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Jill has been blogging for Feministe since 2005.
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141 Responses

  1. Kristen J.
    Kristen J. March 2, 2011 at 12:09 pm |

    Really? I agree with the decision because I do think Phelps was trying to make a political statement. BUT I am afraid others will interpret the decision to broaden even further the definition of matters of public concern.

    God Hates Fags can be a vile political statement, but it can also be a threat directed at individuals whose sexual orientation is not a public concern. Broadly asserting that speech is protected without strongly noting the private/public nuances gives rise to the impression that the FA should protect threats and directed hate speech.

  2. Nicholas
    Nicholas March 2, 2011 at 12:25 pm |

    And let’s not forget, just because you have the right to say something doesn’t mean the public fails to recognize you’re a bigoted dick for saying it.

  3. Kristen J.
    Kristen J. March 2, 2011 at 12:31 pm |

    As I said, I think God Hates Fags CAN be a threat. Speech that is on matters of public concern receives special protection under the FA. And I know hate speech is covered, I simply think its the wrong outcome WHERE the speech is intended to threaten or intimidate.

    I’ve had a cross burned in my neighborhood aimed at getting me and people like me to leave the area. Its fucking frightening. We’ve discussed here numerous times when street harrassment crosses from random speech to an intention to intimidate. Those things should not be protected speech. I think this decision (1) muddies the waters about speech gets special protection and (2) reinforces this shitty line of decisions.

  4. Cactus Wren
    Cactus Wren March 2, 2011 at 12:45 pm |

    The most cogent comment on the WBC that I’ve found is this one.

    Fred Phelps does not believe what he is doing. This is a scam.

    It’s a business. They travel the country, set up websites telling you exactly when they’ll be there, and using the most inflammatory statements all over the place, just to get someone to violate their rights for profit. Then they sue the military, the police force that was to protect them, and everyone that is around them for money. This is a sham, and it is a trap to get people sued. Every member of his family is an attorney. Phelps does not break the law. What he does is try to make you break the law by trying to punch your sensibilities about everything you hold dear, and then sue you and everyone municipality around him to the max.

  5. Kristen J.
    Kristen J. March 2, 2011 at 12:58 pm |

    To clarify further. SCOTUS’ decisions on true threats are so incoherent that academics make tenure arguing about it. In part one of their decisions relies on the fact that the speech in question was a matter of public concern to determine that it wasn’t a threat.

    Without clear guidance lower courts make bad decisions. I had a client a few years ago who was seeking a protective order on an ex who disapproved of her decision to have an abortion. I argued that since we had him on a 911 call standing outside her house screaming that “C*nts who have abortion should die in a fire,” we had sufficient evidence of a threat to her personal safety to justify a protective order. I freaking lost because the judge considered that protected speech because abortion is a matter of public concern under Watts!

  6. Hugo
    Hugo March 2, 2011 at 1:01 pm |

    I’m with you, Jill, reluctantly. I’ve always been grateful that America has more vigorous free speech protections than Europe, where the display of the Swastika is banned. And it’s why I continue to give to the ACLU.

    If Fred Phelps and his gang walk up to a gay man and say “We’re gonna kill you”, that’s hate speech and unprotected. But to stand with signs at a funeral clearly isn’t, no matter what — no matter what — is written on those signs. The right to offend is not the same as the right to threaten, and I think the court recognizes that vital distinction. We have the right not to be threatened. We don’t have the right not to be offended.

  7. Q Grrl
    Q Grrl March 2, 2011 at 1:14 pm |

    Hugo: at some point, enough offense becomes threatening. Certainly when applying for jobs, housing, insurances, etc., if you face enough offensive behavior you eventually stop acting out of your own free will and you let the offense dictate your choices. That’s threatening if you believe in the right to the pursuit of happiness.

    What this is about, however, is the right of the citizen *not* to have the government dictate what that citizen can and cannot say. It has very little to do with whomever is on the receiving end of said speech. Accountability falls on fellow-citizens to check offensive speech. It’s not the governments rubric.

  8. Mo
    Mo March 2, 2011 at 1:39 pm |

    Whether we like it or not, it is free speech. HOWEVER: If he says to someone that their child was killed because of God’s displeasure, why not sue them for slander? They can’t prove the truth of the statement, so they’d lose that case.

  9. Renee
    Renee March 2, 2011 at 1:52 pm |

    Re Mo: My understanding was that a statement like “God is displeased with you” is an opinion, and opinions can’t be defamatory. Otherwise, restaurants could sue reviewers who claim that their food tastes “bad” and everyone could sue the Church since it can’t prove God exists!

    On a more serious note, am I alone in thinking that Snyder filed this suit for the money? We’ve got a person who didn’t even know that his son’s funeral was being protested, and when he finds out later, has “debilitating” emotional trauma. Which seems more likely, the father of an American marine can’t handle adversity, or he sees dollar signs and an unsympathetic defendant?

  10. Nicholas
    Nicholas March 2, 2011 at 2:09 pm |

    *Warning this comment devolves into lawyer-speak*

    Also, after having read Justice Alito’s dissent discussing IIED, the real problem for the Snyder’s is that WBC did this in Maryland. It’s basically impossible to get to recover for IIED in Maryland. As I recall from bar exam prep class, in order for an IIED action to prevail, the victim would need to witness a loved one brutally beaten and tortured firsthand and then die immediately as a result of the tortfeasor’s action.

    We also still have contrib, though I kinda like that.

  11. yolei
    yolei March 2, 2011 at 2:16 pm |

    @Hugo
    the display of the swastika and some other symbols are actually only prohibited in Germany and Austria – not in the rest of Europe and not even under all circumstances. http://en.wikipedia.org/wiki/Strafgesetzbuch_%C2%A7_86a
    can you point out some other examples in how far you think free speech is less protected in (West) Europe than where you live?

  12. Tyler
    Tyler March 2, 2011 at 2:24 pm |

    Jill: I wanted to say that I agree with Kristen J. in the sense that I am compelled to agree with decision that hate speech (and in this case the most vile kind of hate speech I can think of) should be protected but that the decision seems to collapse the contexts and nuances in which all hate speech is delivered. It is often this very type of speech that incites individuals to physically or emotional intimidate, attack and even kill others based on how this type of speech is interpreted. It is an unfortunate legal reality that speech is constructed so distinctly from physical violence in the sense that one needs to rhetorically threaten someone (i.e. “..and you should die” or “…deserve to burn”) in order for an intervention to take place. While it would be a sort of privileging from ‘the bench’ of the justices to rule this sort of speech as unprotected I do think there is something to say in ways that this opinion vacates all historical context from this and future hate speech decisions. It is the reality that queer peoples, women, and people of color are most often the recipients of violent acts incited by these hateful speech acts. The SC Justices are those that make the precedent that other courts reference in determining different legal cases in the future. While I agree that in this case Phelps’s hate speech as speech cannot be protected, I would not have see anything wrong with the Justices making (and would have preferred if they had made) a nod to history and context as important categories of analysis by which hate speech is in reality and practice actually a threat warranting government intervention and not merely protected hate speech.

  13. Court Properly Upholds First Amendment Rights of Hateful Speakers : Lawyers, Guns & Money

    […] from Liptak, ACSblog, and Jill. Share and […]

  14. Hugo
    Hugo March 2, 2011 at 2:45 pm |

    Yolei, see the arrest of John Galliano this week, where he is charged with the crime of anti-Semitism. Public anti-Semitism is illegal in France.

  15. Hugo
    Hugo March 2, 2011 at 2:46 pm |

    And to clarify, I think Galliano should have been fired by Dior. But I also think he should have the right to praise Hitler, and even to wish that someone’s ancestors had been gassed, without facing criminal charges. That’s where my American reverence for speech trumps all.

  16. Renee
    Renee March 2, 2011 at 2:48 pm |

    Tyler,

    Regarding speech that has a potential to incite violence, SCOTUS precedent at one point did allow the government to ban speech that, because of its tendency to incite lawlessness, posed a “clear and present danger.” Charles T. Schenck, the head of the US Socialist party, spent ten years in federal prison for speaking out against the draft during the first world war. (See Schenck v. United States, 249 U.S. 47 (1919).) While that case turned more on the dangerousness of the speech rather than its advocacy of criminal activity, the concept is the same. If (let’s imagine) Phelpsians speech _were_ to be considered unprotected on the grounds that it could lead to crimes against homosexuals, passionate anti-Bush, anti-meat, anti-fur, or anti-pollution activists would be equally unprotected because their speech could cause (or in some cases specifically calls for) tresspassing, property damage, unlawful interference, and similar. That’s really, really not a road I’d like to see SCOTUS go down.

    (Under current SCOTUS precedent, only speech that advocates, and is likely to cause, “imminent lawless action” is unprotected. (Brandenburg v. Ohio, 395 U.S. 444 (1969).))

  17. scrumby
    scrumby March 2, 2011 at 3:20 pm |

    I think this is definitely one of those places where social pressure must extend beyond the law. WBC should be allowed to say what they want without the cops hassling them. Counter protesters and and angry bikers sure, but not cops.

  18. libdevil
    libdevil March 2, 2011 at 3:48 pm |

    At some point though, some protected speech passes into harassment or bullying, both of which can be prohibited. If somebody calls me a faggot, even if I’m upset by it (I would be upset by the display of bigotry and ignorance, but not that somebody thinks I’m gay), that’s protected speech. If he follows me home and stands outside shouting that I’m a faggot, that’s getting closer to the line. If he starts leaving “faggots get out” notes tucked under my windshield wipers every morning, that’s probably just about past where I would draw the line (if it were up to me to legislate such things). If he follows me to work and posts bulletins all over my building declaring me a disgusting faggot, calls my voicemail and screams the word into my message box repeatedly, calls my parents morning noon and night and berates them for raising such a faggot, and calls my boss to try and get me fired because I’m a faggot… ok, now he’s clearly gone way too far, and should be criminally or civilly liable for his actions. But the content of his speech really hasn’t changed. He’s still just expressing disapproval of homosexuality, which somehow is apparently a matter of public concern (and given the number of anti-gay legislative and administrative actions taken by conservatives, I’m pained to admit that it probably is a matter of public concern who I choose to have sex with). But come on, stalking and harassing somebody, browbeating their coworkers and relatives repeatedly, that’s not going to fly. So where’s the boundary? Defining it subjectively (as I’ve done above) is inherently problematic, since unpopular harassment will always find a lower bar set than majority harassment of the vulnerable.

  19. Girl from Ontario
    Girl from Ontario March 2, 2011 at 4:31 pm |

    … I feel like they should not be allowed to be visible from the building where the funeral is taking place. A funeral is a very private, very personal time for people, and no one should be allowed to disturb it. If they want to waste their time with their bullshit antics somewhere else, then whatever. But they should not be allowed to intrude upon such a personal, sacred time for a family/community. You only get to say goodbye to your loved one once.

    On the issue of John Galliano’s arrest: I’m not exactly surprised that a western European country has made pro-Hitler, pro-Jews being gassed comments illegal. One of the worst genocides in modern memory happened a few hours drive away from France only 65 years ago. It is our luxury that public anti-Semitism has never lead to the deaths of over 6 million people on our continent. European Jews aren’t so lucky. European history has been severely tainted by the holocaust and I don’t blame them for making public anti-semitism illegal in order to write the incalculable wrong that has been done.

  20. Opheelia
    Opheelia March 2, 2011 at 4:51 pm |

    @libdevil:

    In my state, what you’re describing would fall clearly under our harassment statute, and would make the person eligible for an Injunction Against Harassment. All you have to prove for an injuction is that a series of acts over a period of time that would harass, alarm, or annoy a reasonable person occurred. If a person follows you around, saying horrible shit after you told them to stop, you’ve got a criminal offense.

    But the WBC protests are considered political speech, and doesn’t sufficiently target an individual. I wonder what will happen when someone sues not for the protests at funerals, but for the inflammatory and cruel shit they post on the internet. It’s my understanding that they use that to provoke violence, but avoid breaking laws during their picketing. At least one of the Justices said that the ruling does not mean that EVERYTHING they do is protected, just the specifics in this case.

    And I totally agree that the WBC is a scam. Their whole operation is funded by lawsuits.

  21. Kristen J.
    Kristen J. March 2, 2011 at 5:15 pm |

    Opheelia,

    Right, but in each case if speech itself is examined in the context of 1st Amendment protections and lower courts do not have sensical guidance on this issue so they *often* determine that things that look like harassment to you and me are protected speech and can not be regulated by the state irrespective of what the law says.

  22. Sienna
    Sienna March 2, 2011 at 5:27 pm |

    Hugo: And to clarify, I think Galliano should have been fired by Dior.But I also think he should have the right to praise Hitler, and even to wish that someone’s ancestors had been gassed, without facing criminal charges.That’s where my American reverence for speech trumps all.  

    Then why do you think he should have been fired if you think he has the right to make those comments? Besides, doesn’t it make more sense for someone to be fired based on job performance (or other job matters) and not for their personal opinions/beliefs?

  23. V.E.
    V.E. March 2, 2011 at 5:32 pm |

    When you said, “Look, I hate these guys so so so much, but this is the right decision”, I was reminded of this, wherein two webcomic creators talk about how they hate being aligned with racists.

  24. Kristen J.
    Kristen J. March 2, 2011 at 5:54 pm |

    Argg…imagine that last comment was written with sense and grammar in mind. We don’t have internet yet and typing on a phone is not condusive to solid legal writing or even writing period.

  25. Matt
    Matt March 2, 2011 at 5:59 pm |

    I think the decision that a tort judgment offends the right to freedom of expression is bonkers. You should have the right to say what you want, but also you should have to endure the consequences of your speech. This decision is chilling effect doctrine run amok. Speech or expressive acts should not be a metaphorical “sword fight,” fought with phalluses hewn of discourse. The marketplace of ideas is an absolutely terrible model for civil discourse because it does not accurately address how people deal with rhetoric or how people use it. (RAV v. City of St. Paul, anyone?)

    I am not saying that we should regulate the propriety of viewpoints, but rather that we should be able to regulate the intentions of people’s expression. The records of First Amendment cases get flushed out plenty by the time that they’re decided to make a finding as to the intentions of the speaker. Are the speaker’s intentions to exploit or injure others with his expression, her words? If so, then I think that those so injured should be able to recover. The facts in Snyder v. Phelps are probably the limit of my concept of this exception to First Amendment protections.

  26. LeftSidePositive
    LeftSidePositive March 2, 2011 at 6:23 pm |

    I think it’s a question of when speech crosses the line from “speech” to “harassment,” or in other words, when are you swinging your fist and when are you punching someone in the face?

    Just because you have a right to speak does not mean you have a right to force people to listen to you. I also think people need the right–and the protection–to handle major life events in peace. This includes weddings, seeking medical care, funerals, and similar “big ticket items.” Fred Phelps and his ilk have the right to say whatever they want (as odious as it is) but they DO NOT have the right to target individuals at a funeral to do so. They can go to some other street corner to exercise their right to free speech, while the individuals can enjoy their right to privacy.

  27. Jim
    Jim March 2, 2011 at 7:10 pm |

    Jill: I think it’s a stretch to say that God Hates Fags is a threat.

    In fact it has operated as the opposite. This kind of thing has rubbed a lot of people’s noses in thier own homphobia. Nicholas is right.

    Kristen J.: I’ve had a cross burned in my neighborhood aimed at getting me and people like me to leave the area. Its fucking frightening.

    And that is different because of the historical context of cross-burning. It usually has been a threat.

    I’m a gay man and an Army veteran. I have a lot of feelings about Fred Phelps and his filthy nest of incest, but fear is not one of them. In between bouts of wishing someone would just roll past in a gas tanker and hose them down at one of their displays, I wish them well and hope they continue making homophobia look as ignorant and evil as they do.

  28. Jim
    Jim March 2, 2011 at 7:12 pm |

    Oh, and I am ashamed of that first reaction. Doesn’t mean it doesn’t happen.

  29. Hugo
    Hugo March 2, 2011 at 7:31 pm |

    Jim, in this case the WBC was on a public street 1000 feet (three football fields) away from the funeral. It’s not like they were looming over the coffin. How much further away does the buffer zone need to be?

    I will surely never say this again: Justice Roberts spoke for me today.

  30. karak
    karak March 2, 2011 at 8:31 pm |

    This is a perversion of the First Amendment, and this country has forgotten what that Amendment is for. It allows you to speak in a PUBLIC sphere without fear of being arrested BEFORE you speak. But after? They have every right to arrest you/prosecute you. The First Amendment was intended to keep the government from arresting people or shutting down newspapers on the SUSPICION they were about to break a law (we can, of course, arrest people on suspicion/planning to commit murder, assault, treason, etc). But once you actually say it, there are consequences.

  31. William
    William March 2, 2011 at 8:38 pm |

    Screaming fire in a theatre is not the issue, the issue is screaming a false claim that there is a fire in the theatre that incites a riot and endangers peoples safety. The first amendment to the constitution specifically includes the word “peacefully” in the right to assemble. When anyone gathers together as a group under the banner of hate and the promotion of incendiary rhetoric under the guise of “freedom of expression and freedom of speech, then they are (not) protected under “peaceful assembly” rights.

    I also will not every defend their right to incite riots and endanger the public anymore than I would fight for the rights of any radical organization to peddle their destructive ideology.

  32. RD
    RD March 2, 2011 at 9:27 pm |

    Were they really inciting riots? And you don’t support the rights of radical organizations to peddle ideology? I’m surprised you feel that way. Especially with the FBI already trying to shut down every left-wing organization they can. It goes both ways…

  33. Kristen J.'s Husband
    Kristen J.'s Husband March 2, 2011 at 9:33 pm |

    To provide a different perspective, freedom of speech in the form delineated by the US judicial system is, in my view, contra to equality where we begin with an unequal distribution of power. Those with power will be heard with greater authority and will be able to use speech as a tool of oppression. The ability of the oppressed to speak out cannot is not sufficient to counter the din of the oppressor. In that sense freedom of speech falls into the same freedom vs. equality trap that plagues all societies that begin with unequal distributions of power. In other words, freedom supports existing power structures rather than promoting equality. From that perspective I don’t find Robert’s argument compelling as a philosophical position. Our 1st Amendment protections may (or may not) be the best we can come up with, but as a principle they are far from ideal in this less than ideal world.

  34. Opheelia
    Opheelia March 2, 2011 at 11:36 pm |

    @Kristen J.: I completely agree that both the criminal and civil legal systems regularly confuse harassment and intimidation with free speech. I was just pointing out that there are potential legal and civil remedies for the behaviors devil was describing, as they target an individual.

    @LeftSidePositive: How do we define life’s “big ticket items”? From a personal perspective, I agree with you, but I’m wondering how that translates into practical legal terms. For instance, I wouldn’t protest at a Mormon wedding, even though I deplore their involvement in Prop 8. But should I be legally prohibited from doing so? This decision says I’m not.

    I think that part of the problem is that the vast majority of people simply can’t fathom imposing their political arguments on a major life event involving strangers. (Except anti-choicers who protest third trimester abortions. They’re really no better than the Westboro folks, in my eyes.) We don’t do that because it’s tasteless. We don’t do that because we feel there’s a time and a place.

