Friday, January 27, 2006

Sacred Space: Lawmaker Proposes a Ban on Protests at Military Funerals

A lawmaker in Illinois is proposing a bill that would ban protests within 300 feet of funeral from funerals or memorial services. The bill is a response to the Westboro Baptist Church of Topeka Kan. led by Fred Phelps. Phelps and his group contend that soldiers are dying in Iraq because God is punishing America for its acceptance of homosexuality. Their protests mostly involve holding up signs that say, "Thank God for dead soldiers" and at least one report of verbally engaging funeral attendees. (He's also sure the West Virginia mining accident has the Almighty's fingerprints on it for the same reason. WBC plans a protest soon).
Before I unpack some of the cool issues of ethics and free speech, allow me to exercise my freedom of expression: "Ahem . . . Fred Phelps, your teachings are destructive, irrational, deluded, and violate several important tenets of the historic Christian faith. Fred, God will not be pleased when you meet face to face." That felt good.
Now setting aside my libertarian concerns about hard cases making bad law, there seem to be a couple of good questions to consider here. The article mentions that the key to law will be whether the protest represents "content-based" or content neutral. If its content based--privileging one opinion over another--as it surely seems to be, then it is subject to strict scrutiny, meaning, it can be weighed against public safety and other concerns including profound offense (i.e. these are mourners; to protest in this way is profoundly offensive). So if the protesters are trying to privilege one opinion over another they are less protected than if they were merely reporting facts about something? I wonder if we can make a case for just the opposite. What's most important is the kind of speech that is content based. Nobody is too worried about content neutral speech if there is such a thing. (if ever there was a bad label for a concept, this is it.)
George Sher has argued in "Freedom of Expression in the Non-neutral State" that speech should be privileged over expressive action. Speech act theory aside, he thinks we can divide speech and action with enough percision to privilege speech over actions. If we can do that, could we draw a clear enough distinction between deliberative speech and purely expressive speech? Some philosophers have argued speech should be priviledged because it is closer to thought than action. (I think D. Jacobson makes this point concerning Mill.) Does that put deliberative speech-- the right to persuade others to think like you--closer to thought than expressive speech?
How would we define deliberative speech? Is it enough to say its speech that intends to argue a point with the goal being acceptance by the other party rather than merely expressing an opinion? Is there significant difference between statements like "Free Healthcare should be a right of all citizens." versus "Thank God for Dead Soldiers"? If so, could we argue that deliberative speech of an argumentative sort is more fundamentally altered by time, place, and manner restrictions than say expressive speech? Is it affected enough that we could make expressive speech subject to strict judicial scrutiny and privilege deliberative speech?
This would mean that deliberative speech would only be subject to a harm principle (ala Mill) where as expressive speech would be subject to an offense principle (ala Joel Feinberg). In which case, a ban on the Phelpian kind of protest would be vulnerable to consequential arguments--weighing concerns etc. After all, Phelps isn't really trying to convince funeral goers with statements like "Thank God for Dead Soldiers" He's trying to get his point on CNN. he trying to alter the perception in America. Legitimate as that is, he could do that lots of places other than in the faces of mourners. (I hear Larry King will interview just about anyone). One major objection to this argument would be that "deliberative speech" could include all sorts of manipulative, misleading, and incendiary speech. I mean does anyone consider most of what gets "soundbited" on the news from the president and congress consumate deliberative discourse?


  1. It's a sticky issue. I just finished a paper that focused on the morality of certain kinds of speech (there is no doubt in my mind that what Phelps is doing is immoral), but it did not touch on the legal or political. I'm uncomfortable with restricting speech, expressive or deliberative, based on its content. I'm out of my element here, but I wonder if there is a way to set up a buffer zone around cemetaries like they have done around abortion clinics. I'm sure someone will tell my why these are not analogous situations, but that's the first thing that came to my mind.

  2. You might make a case that this is speech likely to incite violence, and on those grounds take issue with the choice of location for the speech. One concern about a law that forbids protests near funerals is that there may be times when we deem such protest appropriate. Do we ever think that? Would we think that at a funeral for Charles Manson?

    Supposing a religious cult grew up around a mass murderer, and the "church" has a big gathering around some mass murderer. If people were to protest that funeral, I think I would be all right with that. I bet most of us would be. And I also bet that we probably would like any law that prevents protest at funerals to be so strictly tailored as to prevent outlawing these kinds of protests.

    There's an additional worry. Phelps can't get his message across in as powerful a way as he does anywhere but at these funerals. It's only a news story because of the location, not because of the content, really. Does this make us hesitate a bit more about banning it?

  3. I question whether Peter's last statement is true. I think Phelps has alot of ways to get his message across other than these funerals. Marching on the capital mall would do it. Now if we say, "He's the little guy and this is the only way the little guy can get his point out." I have to say, that if he's the little guy, there are ways to convince people to join you and you can become the big guy. Just as small businesses have the option on expanding if they can find the capital, so F. Phelps has the option of increasing his "megaphone" by persuading more people until he has a base that's big enough to make an impact. This seems to me to be part of what we mean by a "marketplace" of ideas. Ideas gain value (read influence) kind of in the same way that products or companies do.

