken of Issues.Etc (IssuesEtc.org) just completed a half-hour interview with Chris Rosebrough about his interview with the Westboro Baptist Church.
    Peace,
    Dennis

  • The Jones

    But, WebMonk, (@48)

    Can you really just see the situation of a group of people (WBC) going around verbally denegrating vulnerable people (families morning their children and fathers at funerals) for no apparent reason other than the satisfaction attention brings (do they really think they’re going to change minds or policy by doing that) and just say “Well, that’s free speech. Oh well.”?

  • The Jones

    But, WebMonk, (@48)

    Can you really just see the situation of a group of people (WBC) going around verbally denegrating vulnerable people (families morning their children and fathers at funerals) for no apparent reason other than the satisfaction attention brings (do they really think they’re going to change minds or policy by doing that) and just say “Well, that’s free speech. Oh well.”?

  • The Jones

    If you say yes because of a legal argument, then I can at least understand. But if you say yes because your emotions and overall sense of justice are unmoved, I’m a little taken aback.

  • The Jones

    If you say yes because of a legal argument, then I can at least understand. But if you say yes because your emotions and overall sense of justice are unmoved, I’m a little taken aback.

  • http://www.toddstadler.com/ tODD

    DonS (@41), given that in the current state of things, women do have the legal right to get abortions (which we both think are wrong), isn’t it proper that “they must be allowed sufficient access to the entrances of places where that can be accomplished”, much as Westboro’s detestable-but-legal speech must also be afforded its protections, as well? That is to say, isn’t your real issue with the right to abortion, and not with protecting legal rights? Perhaps that’s what you were saying, but I wanted to be sure.

    I’m also wondering about this suggestion:

    A compassionate Congress should try to draft a suitable statute to provide some reasonable guaranteed space for grieving military families.

    Are you suggesting that military families should receive special priveleges not afforded to civilian funerals?

    Dennis (@43), it’s largely beside the point, but I honestly think that usage of “nondenominational” isn’t all that inaccurate, given that Westboro is not a part of any larger Baptist body, that I know of. They appear to be part of a one-church “Baptist” denomination and, as such, are very much like the other single-church “non-denominational” denominations.

    You also said, “the funeral of LCpl Snyder was private and deserving of respect and reverence –- or we risk losing all respect for the dead”, and I agree. But reverence and respect — whether for the dead or the living — are not rights guaranteed in our Constitution. That doesn’t make them good things — things that we citizens should, using our own free speech, urge on each other — but on the other hand, I don’t want the government to start taking punitive action every time someone feels that they have been denied respect. Nor, I suspect, do you.

    The Jones asked (@46), “Is it possible to safely recognize that viciously cruel language like this should also have limits?” I find that people asking such things almost always imagine that they — or people like them — will be in charge of defining what “viciously cruel” means. Which seems a bit naive to me. Imagine for a second, instead, that your worst enemies, who wish to quash your every effort, are the ones defining what language is and isn’t “cruel”. Would you want to give them that power?

  • http://www.toddstadler.com/ tODD

    DonS (@41), given that in the current state of things, women do have the legal right to get abortions (which we both think are wrong), isn’t it proper that “they must be allowed sufficient access to the entrances of places where that can be accomplished”, much as Westboro’s detestable-but-legal speech must also be afforded its protections, as well? That is to say, isn’t your real issue with the right to abortion, and not with protecting legal rights? Perhaps that’s what you were saying, but I wanted to be sure.

    I’m also wondering about this suggestion:

    A compassionate Congress should try to draft a suitable statute to provide some reasonable guaranteed space for grieving military families.

    Are you suggesting that military families should receive special priveleges not afforded to civilian funerals?

    Dennis (@43), it’s largely beside the point, but I honestly think that usage of “nondenominational” isn’t all that inaccurate, given that Westboro is not a part of any larger Baptist body, that I know of. They appear to be part of a one-church “Baptist” denomination and, as such, are very much like the other single-church “non-denominational” denominations.