    But I didn’t tsktsk about people protesting outside Mormon Temples after Prop 8. Is that different because it targets an institution? Because it could be argued that the WB”C” targets the military…

  35. Tyler
    Tyler March 2, 2011 at 11:48 pm |

    Renee: Thank you for your post. It definitely put the history of the SCOTUS into perspective on this issue and I feel that I on the whole agree with you (to sort of abandon my strict prior position) but I do think that history should still play a larger role in the decisions of the SCOTUS after now reading the opinion and feeling it sort of purports a matter of fact rhetoric. While I agree as Jill pointed out that a sign that says “God Hates Fags” is protected that in something to say about the history of violence against specific groups within society and the way that could influence a ruling in civil/criminal court. I think it would be a category error to conflate the anti-fur, anti-sexism, etc political protests (i.e. “Fur is murder” violence done) and what Phelps is doing (“Turn or Burn” or “Ur Going To Hell” violence to be done). In some way I think the SCOTUS has a stake in attempting to account for the history of violence done against specific minorities (say abortion providers, queer people of color, women who receive abortions, etc.). I guess I am arguing for a more rigorous engagement with the histories that underlie these specific moments of hate speech rather than just saying all speech should be protected as speech. Each group purports a very different view of society (their telos) and I believe an analysis of ‘is there violence done/or a threat imminent?’ collapses the issues at hand in a culturally dry view of social powers and forces.

  36. David
    David March 2, 2011 at 11:54 pm |

    You know, I love the ACLU. If there is any political affiliation that I think is spot on 99% of the time – it’s them.

  37. wondering
    wondering March 3, 2011 at 12:40 am |

    I know all y’all Americans think free speech is sacrosanct, but there are a lot of good reasons to have limits on speech, particularly around hate speech. Hate speech is not simply that speech that is obnoxious or controversial, it’s speech that “incites violence or prejudicial action against or by a protected individual or group, or because it disparages or intimidates a protected individual or group”. So in Canada, we recognize that there are groups of people who are often targeted or discriminated against and we don’t allow folks to *publically* incite violence against them. (What you say in the privacy of your own home, nobody cares about. What you say in public, however, you are responsible for.)

    You don’t allow people to yell fire in a crowded theatre if there isn’t a real emergency – even in the US it’s recognized that doing so may cause injuries and death. Why can’t the US courts put 2+2 together and figure out that hate speech also promotes discrimination, injuries, and death – it’s just delayed a little.

  38. Kristen J.
    Kristen J. March 3, 2011 at 1:02 am |

    @Jim,

    I hear that you don’t find them frightening and don’t perceive it as a threat, but I don’t think that necessarily means it *cannot* be a threat or could not be frightening in a different circumstance. I brought up cross burnings because even SCOTUS recognizes that a cross burning is a threat, but beyond that intellectual sign post the court has been remarkably incoherent about what is and is not a true threat. Even cross burnings cannot be presumptively threatening.

  39. ellid
    ellid March 3, 2011 at 7:15 am |

    @Cactus Wren –

    One thing that I’ve noticed is that Phelps and his family/cult rarely, if ever, visit areas with large, well-organized gay populations like San Francisco, Greenwich Village, the South End of Boston, or Northampton, Massachusetts. I’ve also never heard of them showing up at a Pride Day parade or a big, well publicized gay event. I suspect it’s because like most bullies, they’re essentially cowards.

    And yes, I think at heart it’s a scam. It’s a particularly vicious scam, and it may well be based in religion, but Fred Phelps started his career as a grifter sending his kids out to sell candy for fake charities, and I don’t think he’s changed that much.

  40. Aaron
    Aaron March 3, 2011 at 11:23 am |

    Wondering –
    A number of people on this thread have said some very nasty things about the WBC (one of the most reviled minority groups in the USA, especially since they started protesting at the funerals of “our fallen heroes”) which of them do you think should be arrested for hate speech?

    If your answer is none (as mine is) how do you distinguish saying very nasty things about the WBC from saying very nasty things about homosexuals or Catholics or soldiers? The only difference I can see is that I agree with the nasty things said about the WBC but I disagree with and am upset by what they say about homosexuals. I can’t come up with language for a hate speech law which would allow the government to arrest and prosecute the WBC crowd, but not allow them to arrest and prosecute some of the people who have posted on this thread. Can you?

    And that is the problem I have with hate speech laws. There is no way to distinguish between strident, but legitimate, criticism and hate speech other than one’s own gut feeling that some speech is correct and other speech is repugnant. And, while I trust myself to distinguish between the two, I have no faith in the government being able to do so.

  41. Aaron
    Aaron March 3, 2011 at 11:38 am |

    Actually, on a slightly pedantic note: “Falsely shouting fire in a crowded theater” comes from a Supreme Court case which was overturned in 1969(it is no longer good law) which illustrates exactly why I support the Phelps ruling and oppose the government regulation of speech in general.

    The case the quote comes from, Schneck v. United States, held that the United States government was allowed to put people in jail for simply saying something that created a substantial risk of an outcome that Congress opposed (a quick Google search shows the exact language is, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent.”)

    In Schneck the Supreme Court ruled that the government could jail a man for the crime of being a Socialist and handing out pamphlets that were in opposition to the draft. That was what was like falsely shouting fire in a crowded theater. That is what the government power to regulate speech is used for. A government with the power to regulate speech is unlikely to use it to aid the oppressed, it is, however, likely to use that power to oppress further.

  42. Kristen J.
    Kristen J. March 3, 2011 at 11:47 am |

    @Aaron,

    I think your constructing a false dichotomy here. It does not have to be choice between a free for all and a free for none. Language intended to incite violence (or intimidate) is not equivalent to me saying (without the intent to incite violence or intimidate) that I hate WBC. I don’t think these difference between people intending to cause harm and those who don’t are so amorphous as to make regulating harmful speech impossible.

    But by making speech sacrosanct, by reinterpreting the FA to give people with the intent to cause harm the benefit even where there is no doubt, we have made it impossible to make any meaningful distinctions or have any reasonable regulation of speech.

  43. trixie
    trixie March 3, 2011 at 11:58 am |

    imma go with wondering here:

    in the same way that the separation of church and state seems to lend american religiosity some of its more wackadoo flavors, i think the codified Right To Free Speech leads us to be a little bonkers about what’s actually a kinda complicated question of access, platform, expression, and (oh right) frothing anti-semitic white supremacist fag-bashers screaming at people who are trying to bury their kid.

    because since it’s such a strong legal protection, with so little recourse to context, it becomes a matter of principle to protect ALL speech. and the way the US discourse proves that ALL speech is being protected is by vociferously defending the most thoroughly, irredeemably hateful speech. And then we’ve cleaved to our principle, so we start being proud of ourselves for how well we protect speech, and in the process end up transferring some of that principled pride over to the reprehensible people who allowed us to make the gesture.

    and then somewhere along the way we forget that the amendment is a State’s limitation on itself, and we start thinking that our principled defense of freedom of speech means blandly accepting, and granting a platform to, people like phelps. or that the First Amendment is somehow an individual moral pronouncement, suggesting that we shouldn’t be offended (in the sense of “responding as if to an attack”).

    So instead of just saying “police can’t arrest you for saying that” we say Dior shouldn’t fire Galliano, marginalized european muslim populations shouldn’t protest against the muhammad cartoons, antis protesting at abortion clinics shouldn’t be blocked by an army of escorts, phelps should be politely ignored, and the Nazis should be allowed to march unimpeded through the streets of Skokie.

    And i’m inclined to think that States aren’t moral actors. not ever. and as such we should regard the constitutional protection of free speech on par with the constitutional guarantee that slave states can count 3/5 of their chattel population when determining their representation in the legislature. Which is not to say “Free Speech Is Slavery,” it’s to say both of those provisions are opportunistic political wranglings from the particular circumstances of the American Revolution, and there ain’t nothing sacred about either of em.

  44. Athenia
    Athenia March 3, 2011 at 12:18 pm |

    I’m kinda surprised that this group can’t be prosecuted for regular harrassment or even sexual harrassment (rather than free speech). One commenter said it’s because their speech isn’t directed specifically at the individual–but, I mean, they are at an individual’s funeral.

  45. Aaron
    Aaron March 3, 2011 at 12:29 pm |

    Kristen J –
    I disagree with your claim that we can distinguish those two types of speech. I honestly cannot come up with language that would criminalize what the WBC has done, but not what is being done on this thread.

    You suggest that the intent to cause harm is the distinction – and I assume you mean physical harm not psychological harm (if I am wrong about that, I apologize for not responding directly to your argument). But how do you propose we determine intent to cause harm (looking only at speech, not actions which can be legitimately criminalized)? How would you prove that the WBC people intended that people take their protest as a call to violence against homosexuals, Catholics, or soldiers? How would you prove that in a way that I couldn’t use the same sort of proof to show that posters on this thread who (rightly) say mean things about WBC didn’t also intend harm to result? I don’t think it can be done. The same goes for the intent to intimidate.

    I do agree that this means we can’t regulate speech – or at least political speech – but I think that’s a good thing. I want jerks like the WBC to feel free to come out in public and say all the nasty hateful things they think because 1) It lets me know who they are and lets me know to stay away from them and 2) because it makes their fellow travelers look like the hateful bigots they are. I also want jerks at the WBC to be free to say nasty hateful things because I hold unpopular beliefs and I someday may want to express views which the government might want to punish me for expressing.

  46. Kristen J.
    Kristen J. March 3, 2011 at 1:04 pm |

    @Aaron,

    If you see my comments above, you’ll note that I don’t think WBC’s speech should be criminalized, but I can foresee other circumstances where people could use that same language to threaten or intimidate. Standing outside an individual’s house for example.

    Courts frequently make determinations of intent based on context. The cornerstone of western criminal judicial philosophy is mens rea. How do we determine whether someone intended harm or was merely negligent when driving their car? The principle is the same.

  47. Aaron
    Aaron March 3, 2011 at 1:25 pm |

    Trixie –

    You say that you agree with Wondering and you say that we should understand the First Amendment to mean that the “police can’t arrest you for saying that”, but Wondering is saying exactly that. Wondering is advocating for hate speech laws – for the ability of the police to arrest you for saying that.

    I agree with most of what you said whole-heartedly. Private restrictions on speech are fine. The WBC crowd sure can’t do their thing on my private property. But, here’s the thing, what they did do was comply with every single local law governing protests. They stayed where they were supposed to stay, they didn’t violate the noise ordinance, and made sure their protest was properly permitted. The only thing that distinguishes what they did from any other protest is that what they had to say was morally repugnant (and, even then, that only distinguishes them from some other protests). So to advocate for criminalizing what they did (as Wondering does) or to advocate for the state to be able to take their money and property and give it to another person (as those opposing the decision are) is to advocate for state action against speech based solely on the content of the speech.

    I don’t think anyone (certainly not anyone here) is saying “Dior shouldn’t fire Galliano, marginalized european muslim populations shouldn’t protest against the muhammad cartoons, antis protesting at abortion clinics shouldn’t be blocked by an army of escorts” and I know no one here is saying “that we shouldn’t be offended” and saying otherwise is a straw-man. The fact of the matter is we are talking about government action, not private action.

    While I don’t think the First Amendment is sacred, I do think that it is a really good idea. In part that is because I agree with you that States don’t act morally, and I think that any limit on the state’s power is a good thing – especially when that limit (in theory) prevents the State from silencing voices of dissent. Even if, sometimes, those voices of dissent are saying noxious and hateful things.

  48. Aaron
    Aaron March 3, 2011 at 1:38 pm |

    Jill,

    But the WBC didn’t get a group of 10 people together to surround anyone and scream at him that he’s an evil monster who should be killed. If the WBC did that, it would clearly be criminal (because the act, not the speech, should be criminal).

    But, here, the WBC stayed in the designated protest space (1,000 feet from the church where the service was held and 200-300 feet from the funeral procession), complied with all local laws governing protests, and said really hateful things about several groups of people.

    The question isn’t could the WBC do something so vile that it should be criminal, of course they could. The question is did they, in fact, do something that should be criminal? I don’t see how you can legally distinguish what the WBC actually at did from the strident criticism of them in this post.

    That isn’t intended as a criticism of the post, I agree with you that the “Westboro Baptist Church is made up of some of the ugliest, most hateful and vile people on the planet” and I think that people should express such opinions publicly. My point is that I don’t think we can’t criminalize what WBC did without criminalizing what I just did and so I think we should criminalize what the WBC did (rather we should do exactly what you did and call them on their BS).

  49. RD
    RD March 3, 2011 at 2:03 pm |

    Kristen J.’s Husband: To provide a different perspective, freedom of speech in the form delineated by the US judicial system is, in my view, contra to equality where we begin with an unequal distribution of power.Those with power will be heard with greater authority and will be able to use speech as a tool of oppression.The ability of the oppressed to speak out cannot is not sufficient to counter the din of the oppressor.In that sense freedom of speech falls into the same freedom vs. equality trap that plagues all societies that begin with unequal distributions of power.In other words, freedom supports existing power structures rather than promoting equality.From that perspective I don’t find Robert’s argument compelling as a philosophical position.Our 1st Amendment protections may (or may not) be the best we can come up with, but as a principle they are far from ideal in this less than ideal world.  

    That’s a good point…

  50. Jim
    Jim March 3, 2011 at 4:09 pm |

    Hugo: I will surely never say this again: Justice Roberts spoke for me today.

    Totally, for me too. They were not only abiding by all conditions inposed, but on a deeper level this is an issue of citizenship. The Constitution is meaningless unless it applie to every citizen.
    The US respects and protects the filthiest kinds of religious deviancy, and I am very proud of that. And God knows we have lots and lots and lots of religious deviants.

    And even on the tactical level, as I said, these people are the best weapon we have ever have to expose the depth and extent of homphobia in the culture. they are priceless. Who else would have linked the reverence the public feel for the war dead with the hatred and discrimination gay people face? It’s a priceless gift.

    And another thing – these people live of the money they get in court settlements when mourners attack them. They’ll never get a dime from me.

  51. Jim
    Jim March 3, 2011 at 4:33 pm |

    Aaron: The only difference I can see is that I agree with the nasty things said about the WBC but I disagree with and am upset by what they say about homosexuals.

    Vry good question. There is however another very obvious reason they are different – historical context. The US has a long history of gorss and still ongoing discrimination agaisnt LGBT people and none whatsoever against Portestants as Protestants, and so far the name “Baptist” has been soem cover for these people I am sure. There is a huge degree of Protestant privilege in this society – as much viciousness as Dr. Martin Luther King Jr. faced, you can be sure that Rev. Martin Luther King Jr. was spared a lot that Fr. Martin Luther King Jr. would not have been – and this privilege leaks off onto just about every other group that decides to call itself religious, the gross violence the Mormons were subjected too notwhstanding.

    And I agree with you that hate speech laws are problematic, in all cases.

    wondering: Why can’t the US courts put 2+2 together and figure out that hate speech also promotes discrimination, injuries, and death – it’s just delayed a little. wondering

    Because it’s a slippery slope form that to laws against offensive speech such as balsphemy. US law does not exempt speech that incites to actual violence, which is different from and a step beyond hate speech. The situation in Canada is unsurprising and the fact that we reject it should be equally unsurprising.

    Kristen J.’s Husband: In that sense freedom of speech falls into the same freedom vs. equality trap that plagues all societies that begin with unequal distributions of power. In other words, freedom supports existing power structures rather than promoting equality.

    Yes, well, that’s every society in every age, so we have to do the best we can. Things are better now than they used to be; where the freedomn of the press use ot extend only to those who had a press, these days we have the interentt and an explosion of free speech of every kind. Even China catches hell trying to control it – it doesn’t even require that a government recognize any rights of the citizen at all.

    Kristen J.’s Husband: From that perspective I don’t find Robert’s argument compelling as a philosophical position.

    It’s not very satisfying perhaps, but there is only a tangential connection between philospohical rigor and logical consistency on the one hand and law on the other, because the law has to deal with illogical and irational social realities and fashion compromises between conflciting interests, many of them of them based on plain injustices. “If you like sausage or law, do not watch either being made.”

  52. William
    William March 3, 2011 at 4:44 pm |

    First, to clear up any confusion, I’m the guy who works as a therapist and generally uses this tag.

    Screaming fire in a theatre is not the issue, the issue is screaming a false claim that there is a fire in the theatre that incites a riot and endangers peoples safety. The first amendment to the constitution specifically includes the word “peacefully” in the right to assemble. When anyone gathers together as a group under the banner of hate and the promotion of incendiary rhetoric under the guise of “freedom of expression and freedom of speech, then they are (not) protected under “peaceful assembly” rights.

    Except…you’re not paying attention to punctuation or context. First, freedom of speech grammatically separate from the right to “peaceably assemble.” Theres a semicolon between them and its a meaningful bit of punctuation. The right to speak and the right to appear in public are separate (if thematically related) rights. Second, the men who wrote the First Amendment were hardly supporters of peace and nonviolence. They were less than a generation out from starting a violent (and bloody) revolution and they followed the First Amendment with the right to keep and bear arms. You might not like that, you might not agree with it, but its difficult to read the US Constitution as a document which requires peace when right under the rights of conscience it enshrines a right to the tools necessary for violent revolution.

    Its also worth noting that a “peaceable” exception to the right of assembly would have strangled gay pride marches in their infancy given that they were initially celebrated with teeth bared on the anniversary of Stonewall. It would have killed the early US American labor movement because there was a current of violence in that struggle as well. The Chicago Police in ’68 would have been legally justified in their crimes because the Weathermen and other non-peaceful groups were present in Grant Park. A very good argument could be made that a “peaceable” exception would give the police the right to shut down things like the protests in Oakland after they murdered a handcuffed man in a train station because the protesters were far from peaceful. Any time you put enough people together they become a threat because the very act of protest is a reminder to the government that if the people get pissed enough there are more citizens than elected officials and their employees. Large groups are inherently threatening.

    Hate speech may be disgusting, but by banning it you give the government the power to banish speech which officials merely dislike because not everyone will agree on what counts as hate. WBC might disgust you, but imagine what would disgust Rick Santorum or George W. Bush. The thing about rights is that they are absolute and we enshrine them because we believe that they good they do outweighs their potential abuses. The Westboro clan might be morally repugnant, but they aren’t violent and so they need to be tolerated so that people with something valuable to say do not live in fear of being silence. People like Westboro outline the limits of our freedoms, they’re the canaries in the mine.

  53. Aaron
    Aaron March 3, 2011 at 5:26 pm |

    Jim,
    While I, obviously, agree with you that LGBT individuals have long been discriminated against in the USA and that Protestants qua Protestants have not, I don’t think that is a tenable legal distinction for a couple of reasons.

    First simply saying a long history of discrimination is not enough. If that is the basis for the distinction, then we have to ask how long and what kind of discrimination. Essentially you are asking the courts to play the oppression olympics and decide some oppression has lasted long enough and has been bad enough that the oppressed people get special protection and some has not lasted long enough or has not been bad enough to warrant such protection.

    Second you have to ask how we decide what groups people belong to. Is the WBC Protestant? If so, there is no long history of oppression in the USA. Is the WBC a dissident minority religion? If so, then there is a long history of oppression (even if they are a dissident minority Protestant religion, see Mormons, Jehovah’s Witnesses, 7th Day Adventists, Quakers, etc.). Or is the WBC a group of Kansans? Or are they anti-military activists?

  54. Aaron
    Aaron March 3, 2011 at 5:26 pm |

    Kristen J.,

    Somehow I missed your post @48, I apologize for that. I misunderstood where you were coming from before. I was initial responding to a comment about hate speech and laws criminalizing it, so I took your response to me to be along those lines.

    I agree with you about intent and see no problem with using the words of a defendant to prove intent. But in the case you propose what would be criminal would be the gathering outside of the house with intent to intimidate (the language of the gathering would be evidence of intent and not the crime itself). I have no problem criminalizing bad acts, my concern is with the desire to criminalize (or civilly punish) bad speech.

  55. Jim
    Jim March 3, 2011 at 6:31 pm |

    Aaron: If so, then there is a long history of oppression (even if they are a dissident minority Protestant religion, see Mormons, Jehovah’s Witnesses, 7th Day Adventists, Quakers, etc.).

    This one is shaky. You call those groups, but each one of those groups was persecuted by Protestants specifically because Protestants did not think they were Protestant, nomal, whatever.

    Aaron: Essentially you are asking the courts to play the oppression olympics and decide some oppression has lasted long enough and has been bad enough that the oppressed people get special protection and some has not lasted long enough or has not been bad enough to warrant such protection.

    Aaron, that ship sailed a long time ago. What you say is so difficult has been the basis for a whole body of civil rights law and specifically for AA. Lawyers here, help me out. This is pretty solidly settled law.

    William, I loved that whole comment. All of it.

  56. Aaron
    Aaron March 3, 2011 at 7:11 pm |

    Jim,
    “each one of those groups was persecuted by Protestants specifically because Protestants did not think they were Protestant, normal, whatever.” I think that proves my point — rather than refutes it. A group can both be and not be a Protestant, a group can both be and not be privileged. So to simply say WBC are Protestants and privileged (so it’s ok to say mean things about them) is true and not true at the same time. But, in a court of law it has to be true or false, but not both. Which controls? For the purpose of the law are they (or the Mormons, or the 7th Day Adventists, or the Jehova’s Witnesses, or the Quakers, etc.) Protestants who we could legally say hateful things about under your rubric or are they disenfranchised minority groups who we cannot legally say hateful things about under your rubric? How do you propose we decide?

    I am a lawyer (and none of what I say is legal advice or blah, blah, blah blah…) and you are simply wrong about this being the basis for civil rights law. (What I say following is a simplified explanation, hopefully enough to communicate the idea without being pedantic or overly boring)
    When it comes to restrictions on what the government may do, the basis of civil rights law is that the government may not discriminate on the basis of race, religion, sex, national origin, etc., (unless it absolutely must for some very important reason). The laws that the government passes under this theory are (in theory) supposed to be used to end that discrimination and in some rare cases rectify past government discrimination. A law creating quotas favoring whites is subject to the exact same level of scrutiny as a law creating quotas favoring African-Americans . A law creating quotas favoring men is subject to the exact same level of scrutiny as a law creating quotas favoring women.
    The courts do not weigh how bad particular discrimination is, or how long it has gone on. They ask whether there is discrimination (in the law being challenged) and if so whether the discrimination is necessary for an important government purpose in the case of race based discrimination or whether the law advances an important government interest in the case of gender based discrimination. If it isn’t necessary for (or doesn’t sufficiently advance) a compelling government interest it is struck down.

    When it comes to restrictions on what private citizens can do (other than prohibitions on owning slaves which come from the 13th Amendment) the federal laws come from the government’s ability to regulate commerce. The idea is that discrimination is bad for business so Congress can ban it. Again, there is no question about how bad the discrimination was or how long it went on, the Court’s ask if the discrimination was banned by Congress and make sure the ban doesn’t violate the Constitution (say the 1st Amendment) .

    Basically if there is (illegal) discrimination right now you are in trouble no matter how long it has been going on or how severe the discrimination is.

  57. Kristen J.
    Kristen J. March 3, 2011 at 8:22 pm |

    @Aaron,

    Except that gathering is also a protected activity and many actions fall in that grey area of “expression.” My prior example is instructive here. Pounding on her door saying women who get abortions should die should not be protected speech. Pounding on her door or being on her property was not considered a “bad act” since his name was still technically on the lease. The bad act was the verbal threat and to attribute the bad act to his other “actions” is to elevate form over substance.

  58. Aaron
    Aaron March 3, 2011 at 9:17 pm |

    Kristen J.,
    I’m sorry, but I’m not sure I understand your point about gatherings.

    As far as the case you mention goes – obviously I don’t know the state you practice in, or its local laws, or its local judges, but I’ve done work helping people obtain restraining orders. Speaking from my experience I can tell you that where I practiced a plaintiff would not receive a restraining order, if her abuser opposed the order and did what you describe and nothing else. It wouldn’t matter what he was shouting (short of making an explicit and direct personal threat). To me that’s a problem with restraining orders being far too difficult to obtain (and too dependant on judicial discretion) not a problem with free speech. (And in the case you describe, [actually on second thought it may violate the code of conduct to impugn a judge’s character]).

    That being said, I don’t think it’s elevating form over substance to say that we should punish bad acts not bad words (or to say that is what I think we are doing in most American law). In the case you mention, dido you want him kept away from your client because he acted in a manner that caused her to reasonably fear for her physical well being or because he uttered the phrase “C*nts who have abortion should die in a fire,”? If I uttered that phrase, loudly and publicly, would your client have any cause to take out a restraining order against me? I would argue she wouldn’t, and I think that makes clear that it is the acts and not the words that you and your client were looking to punish – and I think that’s an important distinction.

  59. LeftSidePositive
    LeftSidePositive March 3, 2011 at 9:29 pm |

    @Opheelia, #36

    I would say that “big ticket items” include weddings, funerals, seeking medical care (most certainly including family planning and abortion!), baptisms, and maybe even a bat/bar mitzvah or similar rite of passage (and voting, but there are already voter-intimidation laws for that sort of thing). Others are welcome to suggest any others I haven’t thought of.

    Honestly, I don’t think we have the right to protest a Mormon wedding–yes, I think what they did about Prop 8 was reprehensible, but at the same time, ruining an important life event for those two people and their families would be a violation of their right to privacy. It’s not just a question of tackiness, I really do think it’s a violation from which a free people deserves protection. Now, going to church every week does NOT count as a “major life event” so I think it’s perfectly okay to protest the Mormon Church on any old service, just not one that particularly targets individuals at a major moment in their lives.

  60. Kristen J.
    Kristen J. March 3, 2011 at 10:10 pm |

    @Aaron,

    There is a constitutional right to free assembly.

    Words have context. If I say “I am going to KILL M.” In the context of him failing to clean his whiskers off the bathroom counter, the meaning in that specific context is that I am severely disappointed and somewhat pissed off at him. In the context of purchasing a weapon (a legal act), that statement may take on the quality of a threat.

    If a Klanmember walks down his street every night carrying a baseball bat, stops on the side walk in front of an african american person’s home, and screams racial epithets, that is intimidation (if not a threat).

    Threats are words not physical acts. To tie them to an act so as to avoid regulating “speech” is elevate form over substance.

    So, no those words in a mall, aimed generally should probably not get you arrested. But those words in a shopping mall intending to intimidate or threaten someone, like a former girlfriend or a woman going to a clinic should get you arrested and I don’t think such distinctions are hard to make.

  61. William
    William March 4, 2011 at 12:00 am |

    Honestly, I don’t think we have the right to protest a Mormon wedding–yes, I think what they did about Prop 8 was reprehensible, but at the same time, ruining an important life event for those two people and their families would be a violation of their right to privacy.

    Thats…not how the right to privacy works. Especially not if you’re 1000 yards away from the gathering. Rights restrict the government from doing certain things to people. The right to privacy, for instance, tends to refer to 4th Amendment protections against government intrusions. What you seem to be talking about is either trespassing or some general right to be left alone during certain important times. Nothing here says that the WBC gets to go into the cemetery, just as trying to enter the church during a Mormon wedding would be trespassing and would still be criminal. As for not being offended or having a Very Special Day ruined, well, once you go into public you have to deal with other people. All this decision says is that people have a right to be in a public space, together, saying what they want to say, even if someone else is offended. A good person would show restraint, but the law isn’t about morals or happiness but about rights.

    Liberty needs it’s Fred Phelps and Larry Flints as much as it needs it’s Martin Luther Kings and Thomas Paynes. The latter move us forward, the former keep us from sliding backwards. Defending them, however distasteful or painful, is a necessary evil because history has shown us that most of the time the good guys aren’t in power and even during those rare moments when they are they tend to not be as good as we imagine them to be before they’ve ascended or after nostalgia has worked it’s magic on us. How much would you trust Newt Gingrich to make the decisions about what speech is too painful to be tolerated?

  62. Jade
    Jade March 4, 2011 at 1:58 am |

    Free speach is a beautiful thing, and yes, part of that is allowing people to say things that we don’t want to hear. However, picketing funerals of people who have nothing to do with your purported cause is not free speach. It’s harrassment and invasion of privacy. The Westboro Bigots Commune is nothing more than a group of attention seeking trolls. When picketing venues that could be considered relevant to their “cause” didn’t piss off enough people or get them into the news, they kept poking until they found what really pisses us off.

    The Supreme Court ruling is a travesty of Justice and the American way. It’s a sad, appauling, and indeed embarassing look at the status quo in America.

    It’s also a bit embarassing to see feminists supporting the ruling. If things such as abortion are a private matter, why wouldn’t the funeral of that same person be protected as private among only those whom it concerns?

  63. LeftSidePositive
    LeftSidePositive March 4, 2011 at 2:33 am |

    @William, #64

    I think it is extremely misguided to assume that only governments can infringe upon our freedoms–individuals (and especially groups) can do so too. Traditionally marginalized groups often need the protection of the state even more because the harassment directed at them can be far-reaching, vicious, and systemic. To say “when you go into public you have to deal with other people” is incredibly privileged and callous towards those who are functionally forbidden from going into public and fully participating in their society because others make it unbearable or outright dangerous for them. For instance, the Civil Rights Act declared that even as a private business, you do have to treat your patrons fairly regardless of skin color–so rights are NOT just about limiting only the government’s actions; a healthy society needs to make sure individuals/private entities do not coerce/intimidate/encumber/cheat their fellow human beings as well.

    Think, for instance, of women who have a very real obstacle to obtaining abortion care or other reproductive health services because there are a bunch of determined people who will do everything they can to stop them. Even if those harassers are on public property, if they surround the entrances to where you want to go, and make it impossible to go about your business freely, they are in fact hurting you. Landlords are afraid to rent to abortion providers because of all the harassment. And you call that freedom? The price of living in society? No, to me it’s pretty clear that those people–who are not just saying offensive things, but are TARGETING others to bear the brunt of their speech–are genuinely restricting the freedom of their fellow human beings and need to be moved.

    Spare me the sanctimony on what “liberty needs.” I very clearly affirmed the right of the WBC to say whatever it wants, but not to target others. I have no idea if the particular topography of the funeral’s location meant that 1000ft was secluded, or if it was a visible intrusion…but the theoretical argument still stands that individuals do need to be protected from harassment in order to be genuinely free.

  64. William
    William March 4, 2011 at 8:47 am |

    Traditionally marginalized groups often need the protection of the state even more because the harassment directed at them can be far-reaching, vicious, and systemic.

    Spare me. The state doesn’t protect people. When it comes to oppression the state has the greatest power, and has generally shown the greatest willingness, to oppress. Westboro Baptist Chruch hasn’t institutionalized slavery, doesn’t maintain Guantanamo, hasn’t experimented on citizens believed to be expendable, and doesn’t have the power to use violent force if someone annoys them. They’re a group of tort leeches off in the distance saying something ignorant. Oppression happens at all levels of our society but it is the oppression of the state that has the real teeth.

    The “protection” you’re talking about requires giving the state the power to regulate speech through the use of violent force and hoping that somehow that force doesn’t later get used against oppressed peoples. History tells me that hope is a pipe dream. WBC is an easy argument to make but the power that flows from that means more oppression for oppressed groups because the state the wields that power tends not to care so much about hate speech less severe than the WBC but shows a great willingness to harass and intimidate marginalized groups in the name of national security.

    To say “when you go into public you have to deal with other people” is incredibly privileged and callous towards those who are functionally forbidden from going into public and fully participating in their society because others make it unbearable or outright dangerous for them.

    Its also the current state of First Amendment jurisprudence. There is no right to not be offended. In order to enforce such a right one would have to give the government the power to restrict the rights of other people in your name. Call me a cynic but somehow I don’t think that the people who end up tasting boot in the name of not being offended are going to be oppressed persons. But hey, a government that has caused, systematized, and defended oppression for most of it’s history might change its stripes tomorrow and suddenly side with oppressed persons.

    For instance, the Civil Rights Act declared that even as a private business, you do have to treat your patrons fairly regardless of skin color–so rights are NOT just about limiting only the government’s actions;

    You’re not talking about a right there, you’re talking about legislation. Those are two different things. No one is going to be exposed to the violent force of police for discrimination in a private business. Sued? Sure. Opened to public ridicule and boycotted? You bet. But not beaten, handcuffed, kidnapped, stripped of their rights, and sent off to be raped in a cell.

    a healthy society needs to make sure individuals/private entities do not coerce/intimidate/encumber/cheat their fellow human beings as well.

    I agree, but we’re not a healthy society and asking the government to protect oppressed groups from something like WBC is like asking Ted Nugent to protect deer from a squirrel.

    Even if those harassers are on public property, if they surround the entrances to where you want to go, and make it impossible to go about your business freely, they are in fact hurting you.

    You’re comparing different things, though. WBC was protesting, holding up hurtful signs, and being obnoxious. They didn’t stop anyone from going about their business freely, they just made themselves eyesores. If they had locked arms and blocked access to the cemetery we wouldn’t be having this discussion because they would have committed a crime. Speech and action are not equal.

    Landlords are afraid to rent to abortion providers because of all the harassment. And you call that freedom? The price of living in society?

    Are you honestly telling me you do not see the difference between WBC holding a few signs that say “God Hates Fags” while doing nothing else and a calculated campaign of murder and property destruction leading to a chilling effect for landlords? Can you really not see the difference between forced birth advocates decades-long history of violent intimidation and WBC standing around with signs that make themselves look like asshats?

    No, to me it’s pretty clear that those people–who are not just saying offensive things, but are TARGETING others to bear the brunt of their speech–are genuinely restricting the freedom of their fellow human beings and need to be moved.

    How? Show me what material damage or reasonable threat a group of nasty little people with no history of violence (who are generally severely outnumbered) poses. Yes, they have targeted others to be hurt by their speech, but hurt feelings are not a justification for giving the government the right to restrict speech for everyone.

    Put another way, Dan Savage famously targeted Rick Santorum with speech. It was meant to hurt and horrify Santorum. Theres a very good chance that it is causing real, material harm to Santorum’s presidential chances. Dan Savage even said numerous times in public that the goal of his speech was to hurt and offend Rick Santorum. The particular way Savage went after Santorum was designed to take advantage of Santorum’s deeply held religious beliefs by connecting his name with a sex act that his faith finds repugnant. Are you comfortable limiting that?

    but the theoretical argument still stands that individuals do need to be protected from harassment in order to be genuinely free.

    But without a useful material way of defining harassment all you end up doing is giving an oppressive government more power to oppress. WBC has been very careful to be offensive without actually threatening or intimidating anyone, all they do is speak in public. To respond to that with calls for government action is to open marginalized people up to more abuse, not less.

  65. Jim
    Jim March 4, 2011 at 11:12 am |

    Kristen J.: Threats are words not physical acts.

    William: Speech and action are not equal.

    Actually in some cases they can be. Speech acts are just that, acts, but they only become acts when the person speaking has some power or authority that mekaes their speech inot an act. A justice of the peace or a clergyman is actually doing something when ze says “I now pronounce you man and wife” where if I said it, it would not be a speech act. If a lieutenanayt tells a soldier “fire” that is a speech act, one he has ot respond to or face legal consequennces, where if some random civilian says that, it’s not a speech act. Likewise a woman holding a knife to her husband’s chest screaming she is going to kill him….as opposed to a kid on the sidewalk yelling he’s going to murder you. Etc.
    And that’s why when the WBC stands 1,000 yeards away raving, they are not committing any kind of an act.

    William: Especially not if you’re 1000 yards away from the gathering.

    A thousand yards away is a kilometer. That’s a pretty significant distance. It really makes the privacy argument fade.

    William: The state doesn’t protect people.

    Wow. Reaganite much? Ahistorical much? Historically proetction has been one of the state’s core competences, not only externally from invasion, but internally in citizen on citizen matters. The Bhagavad Gita laid that out a very long time ago. The whole court system is the state protecting people from each other, and the lawyers here are part of that system.

  66. Aaron
    Aaron March 4, 2011 at 12:02 pm |

    Jim: Historically proetction has been one of the state’s core competences, not only externally from invasion, but internally in citizen on citizen matters. The Bhagavad Gita laid that out a very long time ago. The whole court system is the state protecting people from each other, and the lawyers here are part of that system.

    I’m going have to disagree with you on that. I think nearly everything William said was right, if anything I think he was a bit too gentile on the state.

    I’ll grant that some governments do a good job of protecting some citizens from some of the harms caused by invading armies directed by other governments – but that’s not saying much.

    The court system is not about protecting people from each other it about punishing people after they have harmed someone – or if you want it put less negatively providing a victim with restitution after they have been harmed. Criminal law is all about after the fact punishment – it is illegal (and I hasten to add immoral) to punish someone because you think they might commit a crime. The tort system is about punishing someone who has already wronged you in some way. Contract law is about punishing those who break their word (really contract law is about restitution and making business work, but you get the idea). If I’m in court it is because something bad has already happened. Even when I am helping a client seek a restraining order it is because my client has already been harmed – though in that case we are also trying to prevent future harm.

    In the rare instances where one actually gets a court order preventing a harm before it happens, it is almost always a court order preventing the government from harming people – and to that extent the court system is the government protecting people from itself (not from eachother).

    As to the Bhagava Gita – not that it especially informs the behavior of the government of the USA – I don’t think it proves what you want it to prove. Governments informed by the Bhagava Gita were more than capable of oppression, like enforcing the caste system.

  67. Tom Foolery
    Tom Foolery March 4, 2011 at 1:55 pm |

    Historically proetction has been one of the state’s core competences, not only externally from invasion, but internally in citizen on citizen matters.

    No doubt the former inhabitants of Auschwitz and Dachau would disagree with you, if they were able.

  68. William
    William March 4, 2011 at 2:33 pm |

    Wow. Reaganite much? Ahistorical much?

    Slavery, Jim Crow, the War on Drugs which has lead us to have the largest prison population in the damned world, forced sterilization of undesirable, the ’68 police riot in Grant Park, the murder of handcuffed citizens in train stations, obscenity prosecutions, rendition, Gitmo, prison rape being treated as a joke, two concurrent wars of occupation, endemic police misconduct and violence, the Tuskegee syphilis experiment, police treated rape as a lowest law enforcement priority, inner city neighborhoods basically abandoned to drug gangs created by a sloppy prohibition scheme rooted in racism and a desire to keep white guys employed after booze became legal again, need I go on?

    Take your lazy arguments, name calling, and starry eyed privilege elsewhere. The rest of us live in a world where the state is a prime oppressor. A senile christianist thug ain’t got nothing to do with it.

    Historically proetction has been one of the state’s core competences, not only externally from invasion, but internally in citizen on citizen matters.

    Maybe in white flight suburbs. To the rest of us that “protection” looks suspiciously like keeping certain kinds of people in their place through violence.

    The whole court system is the state protecting people from each other, and the lawyers here are part of that system.

    The government is a means of maintaing power and privilege for those who hold the reigns while providing just enough protection to those power people’s friends and family to keep a violent revolution from installing a different set of powerful people.

  69. libdevil
    libdevil March 4, 2011 at 4:24 pm |

    Did somebody really call a bunch of famous rich white conservative Christians a reviled minority in this thread?

  70. Aaron
    Aaron March 4, 2011 at 4:41 pm |

    libdevil: Did somebody really call a bunch of famous rich white conservative Christians a reviled minority in this thread?  (Quote this comment?)

    I did and I stand by it.

    The WBC is hated by the Left because of their hateful homophobia. They are hated by the Right (and many others) because they protest at the funerals of soldiers. Many Christians hate them for their “God hates…” rhetoric. Many Americans hate them for their “God hates America” rhetoric. I could go on… But, yeah, as a group they are one of the most universally reviled entities in the USA.

    And I don’t think there is any debate that they are a minority. They hold a set of religious beliefs that the majority of Americans (and people world-wide) reject. They hold a religious view that the majority of people in their home state of Kansas reject. By any sensible measure (or at least any sensible measure that allows for the possibility of minority religious groups) the WBC are a very tiny minority.

    Which part of the above do you object to?

  71. Jim
    Jim March 4, 2011 at 5:05 pm |

    William: Take your lazy arguments, name calling, and starry eyed privilege elsewhere

    Oh please. Take you strawmanning, and your drama, and tickle yourself with it. I never said the government is some kind of gentle protector. No oneis denying the hideous evils that governments have committed, certainly not me, so take that bit of lawyerly lying somewhere else.

    But I have to rely on the government to defend me against homophobes, what little protection it does provide, because I can’t do it for myself – there aren’t enough of me and I can’t afford the weapons it would take. And your little tirade just stinkl of your straight privilege – this is something you never have to think about.

    There ‘s a reason why people tolerate despotisms – they do it when the alternative is chaos. Don’t take my word for it, ask them yourself. There are millions and millions and millions of them in the world. Thank God some of them are finally geting fed up with the bargain, but for millenia it’s the best bargain they could get. This is another place where your US-centric rant reeks of privilege. You really seem to think there’s nothing worse than a court system “keeping certain kinds of people in their place through violence.”

    William: Jim Crow

    You really are historically illiterate, aren’t you? Jim Crow is a prime example of the government’s failure to protect, where it was derelict in its duty, in this case the federal government’s duty to beat Southern states down when they trampled on citizen’s rights. The federal government failed when it allowed Southerners to push the Posse Comitatus Act through, restricting federal troops for interfering while the KKK destroyed black citizens ‘ voting rights.

    The root of the federal government’s failure was its failure to utterly exterminate the Southern ruling class and annihilate its abominable slave-owning culture. Yeah, the government can be oppressive – sometimes not oppressive enough.

  72. RD
    RD March 4, 2011 at 5:50 pm |

    William – multiple williams! That makes so much more sense. O/T- what is your deal with Larry Flynt? I’ve seen you mention him before and it puzzles me. I mean, I’m sure he’s not the greatest person in the world, but…idk.

    Jim – you need govt to protect you from homophobes? That’s pretty ahistorical! Not to mention…apresent? That’s prolly not a word. Ignorant of the present? You know the cops used to raid gay bars and beat and rape in the process don’t you? Stonewall? You must know of Stonewall. They were battling…the cops. Who were raiding the Stonewall Inn. The Stonewall Inn still exists by the way, and just blocks away there’s a current battle over the piers, especially Christopher St pier. That space really belongs to LGBT youth of color, mostly from the outer boroughs. This upsets the wealthy white Chelsea gays, who use the police/threat of institutional violence as a weapon on these kids. Why don’t you go ask them how they feel about the cops “protecting” them. You’ll also hear stories about laws criminalizing poverty – a kid might get a ticket for, say, peeing in public after the restrooms close, or brown-bagging, or something else, be too poor to pay it, and go to jail over it while a wealthy white Chelsea man would just pay a minor-annoyance ticket. Low income LGBT folks and/or LGBT folks of color don’t trust the police, with good reason. Many live in stop-and-frisk neighborhoods, under basically constant police surveillance. LGBT sex workers (particularly women and street workers) are assaulted by police (physically and sexually) all the fucking time. I think you have blinders on about the LGBT community. Maybe your social circle just consists of the “The Kids Are Alright” crowd, but THAT IS NOT THE ENTIRE LGBT COMMUNITY.

  73. RD
    RD March 4, 2011 at 5:56 pm |

    Oh another (connected) example – the NJ 4. You’ve heard of them right? The four lesbians of color who WENT TO PRISON for DEFENDING THEMSELVES AGAINST A HOMOPHOBE. Yeah, the cops were really their friends there!

  74. LeftSidePositive
    LeftSidePositive March 4, 2011 at 7:03 pm |

    William:
    Spare me. The state doesn’t protect people.

    Oh, goodness. Remind me again what the police are for? The fire dept.? EMS? The FDA? The Coast Guard?

    When it comes to oppression the state has the greatest power, and has generally shown the greatest willingness, to oppress.

    The state does not, and has not historically, limited its actions to its ethical obligations to its people. That needs to be FIXED, not used as a rationalization for the state to ignore its ethical obligations to others.

    That’s like saying, “Doctors used to–and even still do!–prescribe harmful chemicals! Therefore no one should ever, ever expect a doctor to be the one to treat or cure them! (Instead, wouldn’t you say, medicine still needs to improve, but everyone needs access to the best care?)

    The “protection” you’re talking about requires giving the state the power to regulate speech through the use of violent force…

    Wow, persecution complex much? It’s not violent force to say, please move to a different street corner, or pay a fine/spend a night in jail if you persist in your harassment.

    the state the wields that power […] but shows a great willingness to harass and intimidate marginalized groups in the name of national security.

    No one is arguing for the state to harass and intimidate people, regardless of status. It’s just reaffirming the right of individuals to seek police protection from those who are directly making their lives miserable.

    There is no right to not be offended.

    Strawman argument! You know perfectly well I’m defending the right of this group to make their offensive speech, just not to force vulnerable people to listen.

    In order to enforce such a right one would have to give the government the power to restrict the rights of other people in your name.

    Ever heard of traffic regulations? Truth in advertising laws? Noise ordinances? Anti-littering laws? Seatbelt laws? Even the most archetypal laws like those against theft, murder, assault, etc. limit the “freedom” of the individual who might do those things. Harassment hurts others, and is therefore not a “right,” it is a harmful act.

    But hey, a government that has caused, systematized, and defended oppression for most of it’s history might change its stripes tomorrow and suddenly side with oppressed persons.

    Our government is founded on the principle of defending liberty, and was one of the greatest innovators of the entire concept. Yeah, we’ve fucked up lots and lots of times, but we’ve gotten better, and we have to continue to hold our leaders accountable to our country’s mission, but it’s one hell of a lot better than anarchy, or indeed any other political system ever devised (and to be honest, other countries have since adopted our political system and done a better job than us–I’m looking at you, Holland!).

    You’re not talking about a right there, you’re talking about legislation.

    Legislation that happens to have “rights” in the title… I’ll grant you, that there should probably be clearer legislation implemented to codify exactly when one person’s rights infringe on another’s.

    No one is going to be exposed to the violent force of police for discrimination in a private business.

    Huh? Blacks trying to stage sit-ins at lunch counters WERE violently beaten, not by police, but by civilian thugs. Activists had houses destroyed. Doctors providing abortions have been killed. And you’re saying no one’s exposed to the violent force of discrimination? Or is it only police violence that matters to you, because that’s the only kind you’re likely to face, as a privileged person?

    But not beaten, handcuffed, kidnapped, stripped of their rights, and sent off to be raped in a cell.

    Histrionic much? Really, all I’m advocating is that protesters be told to move to a neutral location rather than harassing those who are particularly vulnerable.

    I agree, but we’re not a healthy society

    Oh, well, I guess we’d better just give up, then…

    Of course, that would mean abandoning your civil support system, too!

    WBC was protesting, holding up hurtful signs, and being obnoxious.

    That still counts as harassment.

    Speech and action are not equal.

    I’m all for protecting the SPEECH, but not the ACTION of placing oneself in the specific vicinity of a party with particular needs for freedom and privacy.

    Are you honestly telling me you do not see the difference between WBC holding a few signs that say “God Hates Fags” while doing nothing else and a calculated campaign of murder and property destruction leading to a chilling effect for landlords?

    Harassment exists on a continuum. For the longest time (and still in most places), abortion protesters DON’T actually murder and destroy property…but the threat is definitely there and you can never tell which verbal harasser is going to turn violent–that’s why it’s so chilling. Also, since our society has tolerated (even supported) the verbal harassment of abortion providers, it has emboldened the harassers to escalate.

    How? Show me what material damage or reasonable threat a group of nasty little people with no history of violence (who are generally severely outnumbered) poses. Yes, they have targeted others to be hurt by their speech, but hurt feelings are not a justification for giving the government the right to restrict speech for everyone.

    It means people cannot freely grieve for their loved ones. It can induce massive anxiety for already emotionally fragile people to have to contend with them. It means people might be too afraid to hold the funeral of their choice. It makes law-abiding people feel like fugitives.

    For the umpteenth time, no one is talking about restricting the SPEECH–I’m just saying you can’t force someone to listen to you.

    Put another way, Dan Savage famously targeted Rick Santorum with speech.

    Dan Savage has never shown up at Rick Santorum’s wedding to protest him, he has not tried to intimidate him from seeking medical care, he has not tried to upstage a family funeral. He has mocked him from a genteel distance. He has NEVER, nor has he encouraged his followers, to meaningfully restrict Rick Santorum’s ability to move without fear for his personal safety or make significant and personal life decisions.

    Theres a very good chance that it is causing real, material harm to Santorum’s presidential chances.

    Running for president is a public act that one undertakes as a voluntary actor in the public sphere to obtain a public role in public policy. That is in no way relevant to the very personal acts of getting married, seeing your doctor, grieving a loved one, etc.

    Dan Savage even said numerous times in public that the goal of his speech was to hurt and offend Rick Santorum.

    I have NEVER said you are free from being offended. I simply stated that people have a right to privacy and peacefulness at specific times in their lives when they are most vulnerable, and for which it would be a meaningful assault on their human rights and full citizenship were they bullied.

    But without a useful material way of defining harassment all you end up doing is giving an oppressive government more power to oppress.

    I did–harassment includes protests that will likely intimidate or encumber individuals seeking medical care or commemorating major life events: baptisms, comings-of-age, weddings, & funerals. Engaging in routine economic activity or periodic religious services does not qualify for special protection.

  75. RD
    RD March 4, 2011 at 8:26 pm |

    LSP, dude, I think you should go learn what you’re talking about before you start spewing ridiculous shit. Hint #1: police violence doesn’t happen to people with significant privilege, except occasionally at protests. Nothing compared to what others go through. The kinds of violence that affect people with all levels of privilege (minus being a victim of violence and possible resulting mental illness) are things like child abuse, domestic violence, and rape/sexual assault. These things still affect the marginalized more than the privileged but unlike police violence, they actually DO happen to very privileged people too. Hint #2: the US was not founded on “liberty.” It was founded on genocide.

  76. RD
    RD March 4, 2011 at 8:27 pm |

    Hint #3: “law-abiding” is a synonym for PRIVILEGED.

  77. Kristen J.'s Husband
    Kristen J.'s Husband March 4, 2011 at 9:10 pm |

    Jim,

    To be sure law is an ugly process. I just don’t understand all the 1st Amendment love and the response to criticism in progressive circles. Like most institutions it is deeply flawed and I believe those flaws should be addressed rather than swept under the rug in what feels to me like nationalistic pride.

  78. Aaron
    Aaron March 4, 2011 at 9:25 pm |

    libdevil: Did somebody really call a bunch of famous rich white conservative Christians a reviled minority in this thread?  

    I did and I stand by it.

    The WBC are reviled (by the Left for their homophobia, by the right for protesting funerals, by homophobes for making them look bigoted).

    The WBC is a religious minority. They hold, or at least profess to hold, a religious belief (America is cursed by God for being too tolerant of sin, especially homosexuality) that is held by a very small percentage of the population (and which is reviled by most of the population.

    I’m not sure what is controversial about any of that.

  79. nathan
    nathan March 4, 2011 at 9:46 pm |

    Hmm – messy thread.

    Leftside and Jim – you both may want to take a closer look at what the state, and especially various branches of law enforce, have and continue to do when it comes to members of oppressed groups. The U.S. may not be as brutal as Pakistan or China, to give two examples, but we sure as hell are NOT a pinnacle of liberty and justice.

    As far as the court decision goes, I honestly don’t know how to take it. The Westboro folks are about as toxic as it gets. It would be ridiculous to suggest that their protests and public demonstrations are nothing but irritating sideshows. What they do adds to a culture of hatred towards gays and religious minorities at the very least, and while they don’t advocate violence, they probably do influence others who get involved in violent acts.

    It should be noted that Fred Phelps was both an attorney and a repeat Democratic candidate for offices in Kansas. Dude knows how to work the system. His family knows how to work the system. And they have the money to do so.

    Anyone arguing that the U.S. court system protects us is missing the obvious classism inherent in it. If you’re a political protester, recent immigrant, the LGBT youth of color mentioned by RD, working class anyone – good luck getting your speech protected by the U.S. Supreme Court, or any higher level court for that matter.

    Then there’s the issue of “free speech” at funerals. Honestly, I don’t think funerals should be subject to free speech arguments. However, how far away from a given funeral constitutes a fair level of privacy? 1000 yards might be enough.

    Anti-abortion protesters are a hell of a lot closer in most cases, and can and do get in the face of people seeking family planning services. I’ve witnessed some ugly shit in front of our local Planned Parenthood, to the point where I’ve feared for the safety and well being of those going in the building.

    I laugh cynically thinking how far away the protests I was involved in during the 2008 Republican National Convention were kept from the conventioners, and how while no one gets arrested amongst those frequent anti-abortion protests, and people like Westboro Church are supported by the Supreme Court, and yet over 800 peaceful protesters were arrested in 5 days during the RNC for basically being in the wrong place at the wrong time.

    It’s hard for me to give a high five to the Supreme Court, even though this particular decision might be the right one.

  80. David
    David March 4, 2011 at 9:57 pm |

    Aaron: I also want jerks at the WBC to be free to say nasty hateful things because I hold unpopular beliefs and I someday may want to express views which the government might want to punish me for expressing.  

    This is exactly why I love the ACLU. They get so little love from people because they’re willing to do what’s right – political expediency be damned.

    If I burn an American flag, or decide to salute it, they’ll support that act of speech regardless of the intent behind it.

    Re: Kristen J.’s Husband’s comment:
    I disagree. I think America has fucked up many things beyond counting. The first amendment is about the only thing that was done right. Unpopular thought shouldn’t be prohibited because of the outrage or hurt that it would generate. The WBC is a clear case of hateful, outrageous speech done in the public square, but not harassment.

    If you think that erosions of the first amendment are to society’s benefit, then you are wrong. The U.S. would do well to adopt progressive reforms to benefit society – with regard to labor, childcare, health, education etc. But we would not be benefitted by adopting some of the more regressive anti-speech policies that other countries have mistakenly adopted.

    Just my thoughts. I’m sure other people disagree with me.

  81. LeftSidePositive
    LeftSidePositive March 4, 2011 at 10:05 pm |

    Why do we have this increasing (and very irritating) conflation of

    1) the instruments of government have not historically been fair to X marginalized group

    and

    2a) X marginalized group could never want protection offered by instruments of government

    2b) government could never be the appropriate entity to protect a marginalized group’s interests

    Can we all agree these are not the same thing?

  82. LeftSidePositive
    LeftSidePositive March 4, 2011 at 10:16 pm |

    Nathan,

    I suppose 1000 yards away is probably enough, but I don’t know exactly where the grassy knoll was ;-) I’d probably make the distinction based on visibility and audibility, but I recognize that’s a hard standard to enforce.

    I’m more making a general point about free speech vs. systemic intimidation, and looking at more how it applies to abortion clinics, gay weddings, past episodes of WBC craziness, rather than the particulars of this one case.

    The issue I have with the RNC protest crackdown is more that a political rally should NEVER be a “protected life event”–if you’re voluntarily asserting yourself in the public square (for the purpose of public policy!), you really can’t play the leave-me-alone card, the way you can if you want to, say, visit a hospice. There’s a security issue, fine, but that’s only good for a couple hundred feet, tops (and of course there’s the age-old question of when “security” is used to stifle dissent) and you really can’t arrest peaceful protesters in the name of “security,” because they’re, well, peaceful. (& let’s also bitch about what constitutes “peaceful”–hippy wearing a “make love not war” T-shirt? totally an imminent menace & threat to public safety. right-winger carrying a loaded gun? patriotic American. blegh.)

  83. Aaron
    Aaron March 4, 2011 at 11:21 pm |

    LeftSidePositive,

    I think the conflation is occurring because your 1 tends to prove your 2b. The fact that, historically governments are tools of oppression and not liberation, strongly suggests that governments are not tools of liberation. (And if governments can’t be tools of liberation it hardly matters whether or not some group of people wants a government to be a tool of liberation – it can’t be).

    Though, I notice that, in trying to paraphrase your points, I’ve actually rephrased them. In part I think this is because my rephrase comes closer to capturing my position than what you laid out does. I have no doubt that government could serve the interest of some minority group X, my doubt is that it could do so without oppressing some other group.

    My position is that government operates by violence and threat of violence. Obey or people with night-sticks, mace, tazers, guns, etc. will come to your house and make you obey – or lock you in a cage. At the same time I think that the government is a tool (it is a-moral and does what those who wield it will it to do). So, I believe that the more the government is allowed to do, the more violence and threats of violence will be used to achieve the goals of those who control government.

    This means I oppose government restrictions on speech for moral reasons, as I never think it is morally acceptable to use violence or threats of violence to stop pure speech. This also means I oppose government restrictions on speech for pragmatic reasons, as I doubt that the interests of those who control government will ever fully line up with my interests and I don’t want people whose interests don’t line up with mine having the power to stop speech they don’t like.

  84. LeftSidePositive
    LeftSidePositive March 4, 2011 at 11:49 pm |

    Aaron–so, if government isn’t defending the interests of a given oppressed group, who will?

    And, really, can we please stop being so melodramatic about the means of government? Do we really have to get into these graphic persecution fantasies (which, if our government did its job properly, would be more than adequately outlawed by the 4th, 8th, and 14th Amendments!)?

    Alternatively, please give me some clear examples of tazers and cages being used to enforce the Americans With Disabilities Act, or of night sticks and mace being the enforcement mechanism for the Lilly Ledbetter Fair Pay Act…

    Also, your “1 proves 2″ is totally, ridiculously wrong. Because the government historically discriminated against blacks, does that make the Civil Rights Act invalid or undesirable? Because government historically discriminated against women, does that make the Violence Against Women Act invalid or undesirable? Because government historically discriminated against unions, does that make the rights of public-sector workers to bargain collectively invalid or undesirable? So Scott Walker is totally defending discriminated-against unions from the oppression of government by benevolently removing those unwelcome government protections from them? (Does that sound like bullshit? Because it is!)

    By the way, EVERY FREEDOM YOU HAVE comes from the fact that our government supports it, employs police officers to defend you, hears court cases for your grievances, funds elections for you to vote, etc., etc. If you were living in Somalia, I can be pretty damn sure you wouldn’t feel as “free” as you do here. Yeah, we don’t do ENOUGH to defend our populace’s freedom, but it’s kinda ridiculous to declare your government, which is at least nominally obligated to defend your rights, as an institution that is inherently oppressive.

    And, um, YET AGAIN, not restrictions on speech. Restrictions on harassing others and violating their need for privacy. The speech is welcome anywhere else, but not in those few specific situations where it’s coercive to identifiable victims. Telling someone “please don’t encroach on this medical clinic” is no more inherently violent than telling someone they can’t trespass on someone’s house, or can’t cut them off in traffic.

  85. Aaron
    Aaron March 5, 2011 at 9:00 am |

    I’m going to split my reply for length:

    LeftSidePositive: Aaron–so, if government isn’t defending the interests of a given oppressed group, who will?

    The members of the oppressed group and decent people everywhere. For example, the civil rights movement was doing a very good job of desegregating private businesses before the Civil Rights Act was passed. Once the government started to get out of the business of actively promoting segregation, people were able to actively work together to start to put an end to private segregation and they were doing a damn good job of it.

    LeftSidePositive: And, really, can we please stop being so melodramatic about the means of government? Do we really have to get into these graphic persecution fantasies (which, if our government did its job properly, would be more than adequately outlawed by the 4th, 8th, and 14th Amendments!)?

    I think it is important to describe government action in this manner because it makes clear what is going on. I don’t think it is melodramatic, but rather descriptive. Say, hypothetically, I decide not to pay my taxes (most of them go to fund a military that I find, at best, to be deeply unethical) what happens? The government comes to me and tells me I owe them more money and if I refuse to pay it they take me to court. If I refuse to go to court or I go and lose (which I will) the court will order that the government take my money and probably that I be locked in a cage for some period of time (they’ll call it being sent to a correctional facility, but calling it a nicer name makes it no less a cage). And I will have my money taken and I will be locked in a cage (by people with night-sticks, tazers, mace, guns, etc.) and if I resist being locked in a cage they will use those tools of violence. And once I am in their cage they will be more or less free to use those same tools of violence against me as they see fit (so long as they say it severs a penological function).

    None of this is prevented by the 4th, 8th, or 14th Amendment. All of it is perfectly Constitutional. Most people comply well before the threat of violence is made explicit, but the threat of violence and the willingness to use violence to gain compliance is always there.

    LeftSidePositive: Also, your “1 proves 2″ is totally, ridiculously wrong.

    I said “1 tends to prove 2b”, meaning provides some evidence for. Meaning that the historical mistreatment of minority groups by the government gives me some reason to think that the government is not the appropriate way to protect the interests of minority groups. I think that most government actions which purport to protect the interests of minority groups are, in fact, efforts to drain momentum from real social change and protect the interests of the elite. They codify changes which have already occurred, drain momentum and public support for further changes, and divide movements. Basically, I’m inclined to view history through the same lens as Howard Zinn.

    So I do think that we should be suspicious of government efforts to “help” oppressed people, because it is not something we have a historical record of government doing.

    LeftSidePositive: Because government historically discriminated against unions, does that make the rights of public-sector workers to bargain collectively invalid or undesirable? So Scott Walker is totally defending discriminated-against unions from the oppression of government by benevolently removing those unwelcome government protections from them? (Does that sound like bullshit? Because it is!)

    This is actually an excellent example of what I am talking about. Unions have a right to bargain collectively without any special government recognition of this fact. (It’s codified (in theory) in the rights of assembly and right of contract protected by the Constitution, but even if it weren’t people would have this right). But because the government decided to “give” the unions this right, or to finally acknowledge this right, now it is something the government can take away. Now that the government has spent 30 years (thanks, St. Reagan) breaking the backs of the unions and slowly weakening them, now the government can “take away” the right it “gave” the unions.

    And that is true before you look at what accepting the generous grant of this right cost the union movement.

  86. Aaron
    Aaron March 5, 2011 at 9:01 am |

    LeftSidePositive: By the way, EVERY FREEDOM YOU HAVE comes from the fact that our government supports it, employs police officers to defend you, hears court cases for your grievances, funds elections for you to vote, etc., etc. If you were living in Somalia, I can be pretty damn sure you wouldn’t feel as “free” as you do here. Yeah, we don’t do ENOUGH to defend our populace’s freedom, but it’s kinda ridiculous to declare your government, which is at least nominally obligated to defend your rights, as an institution that is inherently oppressive.

    I disagree. I believe I have freedom before the government.

    The fact that the government employs police who often violate the rights of the people they are supposed to protect, who often beat and jail people for “crimes” that ought not be crimes, and who occasionally lock up real threats to the safety of the community does not change my mind. If I could get the arresting of dangerous people without the arresting of pot smokers, the illegal searches and seizures, the killing of dogs, the harassment of minorities, etc. maybe I would be convinced but I’m not holding my breath.

    The fact that when the police violate my rights (or some other part of government) I can go to the courts to seek redress and that sometime redress is available to me, but not often because police (and most of the rest of the government) have partial immunity from suit so they have to violate my rights very badly (not just violate them) before I can win, does little to convince me.

    The fact that I am occasionally allowed to vote on which group of people will rule over me (and sometimes my vote even counts) would be more persuasive if we were not living in a country with more disenfranchised African Americans than before the Voting Rights Act was passed (see The New Jim Crow), if one of the two political parties which stands a chance of controlling the federal government represented my interests, and if politicians weren’t wholly owned subsidiaries of the corporate interests who fund their campaigns.

    The fact that life sucks in Somalia, especially after the American government backed the violent overthrow of the last thing they had resembling a government, would be more convincing if I were advocating a purely anarchist position, I’m not. I’m saying that we have to recognize that governments operate by violence and threats of violence. I’m saying that in some rare instances that is necessary and good. I’m saying that those instances are few and far between. I’m also saying that we have to recognize that governments are run by the people who control them and tend to be used to the advantage of those who control them and not the greater good. Sometimes governments can be forced to acknowledge some rights of some minorities, but I believe that it is a mistake to confuse government recognition of hard won rights with government help. I also believe it is a mistake to trust the government because the moment you turn your back on it someone will use it to start whittling away at those hard won rights.

    LeftSidePositive: And, um, YET AGAIN, not restrictions on speech. Restrictions on harassing others and violating their need for privacy.

    I agree with this.

    LeftSidePositive: The speech is welcome anywhere else, but not in those few specific situations where it’s coercive to identifiable victims.

    This is what I disagree with – so long as it remains speech (and not speech and illegal action – like blocking clinic doors, brandishing weapons, trespassing, etc.) I think that government must not interfere.

    LeftSidePositive: Telling someone “please don’t encroach on this medical clinic” is no more inherently violent than telling someone they can’t trespass on someone’s house, or can’t cut them off in traffic. LeftSidePositive

    Again I agree with this (I think they are all inherently violent, but all justifiably so). In each instance you are regulating action, not speech, and while I want to be careful about what actions the government regulates (because I don’t trust government) I don’t see anything inherently wrong with or dangerous about letting government regulate actions. And in each of the cases you provide I think there is good reason for government preventing the actions you describe.

    But blocking an abortion clinic door is not speech. It is action. Blocking a clinic door and shouting “baby killers” is speech and action and there the crime is the act not the speech. It should be just as much a crime to block a clinic door and shout “I love a woman’s right to choose”. The crime is not the speech, it is the act.

  87. LeftSidePositive
    LeftSidePositive March 5, 2011 at 10:51 am |

    Aaron:
    The members of the oppressed group and decent people everywhere.

    What about movements that aren’t that popular yet? Do the members of the oppressed group have to spend every waking moment of their lives defending themselves instead of actually LIVING like free citizens?

    For example, the civil rights movement was doing a very good job of desegregating private businesses before the Civil Rights Act was passed. Once the government started to get out of the business of actively promoting segregation, people were able to actively work together to start to put an end to private segregation and they were doing a damn good job of it.

    Just a few murders & beatings & cross-burnings here and there…no biggie, I suppose! This is totally delusional. Do you honestly think that civil rights just happened magically without HUGE resistance from society in general? Remember all those white kids screaming & spitting on the black kids going to school?

    Say, hypothetically, I decide not to pay my taxes (most of them go to fund a military that I find, at best, to be deeply unethical) what happens?

    Because society can’t function–indeed no society has EVER functioned–without some degree of enforcement mechanism. And you need to pay your taxes. Deal with it. Just like people need not to harass each other. And, in your example, you’re spinning a tale of what happens if you willfully ignore EVERY other request of your society to contribute like it needs you to, and then calling it violence. Again, persecution complex.

    Most people comply well before the threat of violence is made explicit, but the threat of violence and the willingness to use violence to gain compliance is always there.

    This applies equally well to harassing protesters and why they need to be curtailed due to their real infringements on others’ freedoms.

    I think that most government actions which purport to protect the interests of minority groups are, in fact, efforts to drain momentum from real social change and protect the interests of the elite.

    Has any ACTUAL minority ever, EVER agreed with you on this?! Or are you just massively privileged to never need social legislation, and then stay all theoretical about how in a perfect world we’d all be totally nice to each other and therefore can imagine all social change without government?

    And, while underprivileged groups may bemoan the lack of momentum after major policy change, that’s not to say they wish that policy change hadn’t happened–they generally wish necessary policy changes would KEEP happening, not to have to wait a bunch of years for the next ones.

    They codify changes which have already occurred, drain momentum and public support for further changes, and divide movements.

    Yeah, ’cause gay people can totally get married now and receive survivor benefits, tax breaks and everything else that goes along with marriage. Right.

    And women, everywhere, can totally afford their reproductive care and have no need of governmental support for it. And the people who care enough to donate to things like The National Network of Abortion Funds TOTALLY have enough money and clout to effectively take the place of government funding. Right.

    Unions have a right to bargain collectively without any special government recognition of this fact.

    The ETHICAL IMPERATIVE for this right exists without government (just like it does for all rights!), but without the government actively protecting it, it does not, on a functional level, exist. If the government is not going to step in and take legal action (and, more significantly, BE the apparatus through which any legal action is taken!) when an employer fires those who want to unionize, in real life you don’t have the ability to unionize.

    And, if you think that “the free market” will naturally punish those companies who act badly, that consumers are going to be so informed and conscientious that they’ll take up every cause and organize enough to mount economic pressure, and that there will be viable alternatives of other companies to support, you need to look around you.

    But because the government decided to “give” the unions this right, or to finally acknowledge this right, now it is something the government can take away.

    Because the 1890s were such a glorious time of humane working conditions and economic advancement for the lower-middle-class?

    All your grandiose talk about government “taking away” the right to unionize is actually GOING BACK TO HOW IT WAS BEFORE. Which sucked. When people DID NOT have protections on their labor, and needed them desperately. There was no time where everyone was happily unionized and then–oops!–the government mucked up this tranquil, idyllic, free-market paradise.

    Rather, the government FAILED to uphold its obligation to protect people’s rights of freedom of assembly, and then the usual cutthroatedness of human nature and economics took its course.

  88. LeftSidePositive
    LeftSidePositive March 5, 2011 at 11:11 am |

    Aaron:
    I believe I have freedom before the government.

    Yeah, enjoy your freedoms in China, Somalia, or Venzuela. News flash: if a society’s power structure does not ACTIVELY protect your rights, you don’t actually get to enjoy them in real life.

    Your right to your property is worthless unless a government will help you and arrest/prosecute those who try to take your property.

    This is, in fact THE REASON governments exist–so that people can live in ordered society where their rights are protected. Remember this?

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

    I’ll grant you, some governments don’t do ENOUGH to support their people’s rights, but that’s not the same as saying, “O, we’d magically have rights if no one defended us!”

    The fact that the government employs police who often violate the rights of the people they are supposed to protect, who often beat and jail people for “crimes” that ought not be crimes

    Isn’t that a call to reform the actions of the police–i.e., to pass laws protecting those who are not currently sufficiently protected–rather than a call for anarchy?

    Do you honestly think your life would be better if there just were no police, or no court system?

    Where, then, would you turn if your rights were violated? Do you just not care if a non-governmental group kidnaps you and beats you? Better that than having a police force?

    I kinda feel like passing laws decriminalizing marijuana, and indeed establishing its place within the right to privacy, and investing resources in prosecuting those who commit or enable police brutality (all of these reforms, of course, depend on government action, notice!), would do a hell of a lot more than a) abolishing the police (which is the only logical extension of your argument, or b) denying that marginalized groups have a right and currently-unmet need to turn to the police when threatened or harassed.

    This is what I disagree with – so long as it remains speech (and not speech and illegal action – like blocking clinic doors, brandishing weapons, trespassing, etc.) I think that government must not interfere.

    Tell me, honestly, how much harassment by groups organizing against you have you actually lived through?

    Because, I can assure you that even leaving the entrance of an abortion clinic open and having people chant, scream, etc. at you from several feet away is *terrifying* for a very, very large number of people. The action of standing nearby and intimidating a vulnerable person–even when the perpetrator is not engaged in the overt act of impeding them physically–is very serious and a real challenge to free people exercising their rights, and they do need the police to step in and make a safe space for them.

  89. Kristen J.
    Kristen J. March 5, 2011 at 12:19 pm |

    @Aaron,

    I think the idea that people are “free” without government is a fantasy pushed by libertarians and anarchists. Without social controls and collectived enforcement people do really awful shit to each other. I’m not saying humanity is Hobbesian, but we sure as fuck aren’t Randian either. Look at any place where governments fail to protect a less powerful minority and you’ll find severe and systemic abuse. And honestly those good and decent people you think pushed through the civil rights act and will defend the disenfranchized now? They’re evicting people for being trans, sterilizing people with disabilities, and joking about prison rape. Power is shared when it is to the benefit of the powerful and not one moment before.

    The answer to oppression is collective action to distribute power equally with equal value placed on every human life rather than the removal of collective action which would value human life at the level it is defended.

    The FA as interpreted by SCOTUS and understood by lower courts does not support the concept that we should treat each other as having equivalent value. Instead it allows people with power to use speech to as part of a system of oppression to maintain existing power structures, i.e., klan marches, anti-gay t-shirts, street harassment, etc. In that sense, as M already described, the FA is fundamentally flawed.

  90. LeftSidePositive
    LeftSidePositive March 5, 2011 at 12:34 pm |

    Kristen J.,

    Totally agree about the libertarian fantasy. When/if my point-by-point rebuttal ever gets out of moderation, it will have plenty of detail re: Aaron’s amusing assumptions.

    I’m going to have to take issue with the FA being fundamentally flawed, though. I think it’s great, but there is some role for grassroots social protection vs. governmental protection–so, while the speech of advertisers selling women an impossible image of beauty is pretty damn oppressive, I wouldn’t go about forbidding it. That’s the kind of thing that’s best addressed through loud criticism, boycotts, alternative markets, etc. About as far as I’d go governmentally would be to have photoshop-disclaimers for truth-in-advertising purposes, and to mandate media-literacy classes in schools.

    As for hateful marches and T-shirts, well, I’m actually going to say, yeah, that’s the price of living in a free society–up until the point that it targets someone and meaningfully restricts their freedom. Since street harassment is directed at a person it is, as its name implies, harassment, and therefore is not considered, in my view, speech that’s cast “to the wind” as it were, in the case of marches (however ugly) or T-shirts.

  91. Danny Haszard
    Danny Haszard March 5, 2011 at 1:13 pm |

    Harassment by religious extremist

    Jehovah’s Witnesses instigated court decisions in 1942 which involved cursing a police officer calling him a fascist and to get in your face at the door steps,….this same JW 1942 court decision upheld infamous Phelps hate church in 2011
    —-
    Danny Haszard

  92. William
    William March 5, 2011 at 3:22 pm |

    RD: O/T- what is your deal with Larry Flynt? I’ve seen you mention him before and it puzzles me. I mean, I’m sure he’s not the greatest person in the world, but…idk.

    For years Flynt and the Chicago Nazis were my “look, these people are absolute tools but they represent the outer limits of everyone else’s liberties” examples. Now though I think WBC is making a pretty strong play for taking that status.

    Oh, goodness. Remind me again what the police are for? The fire dept.? EMS? The FDA? The Coast Guard?

    As near as I can tell from my experiences the primary functions of police are to make white people happy by harassing brown people and collect revenue by issuing tickets for minor traffic violations. God knows they’ve been useless any time I’ve actually needed them for protection.

    As for fire departments and EMS, well, fire response times are pretty highly dependent on how much the government cares about you. If you’ve got a nice McMansion in the land of Starbucks and high property taxes you’ll probably get a good response. If you’re in a no-mans-land though. Also, I’m not sure where you live but where I live EMS sends you a crippling bill.

    As for the Coast Guard well…maybe you don’t know this but there hasn’t been a real threat to our coasts in living memory. Unless you count drugs and brown people looking for work, which the Coast Guard certainly does. But hey, what do I know, maybe Russia is hovering around in international waters making faces at Sarah Palin’s house and waiting to invade the moment our fine young men and women serving in the Coast Guard let down their eternal vigilance.

    <blockquote.That’s like saying, “Doctors used to–and even still do!–prescribe harmful chemicals! Therefore no one should ever, ever expect a doctor to be the one to treat or cure them! (Instead, wouldn’t you say, medicine still needs to improve, but everyone needs access to the best care?)

    Its more like saying “the last five times we let little Timmy have the cookie jar unsupervised he gorged himself until he vomited on grandma’s rug, maybe he shouldn’t have free reign over the cookie jar anymore.”

    Wow, persecution complex much? It’s not violent force to say, please move to a different street corner, or pay a fine/spend a night in jail if you persist in your harassment.

    Yeah, absolutely nothing violent at all about unaccountable armed men demanding you move from one place to another under threat of kidnap and confinement somewhere where they joke about your looking the other way if you get raped. Especially when those unaccountable armed men have a very long history of violence and a variety of tools at their disposal for “pain compliance.”

    Strawman argument! You know perfectly well I’m defending the right of this group to make their offensive speech, just not to force vulnerable people to listen.

    Speech is communication. Communication requires, at the very least, the potential of a listener. What you’re suggesting is no different then when anti-war protesters were relegated to “free speech zones” or when some marginally-less-homophobic-than-Felps jackhole mutters “I don’t care what they do in their own home so long as I don’t have to see it” in response to a pride parade.

    Ever heard of traffic regulations? Truth in advertising laws? Noise ordinances? Anti-littering laws? Seatbelt laws? Even the most archetypal laws like those against theft, murder, assault, etc. limit the “freedom” of the individual who might do those things. Harassment hurts others, and is therefore not a “right,” it is a harmful act.

    But you’re expanding the definition of harm beyond what it has traditionally meant. More than that I’m not sure you’ve considered that even good laws are routinely abused. Traffic regulations exist because the consequences of reckless driving are potentially deadly to others. Yet everyone is familiar with speed traps and revenue generation by police. Truth in advertising laws are important not because lying is bad but because fraud is a form of theft. Yet thats the same argument the government has used to silence some (admittedly foolish and likely wrong, though not willfully untruthful) speech. Noise ordinances (with the possible exception of construction noise and zoning) are generally used to harass the “wrong kind of people” out of a given area and I find it telling that you don’t see anything problematic with them. Littering creates a public nuisance which then costs tax dollars to clean up on public land and requires owners to spend time cleaning up on private land, its really no different from laws against other forms of vandalism and there is a specific and material harm which can be pointed to. At the same time, most of my homeless clients have been harassed by police regularly for “littering” because something fell off of their cart or because their belongings couldn’t all be easily picked up and carried at once. As for seatbelt laws, with the exception of drivers, I’m not a big fan of the government keeping people safe by fining them for making choices which might be dangerous.

    What you’re talking about is taking offense and calling it harm in order to justify using potentially violent force. Half a dozen idiots standing outside of a cemetery with signs that say “God Hates Fags” and “Thank God For Dead Soldiers” is certainly offensive but you’ve yet to make an argument as to how it is harmful outside of hurting the feelings of funeral attendees. Its tragic, yes, but the consequences of doing something are likely to be far worse.

    Our government is founded on the principle of defending liberty, and was one of the greatest innovators of the entire concept.

    It also enshrine slavery and Jefferson, one of the prime heroes of liberty, raped his slaves. The founders also liked to protest with tarring and feathering. Also bullets. I think our system is the best we have, but I don’t pretend that its good and I cannot trust a government which seems to have advanced liberty largely in spite of itself.

    Huh? Blacks trying to stage sit-ins at lunch counters WERE violently beaten, not by police, but by civilian thugs. Activists had houses destroyed. Doctors providing abortions have been killed. And you’re saying no one’s exposed to the violent force of discrimination? Or is it only police violence that matters to you, because that’s the only kind you’re likely to face, as a privileged person?

    Thanks for willfully misunderstanding and making my point for me. No one is going to be exposed to the violent force of police for violating anti-discrimination laws. Discrimination uses violence, often that violence comes from the government. The white guy who wouldn’t serve didn’t get beaten, no one challenging school integration was knocked down with a fire hose and attacked by dogs. Thats something only victims get to experience.

    Histrionic much? Really, all I’m advocating is that protesters be told to move to a neutral location rather than harassing those who are particularly vulnerable.

    Way to be ableist there. Anyway…

    And when they say “no” what happens?

    I’m all for protecting the SPEECH, but not the ACTION of placing oneself in the specific vicinity of a party with particular needs for freedom and privacy.

    So, some parts of the first amendment are good while others are not? Or do you just think that so long as people are allowed to get together somewhere in public and say something thats enough to count?

    It means people cannot freely grieve for their loved ones. It can induce massive anxiety for already emotionally fragile people to have to contend with them. It means people might be too afraid to hold the funeral of their choice. It makes law-abiding people feel like fugitives.

    The WBC protesters were better than three football fields away. They weren’t standing next to the casket. This is about people being offended by the idea that they’d have the gall, not someone actually being harmed.

    Dan Savage has never shown up at Rick Santorum’s wedding to protest him, he has not tried to intimidate him from seeking medical care, he has not tried to upstage a family funeral. He has mocked him from a genteel distance. He has NEVER, nor has he encouraged his followers, to meaningfully restrict Rick Santorum’s ability to move without fear for his personal safety or make significant and personal life decisions.

    And WBC has never been violent. Hell, they’re a step away from con artists and their con demands that they always play the part of victim. They are always outnumbered. At military funerals they are often outnumbered by trained killers for christsakes. The police tend to show up, sometimes theres even SWAT teams, everyone hates them because they’re basically a disease. You can’t make an honest argument that they cause fear because they’d be pathetic if they weren’t so cartoonishly evil. Its like the half dozen or so protesters who show up to the pride parade in Chicago every year talking about sin while a bunch of cops protect them from the herd of leathermen grinding away just to see their reactions. They’re a joke, in poor taste to be sure, but hardly a threat to anyone.

    and for which it would be a meaningful assault on their human rights and full citizenship were they bullied.

    And I’m saying that in order to stop this farcical group of childish schmucks you’re going to empower the government to bully a lot of people who really do have something worth saying but aren’t socially powerful enough to say it. This isn’t about WBC and funerals, its about the oppressed persons who this precedent will be used to further oppress if they dare speak in public.

    I did–harassment includes protests that will likely intimidate or encumber individuals seeking medical care or commemorating major life events: baptisms, comings-of-age, weddings, & funerals. Engaging in routine economic activity or periodic religious services does not qualify for special protection.

    I’ll be blunt: the ability to protest without encumbrance is more important to liberty than the ability to mark milestones without encumbrance.

  93. LeftSidePositive
    LeftSidePositive March 5, 2011 at 4:57 pm |

    William–NOTHING you’ve complained about in terms of police, fire dept, etc. excesses wouldn’t be better solved by holding the police accountable for doing their jobs well, rather than withholding their protections from others.

    Also, no one is giving the government “free reign” as you imagine–just allowing its protection to be there for people who need it.

    No, “communication requires the potential for a listener” is NOT acceptable, because that denies the agency of that listener. And pride parades and political conventions are not places where people need privacy, and they do not target people in need. I’ve already addressed this in post #84.

    “expanding the definition of harm beyond what it has traditionally meant” IS necessary because we haven’t paid attention, traditionally, to those who are harmed seeking medical care, intimidated, harassed, etc.

    And your “No one is going to be exposed to the violent force of police for violating anti-discrimination laws” is just as applicable to criminal prosecution as anything else–if you discriminate against people in your business, the law WILL come in to shut it down, you WILL be fined, and of course if you resist enough you’ll set off a chain of events that can put you in jail, just like violating any other law.

    As for “I’ll be blunt: the ability to protest without encumbrance is more important to liberty than the ability to mark milestones without encumbrance,” I absolutely disagree–because the only encumbrance the protesters are exposed to is moving (and, as I said in post #84, maybe in this case they were moved enough), while the people who are targeted are robbed of a chance to express their humanity at a very vulnerable time–they are effectively, though fear and intimidation, shown that they cannot function equally in society.

  94. David
    David March 5, 2011 at 5:10 pm |

    Damn, next time I see some protestors that I don’t like, I’ll just hold a wedding or bar mitzvah near them and tell them to move.

    Works for me.

  95. LeftSidePositive
    LeftSidePositive March 5, 2011 at 5:32 pm |

    David, I think you’d have to make the credible case that the protest WAS THERE to protest that very wedding or bar mitzvah. If the protest was happening before the nuptials/coming of age, I don’t think it would apply.

    You should be free of personal harassment at times of major life significance, but you can’t expect to be free of totally unrelated people going about their lives and publicly demonstrating on matters that have no bearing on your protected life event–after all, it might have rained.

  96. William
    William March 5, 2011 at 5:35 pm |

    NOTHING you’ve complained about in terms of police, fire dept, etc. excesses wouldn’t be better solved by holding the police accountable for do ing their jobs well, rather than withholding their protections from others.

    Except police are not held accountable. Until that changes the actual effect of limiting the WBC’s actions would be giving the government and the police another tool to oppress people who are unpopular. Right now, in this very narrow case, its the Felps clan. Tomorrow it will be other groups that those in power do not like.

    If you want to change the system, great, but thats not what we’re talking about here and it isn’t on the table. The system needs to change first before we can talk about trusting government with more power to silence unpopular people or distance them so far from the objects of their protest as to make their speech irrelevant.

    No, “communication requires the potential for a listener” is NOT acceptable, because that denies the agency of that listener. And pride parades and political conventions are not places where people need privacy, and they do not target people in need. I’ve already addressed this in post #84.

    Power expands. In Chicago we have a lot of churches and a lot of cemeteries. I think it would be virtually impossible to chart a parade route in any of the historically gay districts in the city without coming close enough to a church or a funeral for someone to wrinkle their nose. Now in Chicago the LGBTQ community is pretty well connected, I’d wonder if the same was true in say, Indianapolis.

    Deeply held personal beliefs aside, theres really nothing special about weddings, funerals, baptisms, or coming of age parties. They’re events, important to the people involved, but not protected classes. In this case the protesters seemed to be a pretty significant distance away, something which you seem determined to ignore. By talking about these significant events as if they deserve special protection from explicitly political and religious speech even if that speech is already segregated at a great distance you’re coming dangerously close to making an argument that the deeply held personal beliefs of one person trump the deeply held personal beliefs of another because of the presence of a given ritual.

    More importantly, this isn’t a new precedent. SCOTUS allowed Nazis to march with swastikas through Skokie (a heavily Jewish suburb which has a lot of holocaust survivors, especially at the time). What happened? A lot of people were offended and the counterprotesters outnumbered the Nazis by an incredible margin. The Nazis looked foolish, faintly ridiculous, their power to intimidate evaporated by holding them up to public scrutiny and showing them for the anachronistic cowards and fools they were. WBC only gains power and influence by being restricted, they get to play the victim, they become a sinister threat rather than an object of near universal ridicule. The great thing about public speech, even when its offensive, is that people hear it and see it and can make a decision. By banning WBC’s protests you give them a mystique, you likely increase their platform, and you weaken the state of liberty in the process because the tools used to limit them will definitely be used to limit others. Worse, once the precedent has been established it becomes old news and few people will even notice.

    “expanding the definition of harm beyond what it has traditionally meant” IS necessary because we haven’t paid attention, traditionally, to those who are harmed seeking medical care, intimidated, harassed, etc.

    You keep mentioning seeking medical care. I’m getting the sense that you’d like to see WBC restricted as much because of how that power could be wielded against other vile groups as because Fred and his crew are horrifying. All I’ll say is this, if you think the power to restrict harassing protesters will help the pro-choice movement I’d suggest you consider how it will be used the next time we have a Republican in the white house and teabaggers running congress.

    if you discriminate against people in your business, the law WILL come in to shut it down, you WILL be fined, and of course if you resist enough you’ll set off a chain of events that can put you in jail, just like violating any other law.

    Provided your business is small enough that you can’t hire lawyers to evade prosecution or make a token effort to shut people up. If anti-discrimination laws worked the way you believe they do we’d have seen a lot more progress than we have. We can’t even put bankers in jail for ruining the economy through fraud, do you really think theres the political will to hold rich white men who make campaign contributions accountable?

  97. David
    David March 5, 2011 at 6:07 pm |

    Try putting that into legalese. I think your law would be open to quite a bit of interpretation.

  98. RD
    RD March 5, 2011 at 6:22 pm |

    William:
    And I’m saying that in order to stop this farcical group of childish schmucks you’re going to empower the government to bully a lot of people who really do have something worth saying but aren’t socially powerful enough to say it. This isn’t about WBC and funerals, its about the oppressed persons who this precedent will be used to further oppress if they dare speak in public.

    A good point and I have a good example. On December 17th, 2008 I went to a protest in D.C. for sex workers rights and against violence against sex workers. When we got to our destination there were TONS of cops there. There was a K-9 unit and people there from ICE. Plenty of uniforms and plainclothes cops. There’s a really really great video of the protest at http://www.redlightdistrictchicago.com/?p=51 (fyi though I am affiliated with swop the chapters are independent; I am not affiliated with swop chicago -who made that video and host it- and don’t approve of everything they do, though there are some really good people there). At the end, you can see Robyn Few getting hassled but it really doesn’t show the magnitude of the police presence there. Not to mention, oh, Critical Resistance, anti-police-brutality groups…you think they want them speaking publicly?

  99. Aaron
    Aaron March 5, 2011 at 7:01 pm |

    Kristen J,
    I think I was overly loose in my language there. I was responding to a claim about the origin of our freedoms and what I should have said is that people have rights before there is government. What I meant by “people are free before the government” is that the rights of people do not come from the government, our freedoms (freedom of speech, freedom of religion, etc.) may or may not be protected by the government but, contra LeftSidePositive, none of my freedoms come from the government.

    That doesn’t mean I think we’d be better off if there was no government. I am not advocating anarchy. But, just as people on their own can do awful shit to each other, people acting on the directions of the government can (and do) do awful shit to their fellow human beings. I don’t trust my fellow humans, but I don’t trust governments more.
    blockquote cite=”comment-353365″>

    Kristen J.: And honestly those good and decent people you think pushed through the civil rights act and will defend the disenfranchized now? They’re evicting people for being trans, sterilizing people with disabilities, and joking about prison rape.

    The good people are fighting this, they may not be winning, but they are fighting. But more importantly, look at your examples. To evict someone for being trans you must have government complicity. The forced sterilization of people with disabilities is (largely) a result of government action. And individuals may be joking about prison rape, but it is the government that locks people in cells and then refuses to act to stop prison rape because “it is too expensive”. In each of your examples, the government at the very least shares responsibility for the evils you point to.

    Kristen J.: Power is shared when it is to the benefit of the powerful and not one moment before.

    I agree with this 100%.

    Kristen J.: The answer to oppression is collective action to distribute power equally with equal value placed on every human life rather than the removal of collective action which would value human life at the level it is defended.

    Again I agree wholeheartedly. I just don’t think that government = collective action. I think that the more aspects of our lives government is able to reach the more it concentrates power in the hands of a few and the more it can and will prevent collective action to distribute power equally.

    blockquote cite=”comment-353365″>

    Kristen J.: The FA as interpreted by SCOTUS and understood by lower courts does not support the concept that we should treat each other as having equivalent value. Instead it allows people with power to use speech to as part of a system of oppression to maintain existing power structures, i.e., klan marches, anti-gay t-shirts, street harassment, etc. In that sense, as M already described, the FA is fundamentally flawed. Kristen J.

    That assumes that the purpose of the 1st Amendment is to support the concept that we should treat each other as having equivalent value. I’m not sure why you would think that is its purpose or why you think that should be its purpose.

    I think the purpose of the 1st Amendment, as it applies to speech, is to prevent the government from interfering with my right to free speech (and the right of my fellow humans to free speech). As understood by the SCOTUS and the lower courts it does a fairly good job of that (I think it’s read too narrowly and allows for too much government interference with speech, but that’s an aside to an already wide ranging discussion).

    I think the 1st Amendment is good because it limits the power of government and creates space for people to agitate for positive change. Yes, it also protects the rights of some people to maintain the existing power structure, but I don’t think a government empowered to stop odious speech would stop any but the worst of that sort of speech. At the same time I think it would stop the best speech advocating for real change (certainly that has been the historical experience in the USA).

  100. LeftSidePositive
    LeftSidePositive March 5, 2011 at 7:14 pm |

    William:

    Your argument continually boils down to: I don’t like police so therefore the government can’t do anything right. That’s fine for a privileged libertarian, but not for someone who’s actually being harassed and needs help. You can name every single episode of police overreach you want, but it will not change the fact that society depends on having a police force and it needs to be reformed of its abuses, but still available for people who need it.

    Also, “Oooh, there are so many churches you couldn’t protest without hitting a wedding or a funeral” ignores the fact that to count as harassment, you have to be targeting A PARTICULAR wedding or funeral. If you just happen to be protesting something else, no one cares.

    Also, you’re totally misrepresenting my argument by claiming I’m for banning WBC’s protests–I’m not. I’m just saying they (or other analogous groups) cannot use their speech specifically to harass others. And, I did say in post 84, which I already told you to re-read, that they may have been far enough away *in this particular case* but that “free speech” being used as cover for harassment is still a big deal.

    Actually make an argument about the pro-choice movement, don’t just insinuate, because your insinuation is not making a coherent argument. People need medical care no matter who is in charge of politics, so your point makes no sense. Actually, I consider the right to access medical care without being intimidated as MORE important than weddings/funerals/etc. The right to access medical care without being intimidated would not harm the pro-choice movement in any way if Republicans were in power, because pro-choice people never try to intimidate those seeking medical care. We’re not talking about reproductive rights protests in general, we’re talking about those tactics that specifically target and harass people in vulnerable positions. Really. It’s not that hard.

  101. LeftSidePositive
    LeftSidePositive March 5, 2011 at 7:18 pm |

    @Aaron, you may not have noticed but my rebuttal to you is out of moderation. Please see posts #89 and #90, if you haven’t already.

    Thank you.

  102. LeftSidePositive
    LeftSidePositive March 5, 2011 at 7:47 pm |

    @David, #99:

    Okay, here goes:

    1) An individual or individuals may be secure in their persons while seeking all manner of medical care, and while having need of conducting private ceremonies that constitute a particular and discrete moment of significance–such as a wedding, baptism, rite of passage, or funeral–of any person or persons, whether the ceremony be in public parks, houses of worship, or on private property, and while traveling to the immediate vicinity of the location of the medical facility or ceremony.

    2) An unwelcome individual or individuals, being herein identified as those who are unaffiliated with and at opposition to the participant(s) acting in clause #1, may not use the express occasion of a medical need nor a significant private life event to attempt to require the participant(s) to engage with the speech of those unwelcome individuals, nor to create a meaningful disturbance to conducting or obtaining a service, nor to render impossible or unfeasible the participation in such a service, by virtue of their proximity to the service.

    3) Any individual or individuals who seek to protest the private actions of other individuals may do so only such that their demonstrations do not encumber the object from conducting a medical procedure or significant life event in freedom and peace. Nothing in this Act shall be construed as the prohibition of demonstration against the public acts of any individual or group at the site of said public action or elsewhere, nor as the prohibition of demonstration or criticism in person, writing, or in electronic media against a private act or private practice in the absence of an identified target in proximity to the demonstration.

  103. RD
    RD March 5, 2011 at 7:59 pm |

    I kinda feel like passing laws decriminalizing marijuana, and indeed establishing its place within the right to privacy, and investing resources in prosecuting those who commit or enable police brutality (all of these reforms, of course, depend on government action, notice!)

    Just marijuana?

  104. Aaron
    Aaron March 5, 2011 at 9:09 pm |

    First, sorry for the messed up formatting in my last post (I think I have it right this time).

    LeftSidePositive: What about movements that aren’t that popular yet? Do the members of the oppressed group have to spend every waking moment of their lives defending themselves instead of actually LIVING like free citizens?

    Unfortunately yes, because the government is surely not going to affirmatively protect unpopular minority groups. The best they can hope for is that the government not actively oppress them – and I think preventing the government from interfering with their right to free speech is one way to prevent the government from actively oppressing them.

    LeftSidePositive: Just a few murders & beatings & cross-burnings here and there…no biggie, I suppose! This is totally delusional. Do you honestly think that civil rights just happened magically without HUGE resistance from society in general? Remember all those white kids screaming & spitting on the black kids going to school?

    My point is not that it was easy, my point is that by the time the government stepped in to “help” the battle was already won. Of course it was hard, of course people suffered, of course there was huge social resistance, but none of that changes anything about my point. The positive change came from the people, not the government. The government was, most of the time, an obstacle to positive change (most of those murders, beatings, and cross burnings were carried out by or with the ok of the police).

    LeftSidePositive: Because society can’t function–indeed no society has EVER functioned–without some degree of enforcement mechanism. And you need to pay your taxes. Deal with it. Just like people need not to harass each other. And, in your example, you’re spinning a tale of what happens if you willfully ignore EVERY other request of your society to contribute like it needs you to, and then calling it violence. Again, persecution complex.

    Taxes were just an example – all laws function this way. Yes, most people give up and comply before actual violence is used, but the threat of violence is always there. Government’s enforcement mechanism (as you euphemistically call it) is violence and the threat of violence. You may not think this is a bad thing (I don’t in some cases), but aside from soaring rhetoric and ad hominim attacks you never deny this fact.

    LeftSidePositive: This applies equally well to harassing protesters and why they need to be curtailed due to their real infringements on others’ freedoms.

    I’m a little dismayed that I have to point this out, but there is a huge difference there. The government is authorized to use violence against you to obtain compliance (and you are not legally authorized to resist), but the WBC is not legally authorized to use violence against you to obtain compliance (and you are legally authorized to resist if they attempt to).

    LeftSidePositive: Has any ACTUAL minority ever, EVER agreed with you on this?! Or are you just massively privileged to never need social legislation, and then stay all theoretical about how in a perfect world we’d all be totally nice to each other and therefore can imagine all social change without government?

    Nice guess, but you’ve missed the mark. I am an actual minority (I’m bi, polyamorous, pagan, and have a learning disability). I have directly and personally benefited from the protections of the ADA (for the learning disability). But I do not for a second believe that the intent of the ADA was my benefit.

    I don’t think we’d be totally nice to eachother in a world without government (though obviously we would in a perfect world), but I do think that most positive social change came despite government not because of it.

  105. Aaron
    Aaron March 5, 2011 at 9:11 pm |

    LeftSidePositive: Yeah, ’cause gay people can totally get married now and receive survivor benefits, tax breaks and everything else that goes along with marriage. Right.

    So your point is that government discrimination against homosexuals proves we need the government to protect homosexuals?

    LeftSidePositive: when an employer fires those who want to unionize, in real life you don’t have the ability to unionize.

    Sure you do. Read a history of the IWW and come back to me on that. The IWW frequently successfully unionized shops where the employer first fired those who wanted to unionize. And they did it with the active opposition of the government (the government never supported the IWW—and part of why it supported the AFL and the CIO was to get their help in putting down the IWW).

    LeftSidePositive: And, if you think that “the free market”

    You are arguing with someone else here. I never said a thing about the free market and have repeatedly said that I think government has some limited legitimate functions (one of those is some degree of market regulation).

    LeftSidePositive: Because the 1890s were such a glorious time of humane working conditions and economic advancement for the lower-middle-class?

    No, but unions made things increasingly better despite active government oppression.

    LeftSidePositive: All your grandiose talk about government “taking away” the right to unionize is actually GOING BACK TO HOW IT WAS BEFORE. Which sucked. When people DID NOT have protections on their labor, and needed them desperately. There was no time where everyone was happily unionized and then–oops!–the government mucked up this tranquil, idyllic, free-market paradise.

    Rather, the government FAILED to uphold its obligation to protect people’s rights of freedom of assembly, and then the usual cutthroatedness of human nature and economics took its course.

    Again you are arguing with someone else here. My point is that unions have a right to organize, period, full stop. When the government pretends that a union needs its permission to organize and when people buy into it, suddenly the government has the “right” to deny unions the right to organize.

    I’m not advocating in favor of GOING BACK TO HOW IT WAS BEFORE – because before the government actively fought unions (and as I think I’ve made clear I don’t think that government has a right to do that).

  106. Aaron
    Aaron March 5, 2011 at 9:12 pm |

    LeftSidePositive: Yeah, enjoy your freedoms in China, Somalia, or Venzuela. News flash: if a society’s power structure does not ACTIVELY protect your rights, you don’t actually get to enjoy them in real life.

    Your right to your property is worthless unless a government will help you and arrest/prosecute those who try to take your property.

    This is, in fact THE REASON governments exist–so that people can live in ordered society where their rights are protected. Remember this?

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

    I’ll grant you, some governments don’t do ENOUGH to support their people’s rights, but that’s not the same as saying, “O, we’d magically have rights if no one defended us!”

    Again, most of this is directed at something I am not arguing. I am not advocating anarchy (which is why Somalia is not a counterexample for my position, as I explained above). But it is worth noting that the problem in your other two example countries, China and Venezuela, is too much government not too little.

    I am rather fond of the portion of the Declaration of Independence that you quote. I don’t agree with the Creator part, but the rest is true. But, that doesn’t conflict with my position. I believe that we have rights before we have governments and that the legitimate purpose of governments is to protect those rights. What I don’t believe is that there exists a government which does nothing but secure those rights, nor do I believe there is a government which takes as its actual purpose securing those rights. (I also don’t believe there is any national government which actually has the consent of the governed, but that’s a whole different issue). Jefferson describes what government should be but not what government is.

    LeftSidePositive: Isn’t that a call to reform the actions of the police–i.e., to pass laws protecting those who are not currently sufficiently protected–rather than a call for anarchy?

    Yes, but, as I said in comment 88, I am not calling for anarchy. It is also an indictment of the government and reason to distrust the government.

    LeftSidePositive: Do you honestly think your life would be better if there just were no police, or no court system?

    Where, then, would you turn if your rights were violated? Do you just not care if a non-governmental group kidnaps you and beats you? Better that than having a police force?

    No, I want a police force and courts. I simply want a police force with minimal power, limited to enforcing a handful of just laws, and which is actually punished when it violates the rights of citizens (same goes for the courts).

    But, I’d rather be beaten and kidnapped by a non-governmental group than a governmental one – criminals who know they are criminals are much more honest than those who don’t.

    LeftSidePositive: I kinda feel like passing laws decriminalizing marijuana, and indeed establishing its place within the right to privacy, and investing resources in prosecuting those who commit or enable police brutality (all of these reforms, of course, depend on government action, notice!), would do a hell of a lot more than a) abolishing the police (which is the only logical extension of your argument, or b) denying that marginalized groups have a right and currently-unmet need to turn to the police when threatened or harassed.

    I’d say legalization rather than decriminalization (since I think I have a right to put any substance in my body that I want to, so long as I’ve obtained it through legitimate means), but that’s minor.

    I really don’t think my argument leads to a logical requirement we abolish the police. I’ve argued that governments primarily function to protect the interests of the elite, that they operate by violence and the threat of violence, that they often violate the rights of the citizens, that when they purport to be helping the oppressed I doubt they are, and that governments should have very limited powers. But I have also said that there are some times when violence or threats of violence are morally justified, that governments have some legitimate purposes, and that I don’t think that we would be better off in a state of nature. I don’t see a contradiction there.

    I want a very small, very weak, very well policed police force, but I don’t want to live in a world with no police at all. I also want to live in a world where the police use their limited powers to protect all people.

    LeftSidePositive: Tell me, honestly, how much harassment by groups organizing against you have you actually lived through?

    Honestly, I’ve had to deal with it more than some, but less than others.

    I’m a pagan. I practice my faith at rituals in open spaces, and have participated in several Pagan Pride Day events. I’ve had several rituals and PPD events disrupted by people opposed to my religion. I’ve had to leave rituals to stand between people shouting at us to allow them to finish the ritual with some degree of protection. I’ve had to confront people screaming at me, my co-religionists, and their children that we were all going to Hell. I’ve been there, and it sucks, and it is terrifying, and I never once received any police support. YMMV but I feel much safer with the protection of someone from within my community, someone I know has my best interests at heart (if only because they are also in their best interests), then I would with the protection of the police who may well agree with the people yelling at me.

  107. Kristen J.
    Kristen J. March 5, 2011 at 9:15 pm |

    @RD. Hey M & I were at that same rally. Small universe and whatnot.

    @Aaron

    The government is people. Its just people. Government isn’t an entity beyond the agents that act on its behalf.

    Also, as a progressive I don’t particularly give a crap why the founders created something. I’m more interested in how existing institutions can be reformed to better serve the needs of every member of society. If I can get that out of the FA, excellent, if not I’m going to advocate for its modification or abolishment. (Plus the whole freedom of speech thing, mainly a 20th Century judicial creation anyway so we might as well take it all the way.)

  108. Aaron
    Aaron March 5, 2011 at 9:48 pm |

    Kristen J.: The government is people. Its just people. Government isn’t an entity beyond the agents that act on its behalf.

    I only agree with that to an extent. Government is made up of people, but it is also a unique entity. It has a monopoly (or virtual monopoly) on the right to use force where as people don’t. More importantly it lets the people who make it up psycologicaly distance themselves from the actions they take on behalf of the government. A person who would never kill in his or her private life may be more than willing to do so on behalf of the government. Government, even though made up of people, acts to allow people to behave more immorally than they otherwise would.

    Kristen J.: Also, as a progressive I don’t particularly give a crap why the founders created something. I’m more interested in how existing institutions can be reformed to better serve the needs of every member of society. If I can get that out of the FA, excellent, if not I’m going to advocate for its modification or abolishment. (Plus the whole freedom of speech thing, mainly a 20th Century judicial creation anyway so we might as well take it all the way.)

    Look I don’t think we should be bound by what the original intent was or any of that BS, but that doesn’t mean it wasn’t created with some purpose in mind. It’s fair to say you don’t like what it does, it’s fair to say that it has been misread, or misapplied, but to criticize it for failing to do that which it was never intended to do and never well suited to do is confusing. I mean, the 13th Amendment does a piss poor job of protecting voting rights, but that doesn’t mean we should abolish or modify it – it was never intended to protect voting rights and to criticize it on those grounds is bizarre.

  109. Kristen J.
    Kristen J. March 5, 2011 at 10:12 pm |

    @Aaron,

    The FA as it stands was a judicial reinterpretation of a narrow clause. I think its fair to say in light of the Alien and Sedition Acts and the early decisions that the founders did not have the same view of freedom of speech that we do. The Court broadened the FA greatly to protect the disenfranchised. I don’t think criticizing its effectiveness is bizarre. I also don’t think its bizarre to see where we need to get, examine where we are and point to what needs to change to get us there.

    Also, Stanford study. People abuse power because they are people, not because government provides psychological cover.

  110. David
    David March 5, 2011 at 10:28 pm |

    LeftSidePositive: @David, #99:Okay, here goes:1) An individual or individuals may be secure in their persons while seeking all manner of medical care, and while having need of conducting private ceremonies that constitute a particular and discrete moment of significance–such as a wedding, baptism, rite of passage, or funeral–of any person or persons, whether the ceremony be in public parks, houses of worship, or on private property, and while traveling to the immediate vicinity of the location of the medical facility or ceremony.2) An unwelcome individual or individuals, being herein identified as those who are unaffiliated with and at opposition to the participant(s) acting in clause #1, may not use the express occasion of a medical need nor a significant private life event to attempt to require the participant(s) to engage with the speech of those unwelcome individuals, nor to create a meaningful disturbance to conducting or obtaining a service, nor to render impossible or unfeasible the participation in such a service, by virtue of their proximity to the service.3) Any individual or individuals who seek to protest the private actions of other individuals may do so only such that their demonstrations do not encumber the object from conducting a medical procedure or significant life event in freedom and peace.Nothing in this Act shall be construed as the prohibition of demonstration against the public acts of any individual or group at the site of said public action or elsewhere, nor as the prohibition of demonstration or criticism in person, writing, or in electronic media against a private act or private practice in the absence of an identified target in proximity to the demonstration.  

    What is your definition of “proximity”, what is your definition of “encumber”, what is your definition of “unwelcome individual” and “at opposition” ?

    If I’m sitting in a particularly moving speech made by a politician, do I have the right to be free from protestors, you know, protesting the contents of that politician’s speech?

    Does something get the “special significance” tag if it’s only a certain type of event? What if someone hateful comes and speaks at a graduation? Graduations are important life events. Do I not get to protest that person’s arrival?

    Just figured we could iron out some of these wrinkles before we decided that this is a good idea ;).

  111. Aaron
    Aaron March 5, 2011 at 10:36 pm |

    Kristen J.: The FA as it stands was a judicial reinterpretation of a narrow clause. I think its fair to say in light of the Alien and Sedition Acts and the early decisions that the founders did not have the same view of freedom of speech that we do. The Court broadened the FA greatly to protect the disenfranchised. I don’t think criticizing its effectiveness is bizarre. I also don’t think its bizarre to see where we need to get, examine where we are and point to what needs to change to get us there.

    Given the Alien and Sedition Acts I think it’s fair to say the founders were hypocrites (see also, Jefferson and slavery). But again, I’m not that tied to original intent.

    I agree there is nothing wrong with criticizing its effectiveness, but such criticism has to based on what it is designed to do. Cars are not very effective a firing bullets, tort law doesn’t walk my dog, and the American Court system has never once baked me a delicious cupcake. But none of that is a reasonable criticism. Your criticism was that the 1st Amendment “does not support the concept that we should treat each other as having equivalent value.” True, but that is so far removed from what the 1st Amendment was designed to do (or is understood to be for today, take your pick) that it is a non-criticism.

    Kristen J.: Also, Stanford study. People abuse power because they are people, not because government provides psychological cover.

    The Stanford study suggests that people who have power over other people will abuse the people they have power over – if that isn’t an argument against a government which gives people a great deal of power over others I don’t know what is.

    But also, Milgram Experiment. People are more likely to abuse if they have the cover of having been “ordered” to do so by someone they perceive to have authority.

  112. RD
    RD March 5, 2011 at 11:19 pm |

    Kristen J.: @RD.Hey M & I were at that same rally.Small universe and whatnot.

    You were?!?? No kidding! That is amazing! I was there with my SO and others coming from NYC. Are you involved with sex workers rights organizing then? You can email me if you want, paeonia (dot) d (at) its a gmail acct.

  113. Kristen J.
    Kristen J. March 5, 2011 at 11:55 pm |

    @Aaron,

    The thing is protecting YOUR freedom of speech probably wasn’t what the FA was intended to either. Judicial activism got us that protection. If we want to move forward we need to re-examine the balance of protection and make better decisions.

    The Stanford study demonstrates that power corrupts. Without gov’t restraints what do you think happens? People don’t naturally have equivalent power. Without collective action the strongest, meanest or most charismatic will be the ones with power to coerce everyone else.

    In those studies the issue is power. Authorization merely overcomes whatever qualms a person might have about violating social norms. It has little to do with government as an institution providing authorization and more to do with exculpation and protection from moral and legal responsibility. But where there are no rules and no governmental authority people do not hesitate to abuse one another.

  114. GallingGalla
    GallingGalla March 6, 2011 at 1:00 am |

    LeftSidePositive: What about movements that aren’t that popular yet? Do the members of the oppressed group have to spend every waking moment of their lives defending themselves instead of actually LIVING like free citizens?

    This is *exactly* what trans folk such as myself go through. The government is not only *not* there for us, but is the most powerful force of oppression in our lives. Seeking redress through the government rarely works even for relatively privileged trans folk such as myself (white, middle-class [but long-term unemployed]), and virtually never works for trans folk who face other oppressions also (race, class, disability, etc).

    cf: The nearly universal practice of putting trans women in men’s jails and prisons and then doing nothing to prevent them from being raped.

    cf: The government utterly ignoring the fact that we are murdered at twelve times the national average rate.

    cf: Police harassment of and violence against trans and gender-variant folks, especially those of color; police are implicated in the murders of Duanna Johnson and Nizah Morris, for example. Or as noted above, *cis* lesbians in prison because they dared to defend themselves from a homophobic attack. cis lesbians of *color*. Or the many trans women who’ve been arrested, and in many cases abused, by police officer for daring to *pee* in the women’s restroom.

    cf: The US gov’t shutting down internet pharms that are often the only source of hormones, thanks to the ridiculous gatekeeping requirements – enforced by the same goverment – that make it impossible for trans folk to get the medical care they need from so-called “legitimate” sources.

    cf: How difficult it is to change the gender marker on your license, social security records, passports, birth certificates, thanks to governments that put up impassible barriers, and the danger that puts us in danger any time a cop or other government agent sees the mismatched id (female name / male gender marker must mean I’m a terrorist, right, TSA?)

    cf: the resistance by government to providing us with even basic protections, such as the right to work and have a place to live; the ever-bleeding bathroom libel rolled out at every opportunity by the likes of Barney Frank; the several states that have non-discrimination legislation for cis gay men and lesbians, but not for trans folk.

    Yeah, right, I’m gonna sit on my duff and wait with baited breath for the police-industrial complex to protect my trans ass, LFP.

    LeftSidePositive: if you discriminate against people in your business, the law WILL come in to shut it down, you WILL be fined, and of course if you resist enough you’ll set off a chain of events that can put you in jail, just like violating any other law.

    What a load of BS this is. The City of Philadelphia, PA, where I live, has an ordinance that supposedly prohibits discrimination against TBLG people in hiring, housing, and public accomodations. Of the three hundred or so complaints filed since the city ordinance was extended to cover TBLG folk, the city has ACTED ON ONLY THREE OF THEM. The rest were trash-canned.

    Even in incredibly egregious actions captured on video, like a cop murdering a black man who’s handcuffed, on his belly with cops knees on his back, the penalties are ridiculous. Explain to me how the bleeding HELL a cop who murdered this man in cold blood gets off with a two-year prison sentence?

    William: This isn’t about WBC and funerals, its about the oppressed persons who this precedent will be used to further oppress if they dare speak in public.

    This is key. Hence: As much as I hate, HATE Phelps and his gang, I’m in agreement with this ruling.

  115. LeftSidePositive
    LeftSidePositive March 6, 2011 at 2:02 am |

    GallingGalla, I think you’re misunderstanding the difference between the overt discrimination that the government does (and still does), and the fact that gov’t merely being passive with regards to minority issues is not enough. Freedoms have not been won by the government saying, “okay, now we’ll just ignore so-and-so,” but rather have been the result of an active embrace of that group’s rights.

    I certainly in no way meant that marginalized groups should wait silently for governmental protection, and I really don’t know how my comments could have been construed as such. I meant that it is right and necessary for marginalized groups to demand better treatment and protection from their government (and indeed, your points 2, 5, and 6 require more action from authority, not less), and moreover that having to contend with systemic discrimination imposes a severe cost to one’s quality of life. Without laws that actively defend those interests, it wouldn’t be a Randian libertarian fantasy world of everyone getting along–marginalized groups would have to spend most of their time, effort, and money working around the discrimination & harassment from private individuals.

    Regarding non-discrimination statues: In the context of my argument, I was referring to how force of law for relatively noncontroversial policies could still be melodramatically considered “force” because William and Aaron were fantasizing about violence *inherent* in government policy. I was not making any argument whatsoever about the effectiveness of non-discrimination statutes themselves as they currently stand, just that they do carry the same potential for the force of law that William & Aaron were worrying about for a hypothetical anti-harassment measure.

  116. RD
    RD March 6, 2011 at 2:46 am |

    LOL. Anyone who supports freedom of speech or disagrees with LSP is a libertarian now!

  117. Kristen J.
    Kristen J. March 6, 2011 at 7:45 am |

    @Aaron,

    To clarify further, you said that government gives one group more power over another group. This is where I think our core disagreement lies. I think sans government the power imbalances are much, much greater and that collective action provides some reduction in this imbalance.

    But where government takes the form of a democracy disenfranchized groups will often fail to receive all the protections provided to those in power. The. Bill of Rights was intended as a bulwark against such tyranny. It provides for a minimal level of equality, but I think it can and should do better.

    The FA protects people when it protects unpopular speech. Even hate speech in political and non-targeted circumstances. But where speech is used to harm people, to target specific individuals, the FA no longer performs it core function. Instead of protecting the disenfranchized from the tyranny of the majority it allows the powerful to further oppress those who are less powerful.

  118. Aaron
    Aaron March 6, 2011 at 7:50 am |

    Kristen J.: But where there are no rules and no governmental authority people do not hesitate to abuse one another.

    Yes, I agree. But as I’ve said I am not advocating for anarchy. You are arguing against anarchy as if the problems with anarchy were in any way relivant to my position.

    I have never said we should have no rules and no governmental authority. I have said we should have few rules and a government with very limited powers.

    Kristen J.: The thing is protecting YOUR freedom of speech probably wasn’t what the FA was intended to either.

    I’m not sure how this responds to my point that you are judging the 1st Amendment because it “does not support the concept that we should treat each other as having equivalent value.” And that criteria is nonsensical.

    I think the 1st Amendment (as it applies to speech) was intended to protect freedom of speech. I think that the founders had an overly narrow understanding of freedom of speech. I think that (as I’ve said) our rights predate government and that we have a right to speak freely by virtue of our humanity. I think that today the courts are closer to protecting the full extent of that right from government intrusion then the courts of the 18th Century. I think that is a good thing, and I think that shows the 1st Amendment is working well. I suggest that the 1st Amendment was designed to protect a right and that the criteria for judging the 1st Amendment should be how well it protects that right (not how well it protects the cramped understanding of that right the founders had).

  119. Aaron
    Aaron March 6, 2011 at 8:04 am |

    LeftSidePositive: it wouldn’t be a Randian libertarian fantasy world of everyone getting along

    I want to pull this out for 2 reasons:

    First, because you seem understand Rand very differently than most people. Rand fairly explicitly advocates for the dominance of the strong over the weak and the idea that personal selfishness is good. She had something of a hate for charity, generosity, and all that stuff. Really reading Rand is kind of like reading a surface level interpretation of Nietzsche. In the Randian fantasy world the strong dominate the weak (and in her fantasy version of government today the weak dominate the strong). It’s just that in the minds of most Randians they are the strong being oppressed now and who will be doing the oppressing later (that’s perhaps why the fantasy world of Rand’s future is always painted so brightly).