  4. I wonder if you're expecting too much, Jonathan. True, there is the possibility that he could garner similar media attention by doing something different. That's true of just about everything. The real question to ask, however, is how much onus are we going to put on people to come up with these ideas?

    The small business idea is not a very compelling one. "If they could find the capital" is where all the action is. It isn't easy for a small business to generate both the necessary amount of capital, the gumption to expand (since it is a risk), as well as the ideas necessary in order to expand. In theory, it's an easy way to go. But the generation of those ideas, the capital, and the gumption are significant obstacles to the practical growth of any small business.

    Similarly with Phelps. He came up with this idea, and it's generated plenty of media, as well as a discussion on this blog. He's successful. The fact that he could have been successful in any number of different ways doesn't change this fact. And what matters is what ideas were floated at their meetings, and not ideas that they could have had.

    Similarly, you say that he could grow his base until he can generate sufficient impact. I see this as a really clear and obvious case of him pursuing just that tactic. Protesting at funerals gets coverage, coverage means more people see it, more people seeing it equals more warm bodies in his pews. Again, this too can be seen as success for Phelps.

    This, too, is a good debate to have: The marketplace of ideas is an interesting way of putting things. I doubt, however, that better ideas gain greater currency over time. It is nice to think that truth will win out, but there's little reason to think that it will. An idea's success, after all, is not measured by its truth, or betterness, but by its usefulness. The more useful, the more likely it will spread. But usefulness doesn't always correspond with truth or betterness (on some standard other than usefulness). Packaging and advertising is crucial to the success of an idea. If you have a good one, you still need the right packaging, the right "advertising" campaign, and so on.

  5. I wonder if we should be so concerned about the freedoms of people like Phelps.

    I'm all for the free exchange of ideas. I wouldn't want to limit the ability of even a group like the KKK to express their views. They can buy a news paper ad. They can march down a street as long as they aren't trying to start a riot.

    With this in mind, there are no rights that are absolute. The interaction of rights is the interesting bit here. Should we allow these people's right of free expression to impinge on the "rights" of people to mourn? Maybe it's just a right to be free from other people being jerks for the sake of being jerks. Harassment?

  6. Peter says "True, there is the possibility that he could garner similar media attention by doing something different. That's true of just about everything. The real question to ask, however, is how much onus are we going to put on people to come up with these ideas?"
    My point is that because Phelps has other reasonable ways of getting his point across, we haven't done anything really bad by restricting him one particular avenue for getting his point across. I was making a case for which speech to screen off from consequentialist weighings of speech against other concerns and which kinds of speech we can weigh against other concerns (like public safety, offense to funeral attendees etc). This is the gist of the strict scrutiny legal requirement. If some speech falls under strict scrutiny then it is vulnerable to weighing it against other consequences. If it doesn't fall under scrutiny, it can't be violated in for any but the most dire circumstances. I was actually being a good consequentialist sort of. I was opening expressive speech up to greater vulnerability to weighing against other concerns-- making the case that if Phelps wants to plead his case in the marketplace, the fact that we restrict him this one area doesn't really violate what I think ought to be sacred, namely the right to persuade others. Now Phelps could argue that funeral protest gets him the venue to actually plead his case to the American public, but my point was that by denying him this very effective way of getting on the world stage, isn't a major sin of policy because the marketplace of ideas is such that there are many ways of getting to that stage.
    However, I also wonder about your claim that what makes an idea popular is its usefullness. I wonder about this with regard to ideas that are at present virtually impracticle (sp?)Are you saying that what causes an idea to suceed in the market is soley its practicality or rather than it is usefulness in terms of the consequences it would produce (which sounds a bit like practicality) or its usefulness in terms of its clarity and precison?
    Also doesn't right packaging often coincide with reasonableness, evidence, etc.? at least an idea doesn't usually fair well if it violates these things. Isn't that Dennet's point about "show me the science" otherwise creationists go away?

  7. Is a funeral a public place and a public forum?

    I'd say that traditionally, funerals were not public forums.

    Not to mention, Ms. Manners advises that one save fighting and backbiting and protests for weddings and not use them to distract the grieving.

  8. The distinction between content-neutral speech and content-based speech does not appear to justify a valuation distinction that would privilege one above the other - i.e. the content distinction does not appear relevant to valuation. I would not be surprised if the origin of the legal employment of the content-distinction was that the distinction coincidentally
    tracked well with preferred distinctions that were more difficult to justify - i.e. a process in which there is a preference to privilege types A-G above types H-N based upon less constitutionally justified reasons and a rationalization process that identified the quality of content-distinction as one that roughly distinguished A-G from H-N on a basis that was constitutionally more justified, despite the fact that the quality's tracking of the preferred distinction was accidental, and did not reflect the basis for the preference for A-G above H-N. An example of this would be the Democratic support for, and Republican opposition to, statehood for Washington D.C; the positions of both parties are grounded in the likely political consequences - two more Democratic senators. Since expressing their positions as based on such a consequence is publicly less justifiable, they claim to base their positions on alternative arguments that are chosen because of their accidental alignment with the interests of their parties.

  9. Just an update: there are counter-protestors now drowning out the anti-gay ones. Interesting: