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March 02, 2011

Two More Take-Aways From The Snyder Case

Maryland now has a law imposing restrictions onfuneral picketing, Md. Crim. Law Code Ann. §10–205 (Lexis Supp. 2010), as do 43 other States and the Federal Government. See Brief for American Legion as Amicus Curiae 18–19, n. 2 (listing statutes). To the extent these laws are content neutral, they raise very different ques-tions from the tort verdict at issue in this case. Mary-land’s law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional.

Well, that's something, I suppose -- but it appears this court is so hostile to the thought of limiting the freaks' supposed "rights" they'll strike those laws down too.

I don't believe they have this right. I base that on the next paragraph:

We have identified a few limited situations where the location of targeted picketing can be regulated under provisions that the Court has determined to be content neutral. In Frisby, for example, we upheld a ban on such picketing “before or about” a particular residence, 487 U. S., at 477. In Madsen v. Women’s Health Center, Inc., we approved an injunction requiring a buffer zone between protesters and an abortion clinic entrance. 512 U. S. 753, 768 (1994).

So the right to picket on a street is not so absolute, eh? It can be restricted in front of a residence; it can be restricted at an abortion clinic.

What do these things have in common? Well, someone's home is not really public; the theory is that a man's home is his castle. But going beyond that, it appears the court is ready to recognize that if protests follow a person to his home, he literally has no escape from the often-brutal sloganeering of the picketers, and would go mad: he simply cannot escape it, except, I suppose, by suicide.

And an abortion clinic? I suppose they are extending the "must have a place of refuge at home" to an abortion clinic, figuring that a woman seeking an abortion must go to the clinic, and so has no way to escape it. I realize that doesn't really make much sense, but the point is whatever they're protecting in extending the protection against free speech demonstrations at abortion clinics, it must of course apply equally to funerals: If their theory is that people cannot be interfered with and have the protest inflicted upon them when they must be at a certain place and hence have no way to escape, of course that applies 1000 times as much to a funeral. You can always choose another abortion clinic, after all. It is much harder -- bordering on impossible -- to cancel a funeral at the last moment and reschedule it.

Note the vicious, liberal double-standard the court imposes here: You can be protected from hassle at an abortion clinic, but not at your son's funeral. How much more important the court seems to believe abortion is than children.

If I had to guess what's going on here -- Scalia probably found that in both situations, free speech rights prevailed, and that it's only the liberals on the court who flipped, deciding that abortion-seekers should have protection, but that a man seeking to bury his war-hero child should have none.

If one case deserves special protection, I find it difficult to imagine how the other does not deserve it even more. But the court has a well-considered, well-reasoned answer to that:

The facts here are obviously quite different, both with respect to the activity being regulated and the means of restricting those activities.

Simply put, the church members had the right to be where they were.

Ah, they say it's quite different, therefore it is quite different. Simply put, they had a right to be where they were. Because.

I'm a bit confused by this passage, because they begin by talking about the present case (which doesn't involve violation of a content-neutral law, but instead a private suit for emotional distress pressed in absence of such a law) and then go on to discuss cases in which a law governing these situations have been found to be constitutional. They may, it seems, be trying to reassure people that now that such laws are on the books, they will be found constitutional, but are forbidden from saying so because courts are not supposed to rule on matters not before them: So instead they may just be hinting here.

But even by the terms of the Maryland law now in effect, the court notes the Westboro Satan-Fags would still be found to have acted lawfully, as that law only requires 100 feet (one hundred feet? I can throw a Nerf football that far and I suck) of distance, and these guys seemed to have been 1000 feet away.

On one hand, free speech is permitted, but on the other hand, stalking and harassment are not; the court seems to be unwilling to consider that while first amendment rights have long been protected by the Constitution, harassment has long been criminalized by law.

When does speech become harassment? How about when you're mobbing a specific individual or family? How about when the only reason your free speech is being broadcast on the airwaves is specifically because you chose to harass a private individual with it? That is, no one would carry footage of these people if they had a regular protest in front of, say, the local Army recruiting station; no, it's that they're specifically choosing an outrageous and brutal means to inflict their message on a grieving family that makes it newsworthy.

The thing that makes their message remarkable from a news perspective is that it is in fact harassment.

So should that be the rule? I guess those union protesters can physically menace people so long as they're chanting slogans as they do so.

Oh wait; that is the rule, isn't it?


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posted by Ace at 01:46 PM

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