    You also said, “the funeral of LCpl Snyder was private and deserving of respect and reverence –- or we risk losing all respect for the dead”, and I agree. But reverence and respect — whether for the dead or the living — are not rights guaranteed in our Constitution. That doesn’t make them good things — things that we citizens should, using our own free speech, urge on each other — but on the other hand, I don’t want the government to start taking punitive action every time someone feels that they have been denied respect. Nor, I suspect, do you.

    The Jones asked (@46), “Is it possible to safely recognize that viciously cruel language like this should also have limits?” I find that people asking such things almost always imagine that they — or people like them — will be in charge of defining what “viciously cruel” means. Which seems a bit naive to me. Imagine for a second, instead, that your worst enemies, who wish to quash your every effort, are the ones defining what language is and isn’t “cruel”. Would you want to give them that power?

  • http://www.toddstadler.com/ tODD

    The Jones (@50), it appears from your comments that you haven’t read the opinion. Have you? If not, may I suggest that you do. I’m not a lawyer, and I found it pretty easy to read.

    I say that because, well, you’re implying that the Westboro group is engaging in nothing less than personal verbal assault. The majority opinion contradicts this view and explains why. There are limits on personal verbal assault — or, at least, as I understand things, more limits than on speech to the public on matters of public concern.

    And whether or not you like that speech on an emotional level (@51) — which I hope we both agree is not the level on which constitutionality should be decided — you have to admit that the contents of Westboro’s signs did deal with topics of public concern. To wit, homosexuality, the Catholic church, religion, the military.

    You ask parenthetically, “Do they really think they’re going to change minds or policy by doing that”, but that’s a question of tactics, of effectiveness — and, as such, irrelevant to the question of legality.

  • http://www.toddstadler.com/ tODD

    The Jones (@50), it appears from your comments that you haven’t read the opinion. Have you? If not, may I suggest that you do. I’m not a lawyer, and I found it pretty easy to read.

    I say that because, well, you’re implying that the Westboro group is engaging in nothing less than personal verbal assault. The majority opinion contradicts this view and explains why. There are limits on personal verbal assault — or, at least, as I understand things, more limits than on speech to the public on matters of public concern.

    And whether or not you like that speech on an emotional level (@51) — which I hope we both agree is not the level on which constitutionality should be decided — you have to admit that the contents of Westboro’s signs did deal with topics of public concern. To wit, homosexuality, the Catholic church, religion, the military.

    You ask parenthetically, “Do they really think they’re going to change minds or policy by doing that”, but that’s a question of tactics, of effectiveness — and, as such, irrelevant to the question of legality.

  • DonS

    tODD @ 52: Special statutes aimed at abortion protesters were unnecessary, and, in my opinion, passed for political reasons to harass them. Police have always had the authority to ensure that entrances to private buildings are cleared sufficiently to permit access. As you know, constitutional rights such as free speech are always restrictable to the extent that they infringe the rights of another. Clearly, without question, the lawful inhabitant of a private building has the right to have and permit access to that building, and to have law enforcement officials ensure that access, without specific, targeted laws.

    “Are you suggesting that military families should receive special privileges not afforded to civilian funerals?” — ABSOLUTELY! The family and friends of a member of the military who gave his life for his country deserve every special privilege we can give them.

  • DonS

    tODD @ 52: Special statutes aimed at abortion protesters were unnecessary, and, in my opinion, passed for political reasons to harass them. Police have always had the authority to ensure that entrances to private buildings are cleared sufficiently to permit access. As you know, constitutional rights such as free speech are always restrictable to the extent that they infringe the rights of another. Clearly, without question, the lawful inhabitant of a private building has the right to have and permit access to that building, and to have law enforcement officials ensure that access, without specific, targeted laws.

    “Are you suggesting that military families should receive special privileges not afforded to civilian funerals?” — ABSOLUTELY! The family and friends of a member of the military who gave his life for his country deserve every special privilege we can give them.

  • http://www.toddstadler.com/ tODD

    DonS (@54), said:

    “Are you suggesting that military families should receive special privileges not afforded to civilian funerals?” — ABSOLUTELY! The family and friends of a member of the military who gave his life for his country deserve every special privilege we can give them.

    But this would create a special class of people, namely, those who serve our country. You routinely decry such a thing when we are talking about non-military civil servants. You tell us that such people should not be treated any differently than the rest of us. You remind us that their job is to serve, not to be served.

    Do you at least, therefore, agree that every non-military civil servant that dies while serving his country should also be afforded special funeral priveleges along these lines?

  • http://www.toddstadler.com/ tODD

    DonS (@54), said:

    “Are you suggesting that military families should receive special privileges not afforded to civilian funerals?” — ABSOLUTELY! The family and friends of a member of the military who gave his life for his country deserve every special privilege we can give them.

    But this would create a special class of people, namely, those who serve our country. You routinely decry such a thing when we are talking about non-military civil servants. You tell us that such people should not be treated any differently than the rest of us. You remind us that their job is to serve, not to be served.

    Do you at least, therefore, agree that every non-military civil servant that dies while serving his country should also be afforded special funeral priveleges along these lines?

  • http://www.oldsolar.com/currentblog.php Rick Ritchie

    “The family and friends of a member of the military who gave his life for his country deserve every special privilege we can give them.”

    There is a problem with this idea. As the court recognized, people need to be able to freely discuss whether a given war is a good idea. Even if most of us are inclined to think that the servicemen and women in the current war are honorable, can we not imagine some future conflict where that would not be the case? Is there no scenario under which a soldier’s funeral ought to be picketed? Involvement in a massacre, perhaps? The temptation might be to allow discretion in which cases this is applied, but how can you make the state the arbiter of whether its own wars were just? You know what the answer will always be.

  • http://www.oldsolar.com/currentblog.php Rick Ritchie

    “The family and friends of a member of the military who gave his life for his country deserve every special privilege we can give them.”

    There is a problem with this idea. As the court recognized, people need to be able to freely discuss whether a given war is a good idea. Even if most of us are inclined to think that the servicemen and women in the current war are honorable, can we not imagine some future conflict where that would not be the case? Is there no scenario under which a soldier’s funeral ought to be picketed? Involvement in a massacre, perhaps? The temptation might be to allow discretion in which cases this is applied, but how can you make the state the arbiter of whether its own wars were just? You know what the answer will always be.

  • DonS

    Rick @ 56: Please review my comments in this thread. You misunderstand my position. I agree with the Court’s ruling in the WBC case. All I was saying to tODD was that Congress should do what it can, within constitutional parameters, to ensure that military funerals are protected to the maximum extent they can be, especially since Congress has previously deemed it important to protect abortionists and their customers, with special protective statutes, from pro-life protesters.

  • DonS

    Rick @ 56: Please review my comments in this thread. You misunderstand my position. I agree with the Court’s ruling in the WBC case. All I was saying to tODD was that Congress should do what it can, within constitutional parameters, to ensure that military funerals are protected to the maximum extent they can be, especially since Congress has previously deemed it important to protect abortionists and their customers, with special protective statutes, from pro-life protesters.

  • DonS

    tODD @ 55: Those who serve our country are, rightly, a special class of people. This is not a Constitutionally-protected class, merely a group of people who have volunteered to protect us and our way of life in military service, even if it costs them their lives. They are entitled to the maximum amount of consideration and care that we can lawfully provide.

    If you want to propose a bill to protect unionized government workers’ funerals because of their “sacrifice” for our country when they die of a heart attack at their desks or whatnot, please feel free. It’s a free country — for now — thanks to our military.

  • DonS

    tODD @ 55: Those who serve our country are, rightly, a special class of people. This is not a Constitutionally-protected class, merely a group of people who have volunteered to protect us and our way of life in military service, even if it costs them their lives. They are entitled to the maximum amount of consideration and care that we can lawfully provide.

    If you want to propose a bill to protect unionized government workers’ funerals because of their “sacrifice” for our country when they die of a heart attack at their desks or whatnot, please feel free. It’s a free country — for now — thanks to our military.

  • http://www.oldsolar.com/currentblog.php Rick Ritchie

    Okay, Don. But that creates new questions. You speak both of “every special privilege we can give them” on the one hand, yet also mention being within the Constitution on the other. For specifics you suggest reasonable time, space, and manner restrictions. This suggests to me that what was really wrong here was that the funeral in question should have been protected with tighter restrictions.

    What I wonder, though, given the nature of the damages, is how this might have helped. If Mr. Snyder received the emotional blow while watching television, it seems like space was not the issue.

    As to time, the question becomes whether this is a very brief time, just long enough to get to and from a funeral, or a long time, the entire time someone might be especially vulnerable after a death, perhaps several months. The latter could have a chilling effect on valid dissent.

    The justices pointed out that restrictions should be strong enough that the distress is avoidable on the part of the victim. If the victim can avoid distress through averting a gaze, enough is being done. Whether or not the laws should be more stringent, this does point out the fact that under current law we have ways open to us to avoid harm. A vulnerable person might wish to ride with the windows covered. And that individual might also wish to screen their television and internet choices for some time. The claim is that real health damage was done, damage in the millions of dollars. If you could avoid that with tinted windows and the avoidance of live news for a time, would it not be worth it? Rather than wishing dubious laws into existence, I think we should think of how future victims can protect themselves in the current climate.

  • http://www.oldsolar.com/currentblog.php Rick Ritchie

    Okay, Don. But that creates new questions. You speak both of “every special privilege we can give them” on the one hand, yet also mention being within the Constitution on the other. For specifics you suggest reasonable time, space, and manner restrictions. This suggests to me that what was really wrong here was that the funeral in question should have been protected with tighter restrictions.

    What I wonder, though, given the nature of the damages, is how this might have helped. If Mr. Snyder received the emotional blow while watching television, it seems like space was not the issue.

    As to time, the question becomes whether this is a very brief time, just long enough to get to and from a funeral, or a long time, the entire time someone might be especially vulnerable after a death, perhaps several months. The latter could have a chilling effect on valid dissent.

    The justices pointed out that restrictions should be strong enough that the distress is avoidable on the part of the victim. If the victim can avoid distress through averting a gaze, enough is being done. Whether or not the laws should be more stringent, this does point out the fact that under current law we have ways open to us to avoid harm. A vulnerable person might wish to ride with the windows covered. And that individual might also wish to screen their television and internet choices for some time. The claim is that real health damage was done, damage in the millions of dollars. If you could avoid that with tinted windows and the avoidance of live news for a time, would it not be worth it? Rather than wishing dubious laws into existence, I think we should think of how future victims can protect themselves in the current climate.

  • Porcell

    Lest anyone questions the viciousness of Phelps et al, the following are just some of the quotes that Justice Alito provided in his opinion:

    Their press release stated that they were going “to picket the funeral of Lance Cpl. Matthew A. Snyder” because “God Almighty killed Lance Cpl. Snyder. He died in shame, not honor— for a fag nation cursed by God . . . . Now in Hell—sine die.”

    On the day of the funeral, respondents, true to their word, displayed placards that conveyed the message prom-ised in their press release. Signs stating “God Hates You”and “Thank God for Dead Soldiers” reiterated the message that God had caused Matthew’s death in retribution for his sins. Others, stating “You’re Going to Hell” and “Not Blessed Just Cursed,” conveyed the message that Matthew was “in Hell—sine die. There were signs reading “God Hates Fags,” “Semper Fi Fags,” “FagsDoom Nations.
    God blessed you, Mr. and Mrs. Snyder, with a re-source and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD! You did JUST THE OPPOSITE—you raised him for the devil.
    Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and tocommit adultery. They taught him how to support thelargest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic monster they con-demned their own souls. They also, in supporting sa-tanic Catholicism, taught Matthew to be an idolater. . . . . . “Then after all that they sent him to fight for theUnited States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life,

    This is the sort of exceedingly vile speech that Alito quite correctly regarded as beyond the reasonable protection of free-speech rights. Phelps in my view is a satanic character.

  • Porcell

    Lest anyone questions the viciousness of Phelps et al, the following are just some of the quotes that Justice Alito provided in his opinion:

    Their press release stated that they were going “to picket the funeral of Lance Cpl. Matthew A. Snyder” because “God Almighty killed Lance Cpl. Snyder. He died in shame, not honor— for a fag nation cursed by God . . . . Now in Hell—sine die.”

    On the day of the funeral, respondents, true to their word, displayed placards that conveyed the message prom-ised in their press release. Signs stating “God Hates You”and “Thank God for Dead Soldiers” reiterated the message that God had caused Matthew’s death in retribution for his sins. Others, stating “You’re Going to Hell” and “Not Blessed Just Cursed,” conveyed the message that Matthew was “in Hell—sine die. There were signs reading “God Hates Fags,” “Semper Fi Fags,” “FagsDoom Nations.
    God blessed you, Mr. and Mrs. Snyder, with a re-source and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD! You did JUST THE OPPOSITE—you raised him for the devil.
    Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and tocommit adultery. They taught him how to support thelargest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic monster they con-demned their own souls. They also, in supporting sa-tanic Catholicism, taught Matthew to be an idolater. . . . . . “Then after all that they sent him to fight for theUnited States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life,

    This is the sort of exceedingly vile speech that Alito quite correctly regarded as beyond the reasonable protection of free-speech rights. Phelps in my view is a satanic character.

  • http://www.oldsolar.com/currentblog.php Rick Ritchie

    Porcell, the latter half of that was from an internet post. Since Snyder did not include that in his lawsuit, it was not part of the case. I mentioned above that I would have been interested to see how that would have been handled. Most of the arguments of the court majority were regarding the signs, and I agree with their ruling on those.

    I also agree that Phelps is a Satanic character. I have read a long account of child abuse in his house told from the perspective of one of his children who got out. My legal opinions here are not primarily directed at Phelps, as Supreme Court cases are more about the law than about the plaintiff or the accused. Justice of that sort is for lower courts to decide.

  • http://www.oldsolar.com/currentblog.php Rick Ritchie

    Porcell, the latter half of that was from an internet post. Since Snyder did not include that in his lawsuit, it was not part of the case. I mentioned above that I would have been interested to see how that would have been handled. Most of the arguments of the court majority were regarding the signs, and I agree with their ruling on those.

    I also agree that Phelps is a Satanic character. I have read a long account of child abuse in his house told from the perspective of one of his children who got out. My legal opinions here are not primarily directed at Phelps, as Supreme Court cases are more about the law than about the plaintiff or the accused. Justice of that sort is for lower courts to decide.

  • Porcell

    Rick, all of the quotes at 60 came directly from Justice Alito’s dissenting opinion.

  • Porcell

    Rick, all of the quotes at 60 came directly from Justice Alito’s dissenting opinion.

  • http://www.oldsolar.com/currentblog.php Rick Ritchie

    Porcell, I was not claiming that they came from an internet post and could not be found quoted in Alito’s opinion. But you left off the introduction where this is referred to as the “epic,” and that the epic was an internet post is described in the majority opinion. Here is what some of the context looks like:

    Belying any suggestion that they had simply made general comments about homosexuality, the Catholic Church, and the United States military, the “epic” addressed the Snyder family directly:
    “God blessed you, Mr. and Mrs. Snyder, with a re-source and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD! You did JUST THE OPPOSITE—you raised him for the devil.

    A note in the majority opinion explains:
    1A few weeks after the funeral, one of the picketers posted a message on Westboro’s Web site discussing the picketing and containing religiously oriented denunciations of the Snyders, interspersed among lengthy Bible quotations. Snyder discovered the posting, referred to by the parties as the “epic,” during an Internet search for his son’s name.

  • http://www.oldsolar.com/currentblog.php Rick Ritchie

    Porcell, I was not claiming that they came from an internet post and could not be found quoted in Alito’s opinion. But you left off the introduction where this is referred to as the “epic,” and that the epic was an internet post is described in the majority opinion. Here is what some of the context looks like:

    Belying any suggestion that they had simply made general comments about homosexuality, the Catholic Church, and the United States military, the “epic” addressed the Snyder family directly:
    “God blessed you, Mr. and Mrs. Snyder, with a re-source and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD! You did JUST THE OPPOSITE—you raised him for the devil.

    A note in the majority opinion explains:
    1A few weeks after the funeral, one of the picketers posted a message on Westboro’s Web site discussing the picketing and containing religiously oriented denunciations of the Snyders, interspersed among lengthy Bible quotations. Snyder discovered the posting, referred to by the parties as the “epic,” during an Internet search for his son’s name.

