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?