  • WebMonk

    Jones, I must be missing something. I’m not seeing any connection at all between my 48 and your 50 and 51. Are you perhaps referring to a different post somewhere?

  • WebMonk

    Jones, I must be missing something. I’m not seeing any connection at all between my 48 and your 50 and 51. Are you perhaps referring to a different post somewhere?

  • Phillip

    WebMonk, neither Alito or Scalia is my “golden boy.” I think they’re all incompetent and all means all. I merely was saying Scalia happens to luck into good outcomes more often than most of them, despite the fact that he can’t explain why the case should have been decided the way he wanted it to be. He’s no less incompetent than the rest. He merely seems to be luckier.

  • Phillip

    WebMonk, neither Alito or Scalia is my “golden boy.” I think they’re all incompetent and all means all. I merely was saying Scalia happens to luck into good outcomes more often than most of them, despite the fact that he can’t explain why the case should have been decided the way he wanted it to be. He’s no less incompetent than the rest. He merely seems to be luckier.

  • WebMonk

    Phillip 65.
    Wait, do you mean Scalia or Alito? Here you’re saying Scalia again. But before you said you meant Alito. And before that you said Scalia. You don’t actually know who you mean, do you?

    And how do you possibly combine your two statements: 1) Scalia (or maybe it was Alito) is so brilliant that no one else on the court can understand him, and 2) “they’re all incompetent and all means all”. (saying someone occasionally lucks into something while being totally ignorant isn’t at all congruent with being so super brilliant that no one else can even begin to understand him)

    If you can’t even manage to keep two very different justices straight, and can’t make up your mind whether one or the other of those justices is brilliant or an idiot, and you’re completely ignorant of what it takes to become a lawyer, I don’t think you have a leg to stand on when you start blathering on about how they’re all idiots and incompetent.

  • WebMonk

    Phillip 65.
    Wait, do you mean Scalia or Alito? Here you’re saying Scalia again. But before you said you meant Alito. And before that you said Scalia. You don’t actually know who you mean, do you?

    And how do you possibly combine your two statements: 1) Scalia (or maybe it was Alito) is so brilliant that no one else on the court can understand him, and 2) “they’re all incompetent and all means all”. (saying someone occasionally lucks into something while being totally ignorant isn’t at all congruent with being so super brilliant that no one else can even begin to understand him)

    If you can’t even manage to keep two very different justices straight, and can’t make up your mind whether one or the other of those justices is brilliant or an idiot, and you’re completely ignorant of what it takes to become a lawyer, I don’t think you have a leg to stand on when you start blathering on about how they’re all idiots and incompetent.

  • DonS

    Rick @ 59: Yeah, I’m not sure how much can be done, either. Jerks will be jerks, and the WBC clan seems pretty bent on fulfilling that role. But we owe it to our military families to brainstorm and do our best to protect them to the extent possible, within the bounds of the Constitution, during their time of grief. It’s the least we can do.

    Webmonk @ 66: Hmm, I’m thinking this conversation you are having with Phillip is not going to really advance that far. It’s kind of hard to justify calling Antonin Scalia “incompetent”, “stupid”, or not the best legal mind, regardless of whether you agree with his legal analysis. The man is flat out brilliant. And what I like most about him is that he is not results-driven. He doesn’t care if his holding causes the accused murderer to go free. Protecting the Constitution is more important. I respect that a great deal.

    I would say that Phillip has perhaps had a bad experience or two in the court system which has perhaps colored his thinking a bit.

  • DonS

    Rick @ 59: Yeah, I’m not sure how much can be done, either. Jerks will be jerks, and the WBC clan seems pretty bent on fulfilling that role. But we owe it to our military families to brainstorm and do our best to protect them to the extent possible, within the bounds of the Constitution, during their time of grief. It’s the least we can do.

    Webmonk @ 66: Hmm, I’m thinking this conversation you are having with Phillip is not going to really advance that far. It’s kind of hard to justify calling Antonin Scalia “incompetent”, “stupid”, or not the best legal mind, regardless of whether you agree with his legal analysis. The man is flat out brilliant. And what I like most about him is that he is not results-driven. He doesn’t care if his holding causes the accused murderer to go free. Protecting the Constitution is more important. I respect that a great deal.

    I would say that Phillip has perhaps had a bad experience or two in the court system which has perhaps colored his thinking a bit.

  • The Jones

    Webmonk,

    Well, you have a point. No. They’re not exactly consistent. And that’s the point I’m trying to communicate. I really really wish that there is some legal way to recognize that some things people say are bad. We know this spiritually, it’s basic Christian common sense, but that doesn’t translate legally. I want there to be a way for malicious and hateful actions, which reside in the category of the spoken and written word, to be judged as inhumane. I am struggling, no scratch that, I’m failing to make that happen because I know that as soon as I offer a way to do it, it’ll put plenty of innocent people in danger of the new speech governors, even if it only aims for the blatantly offensive case of WBC.

    When I wrote 50 and 51, I wasn’t exactly disagreeing with you, I just felt a little put off by the frank ending of “none of those apply here.” I was hoping you also felt the same twinge I do when the oppressor gets off and the victim finds no resolution (at least temporally). Maybe you do. I just didn’t read it in your comment. I don’t want to re-offend by my response. But that’s my explanation. I hope that helps.

  • The Jones

    Webmonk,

    Well, you have a point. No. They’re not exactly consistent. And that’s the point I’m trying to communicate. I really really wish that there is some legal way to recognize that some things people say are bad. We know this spiritually, it’s basic Christian common sense, but that doesn’t translate legally. I want there to be a way for malicious and hateful actions, which reside in the category of the spoken and written word, to be judged as inhumane. I am struggling, no scratch that, I’m failing to make that happen because I know that as soon as I offer a way to do it, it’ll put plenty of innocent people in danger of the new speech governors, even if it only aims for the blatantly offensive case of WBC.

    When I wrote 50 and 51, I wasn’t exactly disagreeing with you, I just felt a little put off by the frank ending of “none of those apply here.” I was hoping you also felt the same twinge I do when the oppressor gets off and the victim finds no resolution (at least temporally). Maybe you do. I just didn’t read it in your comment. I don’t want to re-offend by my response. But that’s my explanation. I hope that helps.

  • WebMonk

    NP Jones. I really didn’t (and still don’t) see how 50 and 51 are talking about 48. Just an inability to comprehend on my part – no offense taken at all, I assure you.

    As to the case, I’m only partly sympathetic to the father’s claim for redress. (I’m very sympathetic to his anguish, but only partly sympathetic to the claim for redress.) I abhor the WBC actions, but the father’s distress was caused not by the protest itself, but by statements made on WBC’s website which the father saw later after he was alerted by a third party.

    There are remedies in civil court to mental anguish caused by one party upon another by statements and actions, but the requirements for those claims are very strict, and rightly so. If the requirements get loosened much, then abuses become very easy. If he had been forced to walk through the protesters during the funeral, I think his case would have been a lot stronger than it was.

    My main point being that legalities aren’t blind to reality. They just have to be VERY conservative any time they go beyond the direct extrapolation of the law. It would be nice if WBC stopped their garbage, but it is impossible to legally ban WBC’s actions without also banning a lot of other speech which you wouldn’t want banned.

  • WebMonk

    NP Jones. I really didn’t (and still don’t) see how 50 and 51 are talking about 48. Just an inability to comprehend on my part – no offense taken at all, I assure you.

    As to the case, I’m only partly sympathetic to the father’s claim for redress. (I’m very sympathetic to his anguish, but only partly sympathetic to the claim for redress.) I abhor the WBC actions, but the father’s distress was caused not by the protest itself, but by statements made on WBC’s website which the father saw later after he was alerted by a third party.

    There are remedies in civil court to mental anguish caused by one party upon another by statements and actions, but the requirements for those claims are very strict, and rightly so. If the requirements get loosened much, then abuses become very easy. If he had been forced to walk through the protesters during the funeral, I think his case would have been a lot stronger than it was.

    My main point being that legalities aren’t blind to reality. They just have to be VERY conservative any time they go beyond the direct extrapolation of the law. It would be nice if WBC stopped their garbage, but it is impossible to legally ban WBC’s actions without also banning a lot of other speech which you wouldn’t want banned.

  • The Jones

    Good points

  • The Jones

    Good points


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