    Second you seem to be conflating “libertarian” and “Randian”. Not all libertarians are Randian. Most are not. I certainly am not a Randian, though libertarian would not be an unfair label to apply to my positions. (More accurate would be left-libertarian with some qualms that go well beyond the scope of this discussion.)

  120. Kristen J.
    Kristen J. March 6, 2011 at 8:17 am |

    @Aaron,

    A government with limited powers allows the majority to abuse the powerless. The difference isn’t one of absolutes, but rather one of degree. You cannot protect yourself from others without government intervention. The reason you think limited government would protect you is because you are less likely to suffer abuse at the hands of your fellow citizens. My clients need police protection to *survive.*

    It is absolutely true as William and Galling have pointed out that agents of the government like the police who operate without meaningful oversight will abuse others, but that is not a flaw in “government” that’s a flaw in OUR government as currently constructed. The powerful decided that its okay if police abuse the powerless so long as they’re power isn’t challenged. Its a product of the same inequity the Bill of Rights was trying to protect against. But clearly the BoR didn’t go far enough.

    I addressed the equity issue above. I think you and I either have different understandings of the historical context of the BoR or of the function of rights in a democracy.

  121. Aaron
    Aaron March 6, 2011 at 8:51 am |

    Kristen J.,
    I should have read your comment @120 before responding to you @116 – I largely agree with you @120.

    I think you’ve pointed to where one of our core disagreements is, but I agree that power imbalances without government at all would be worse (I actually think anarchy very quickly turns to tyranny – which is the worst form of government). I think a very weak government that is permitted to operate in only a few spheres is the one that best promotes the goal of minimal power imbalances among people. I think, if I am reading you correctly, that you think a stronger government permitted to enter into more spheres of activity is one that best promotes the goal of minimal power imbalances.

    But, I think we have another, equally important disagreement. I also think that human beings by virtue of human beings have an absolute right to say anything they want. So long as it remains speech, I don’t think anyone has any right to prevent them from speaking. And I gather that you disagree with this as well.

    I think our other disagreements stem from those two. I think, because a weak government is a better promoter of equality, that when the 1st Amendment prevents the government from interfering with pure speech –even targeted, hateful, harmful speech – it is serving its core function of protecting free speech and it is serving the good of all by ensuring a weak government. Even if it didn’t serve the good of promoting a week government, I would think it was good, because I believe that rights are absolute and that any infringement on a human’s rights is morally wrong.

    I’m not sure there is any way to reconcile our disagreements – I think we agree on the goal (or at least we agree on a goal) we just disagree on what path makes the most sense to get there.

  122. Aaron
    Aaron March 6, 2011 at 10:32 am |

    Kristen J.: The reason you think limited government would protect you is because you are less likely to suffer abuse at the hands of your fellow citizens.

    I understand that most libertarians come to libertarianism from a place of privilege. I do, I get it, but that is not the case for me.
    I HAVE suffered abuse at the hands of my fellow citizens. I have been abused for being pagan and for my learning disability (I said this above in a reply to LeftSidePositive, but given the length I understand why you may have missed it). I’ve been called “retard” and “dirt worshiper”, I’ve had religious services disrupted by angry ignorant people, I’ve been told I will burn in Hell, I’ve been told I am stupid and worthless. I’ve been fortunate to not be abused for my bisexuality or polyamory — but I also know that I’ve been fortunate and I don’t expect it to last forever. And that’s all group membership stuff, stuff I can reasonably expect to continue into the future. I was also sexually assaulted as a child. So, yeah, I know what abuse at the hand of my fellow citizens is. I’ve experienced it, personally, not theoretically, not in the abstract, and I expect to experience it again.

    I think limited government would protect me better because I honestly believe that limited government will protect all oppressed people better. I think the only ones who will suffer a loss of protection when the government is weakened are the powerful elite. I think that in a society with a weaker government I will have less white privilege and less male privilege and I think that’s a good thing.

    Kristen J.: My clients need police protection to *survive.*

    Some of my clients need police protection to survive too. As I said above, I think there are a few times when it is legitimate to use the power of the state. Protecting victims of domestic violence is one of those times. I know they need police protection to survive. I’ve done the work helping them get restraining orders, work with police, and press charges. I would not do that work if I didn’t think it was important.

    But if the police had less power – say they weren’t allowed to spend time harassing drug users or homeless people – they would spend more time doing the legitimate work of enforcing restraining orders. I’ve had long and drawn out arguments with police departments who didn’t see enforcing my client’s restraining orders as a priority.

    Of course, some of my clients needed protection from the police. I’ve worked for the Innocence Project and know there are countless actually innocent people rotting in American jails right now – most of them would be much better off with a weakened government. I also represented a former prisoner in his civil rights suit against the Bureau of Prisons and he would have been much better off with a weakened government.

    I think all of my pro bono clients would be better off if the government were weaker. Some of the paying corporate clients I’ve worked for would be in big trouble, but I’m having a hard time working up much sympathy for their plight.

  123. Kristen J.
    Kristen J. March 6, 2011 at 11:39 am |

    @Aaron,

    So with a limited government how do we resolve homelessness, child abuse, domestic violence, poverty, inadequate support for PWD, hate crimes, discrimination, prisoner abuse, lack of health care, etc.? Its simply incomprehensible to me that you think these problems go away if government is limited. At any point past or present has a society as large as ours been able to accomplish any of these goals with a limited government? Government didn’t create these problems, people did. People, including police, prison officials, medical providers, parents, famous rapists, anyone with unchecked power over another will continue to do all of these things until someone or something stops them.

    I appologize for assuming you were coming from a place of privilege that was wrong of me.

  124. Kristen J.
    Kristen J. March 6, 2011 at 11:57 am |

    Also, my clients include trafficked asylum seekers, people living with substance abuse, abused and neglected children, vets, families in need of financial assistance, and people who are homeless each of which were asking the government for help. Few of which have ever indicated to me that they think they would be better off left alone.

    Some categories of clients would probably agree with you like the sex workers I’ve represented, but I think that’s a product of criminalization of a non-harmful activity and unchecked police power which cannot be resolved by simply weakening the police force. Instead the police need to be held to the same standard of behavior. They cannot be permitted to harrass or abuse any person, but who in your limited government scheme would make that happen?

  125. Aaron
    Aaron March 6, 2011 at 3:27 pm |

    Kristen J.: So with a limited government how do we resolve homelessness, child abuse, domestic violence, poverty, inadequate support for PWD, hate crimes, discrimination, prisoner abuse, lack of health care, etc.? Its simply incomprehensible to me that you think these problems go away if government is limited.

    I don’t think these problems go away under properly limited government, but I think that properly limited government at the very least creates more space to fix these problems. I think that there are 3 categories of problems in that list and that the answer is different for each.
    I see child abuse, domestic violence, hate crimes, and prisoner abuse as crimes of violence. They all involve violating the bodily autonomy of another person without their consent. I think almost all libertarians would say that arresting and punishing those who commit such crimes are legitimate government functions. (I know some would disagree with me on hate crimes, but I see nothing wrong with punishing someone more severely for an assault or murder intended to terrify an entire group of people than a battery or murder intended to harm just one person) I think if the police weren’t busy enforcing laws that I think are immoral (laws against drug possession, use, and sale, blue laws, etc.) that they would have more time to spend enforcing laws that need to be enforced. And even if reducing police authority doesn’t result in an increased enforcement of laws that should be enforced it will, at the very least, reduce enforcement of immoral laws (I think it will increase good policing, but even if it doesn’t it will reduce bad).
    I see homelessness, poverty, and lack of health care as the result of unfair distribution of wealth. I’m a left-libertarian which means (at least in my case) that I take Locke seriously when he said that we have a right to take what we will from nature so long as we leave “enough and as good” for all our fellow humans. Right-librarians like to ignore the caveat “enough and as good” (and have done such a good job co-opting the term “libertarian” that I often hesitate to say I am a libertarian because people hear it and assume I mean right-libertarian). This means that some people have taken more than their fair share of the natural resources and in doing so deprived others of the right to obtain those resources. I think that it is a legitimate function of government to rectify such abuses. In other words I see nothing wrong with the government engaging in redistribution of wealth, and that is what I would advocate for. I like to think that a government that was able to do less would spend more of its money fighting poverty and properly redistributing wealth – I suspect that is a pipe dream but even if it merely reduces taxation I think that would free up some wealth to be used towards those goals. I know I’d be able to give more to charity if my tax dollars were not being spent on illegal and immoral military adventurism and were instead returned to me.

    I see inadequate support for people with disabilities and discrimination as social problems. That is problems that stem from the fact that our society is sick, rather than from the immoral behavior of some one person we can point to. To be honest, I think this is the set of problems least likely to be helped by a reduction in government because a sick society is sick no matter how much or little government it has. But I think the less the government actively reinforces the sickness (and a more limited government would be able to do less, and ideally nothing to actively reinforce discrimination) the better off minority groups are. I also think the less we expect government to help us solve these problems the more we focus our energies on collective organization and finding individual solutions. I think that too much good progressive energy goes into trying to get the government to help people (and that we have to spend way too much energy just trying to get the government to stop hurting people), and I think if the government did less we would start from a place of less oppression and be able to move more meaningfully towards a better society. But, to be honest, I also think that we don’t have a right to use force to end private discrimination (and I think all government is, at its heart, force or the threat of force) so using government to fix this problem is morally problematic at best – even if you could convince me that it would not be counter-productive in the long run.

    Kristen J.: At any point past or present has a society as large as ours been able to accomplish any of these goals with a limited government?

    I would argue that most (if not all) of the advances on these fronts in the USA have come from collective action of the sort I am advocating, in the face of government opposition. And that we can reason that once government opposition is removed social change will be easier. But, no I am aware of only a few societies in history as large as the USA and all of them—to the best of my knowledge—have had governments at least as strong as the one the USA has today. But, I am also not aware of any society as large as the USA which has achieved these goals period. I think that any attempt to achieve these goals is steering into uncharted waters and all any of us can do is look at what has and hasn’t worked in the past and try to figure out from that what the best course forward is.

    Kristen J.: Government didn’t create these problems, people did. People, including police, prison officials, medical providers, parents, famous rapists, anyone with unchecked power over another will continue to do all of these things until someone or something stops them.

    I think that most of these problems have numerous causes. Some of those causes are people and some of those causes come from governments. I certainly think that all of these problems have been exacerbated by governments.
    I agree 100% that people with unchecked power over others will keep doing these things until stopped. I think that one way to reduce the number of people with unchecked power over others is to reduce the power of the government. A police officer who is not allowed to stop anyone they want and frisk them, who is not allowed to turn a rude response into “disorderly conduct” or “resisting arrest”, and who can’t turn minor traffic violations into a cause to detain someone for hours while their car is searched is a police officer who has less power over others and who is less likely to abuse others. A mayor who can’t arbitrarily decide that alcohol can no longer be sold in a certain location is less powerful and less able to abuse others. And so on.

    I agree that these problems will continue until someone stops them (and I think that the government does have a role to pay here) I just think that individuals voluntarily acting in cooperation are going to do a better job of fixing those problems – especially if the government will get out of the way.

    Kristen J.: I appologize for assuming you were coming from a place of privilege that was wrong of me.

    Thank you. I’m sorry for jumping down your throat about it, I’m overly sensitive about it and I overreacted.

  126. Aaron
    Aaron March 6, 2011 at 3:56 pm |

    Kristen J.: Also, my clients include trafficked asylum seekers, people living with substance abuse, abused and neglected children, vets, families in need of financial assistance, and people who are homeless each of which were asking the government for help. Few of which have ever indicated to me that they think they would be better off left alone.

    I apologize I misunderstood who you meant by your clients.

    I think my other post addressed this most of this, but just to be clear and because I think it is important to repeat – I think that helping most of those groups of people is well within what my concept of limited government is and that all would be better off with more limited government.

    Because I was not specific before, and because I know a large number of people who self-identify as libertarian want a brutal immigration regime, I do want to say that I think one of the rights people have before government is the right to travel freely where they will. I think that anyone who comes to the USA of their own free will should be allowed to stay in the country for as long as they wish to remain here and should be allowed to leave whenever they want. If we lived under my ideal government there would be no need to seek asylum because the government would not deport anyone against their will.

    I will say that I don’t think that helping people struggling with substance abuse is something that falls within the purview of the government. But, I think that those whose substance abuse involves now illegal substances would be much better off if they did not face the constant threat of arrest for their substance abuse and if seeking help didn’t render them vulnerable to legal prosecution.

    Kristen J.: Some categories of clients would probably agree with you like the sex workers I’ve represented, but I think that’s a product of criminalization of a non-harmful activity and unchecked police power which cannot be resolved by simply weakening the police force.

    I think I was unclear. By weakening the police force I mean making it so that they are not allowed (among other things) to enforce laws against sex work (the government would not be allowed to regulate consensual activity among adults). That is, reducing the number of things which they have the authority to do. So, no enforcement of crimes that consist solely of consensual behavior, no enforcement of drug crimes, no enforcement of immigration law, no “random” searches, etc.

    Kristen J.: They cannot be permitted to harrass or abuse any person, but who in your limited government scheme would make that happen?

    I think this is a serious problem. The government, ultimately, has to be self-policing. The citizenry can try to keep them honest (and that is increasingly possible in the modern age of camera phones) and we can institute serious punishments for those who use their authority to harass and abuse. But in the end I don’t have a good answer to this question.

    I don’t think there is a good answer to this problem under the current system either, and I think that it is legal for the police to do so much makes it essayer for them to harass and abuse, but I think that this question raises a serious problem. I wish I had an answer but I don’t.

  127. Street harassment snapshot: March 6, 2011 « Stop Street Harassment!

    […] Feministe, “Westboro Baptist Church protests are protected speech“ […]

  128. nathan
    nathan March 6, 2011 at 9:15 pm |

    I think one of the road blocks here when speaking about libertarianism is that when most of us, myself included, consider libertarianism, it’s instantly linked with some form of “free market” capitalism. In addition, the people who I have known who claimed libertarian views, as well as those who are declared members of the U.S. Libertarian Party – from political candidates to enthusiastic college students, have little to nothing to say about patriarchy, systemic oppression, or the extreme wealth imbalances that have developed in the U.S. With forms of oppression, they’re mostly hands off, unless it involves government invasions into privacy or business. And with wealth imbalances, they mostly think that said money and material goods are products of the “hard work and intelligence” of CEO X or corporate leader Y.

    I tend to trust collective, grassroots action and organizations better than the government to deal with issues of injustice, but also see the government as having played a sometimes beneficial role in those issues, especially when the “people power” is organized and the pressure is strong on government leaders to do the “right thing.” The longer I live, though, the less I’m inclined to support large government solutions to major social problems for a myriad of reasons others have brought up. However, I’m also firmly against the kinds of hands off approaches coupled with uber capitalism that I see most libertarians advocating for. Our economic structures are, in my view, a major part of the society’s sickness, and so just pressing for government to step back, and get their hands off, is destructive in my view.

    We’re seeing it right now, with these Tea Party influenced Republicans at the state and Federal level pressing for cuts in every last program they can find, but with no real answers as to how to replace the work that said programs did. I don’t think the majority of these super privileged leaders give a shit about that work in the first place, and those that do offer really flimsy answers like “Oh, let the churches take care of poor and struggling people.”

    So, when I hear statements like “limited government is better,” I always want to say – what about the abusive, predatory, environmentally destructive economic system we have? Because much of oppression is intimately tied to it, so just stripping government of powers that lead to oppression doesn’t address the rest.

  129. Aaron
    Aaron March 7, 2011 at 9:17 am |

    Nathan,
    I hear where you are coming from. Many of the loudest and most obnoxious libertarians do hold the beliefs you describe, but you have to keep in mind that libertarianism is both a philosophy (by which I mean that it describes a school of philosophical thought, not that some people live by it) and a political movement. There are a wide range of differing opinions that fit under that very broad umbrella (as there are with all philosophies and all political movements). The people you describe no more speak for all libertarians than Fred Phelps (to come back a bit to the original topic) speaks for all Christians –he may be one of the loudest and most obnoxious, and his views get a ton of press, but we wouldn’t (I hope) judge all Christians based on Phelps.

    I’m not a big fan of the “free market” (I personally prefer a “freer market” – in part for the reasons I’ve discussed above), but I will say this about the “free market”. Most of the worst abuses of corporations come with an assist from government. Laws limiting the power of unions aid in the creation of crappy working conditions. Laws providing high barriers to entry into the marketplace aid in the creation of monopolies and virtual monopolies. Government subsides allow big corporations to push smaller competitors out of the market. Government bailouts insulate large corporations from the results of their mistakes and remove incentives to behave reasonably in the market. I could go on, but you get the idea. The point is the USA’s economic system has nothing to do with the “free market” and the problems with the current system are, at the very least, exacerbated by the government.

    But, to come back to your larger point, it sounds like most of the libertarians you have met are Randians, so you are getting libertarianism through the lens of one particular popularizer. It’s like only meeting Stalinists and treating them as representative of Communism without ever reading Lenin, Mao, Trotsky, or, god forbid, Marx. There are tons of other takes on libertarianism. Hang out with some sci-fi people (not to mention futurists) and you’ll probably meet some fans of Heinlien or, even better, Robert Anton Wilson who espouse a libertarian position. Hang out with some pagans and you’ll find plenty of people who believe, “An it harm none, do what thou wilt shall be the whole of the law,” which is the libertarian harm principle with a different metaphysical coating. Hang out with philosophers or political scientists and you’ll no doubt meet some actual fans of Locke. (Many historians, especially those interested in the American Revolution, are also fans of Locke.) And all of those are librarians you can meet in real life, there are also plenty of great libertarian blogers across the political spectrum if you want to educate yourself without too much effort. Point being, libertarians are everywhere and you shouldn’t let a vocal and obnoxious portion of them color your views of the whole group.

  130. nathan
    nathan March 7, 2011 at 12:53 pm |

    It’s fair to point out that libertarians are a diverse bunch. There are elements of my views, and probably many others on here that would fall under that umbrella. In addition, I agree with you that corporate/government “partnerships” are behind a hell of a lot of abuses.

    We can take a similar view of Democrats. Diverse bunch, right? But the vast majority don’t act and think like Rep. Barbara Lee or Rep. Kucinich. As the Republicans have further to the right, so have the Democrats. So, I can at the same time understand that all these groups are diverse, but point out that the most powerful and influential are doing certain things. And when it comes to those who advocate for positions that fall under libertarianism, the loudest and most obnoxious are the ones with the most power right now.

    Whereas the Phelps family is reviled by the vast majority, people linking far less government intervention and “free markets” (Yes, they aren’t free, but that’s the lingo) are not only in political power, but also run Fortune 500 and other large corporations. I’d argue that most probably neither call themselves libertarians, nor would be considered so by people who actually have studied philosophies of government. Rep. Ron Paul comes to mind, as does the CEO of Whole Foods – two people who have spoken fondly of libertarian values, and support what would be considered libertarian positions. Glenn Beck is another – one who actual cites Rand – whereas, honestly, I don’t think a lot of folks out there are really versed on John Locke, Rand, or any of the rest. How many Americans have even read Adam Smith?

    Also, I really can’t get over the fact that the self-espousing libertarians I have know or see in the public spot light are all white men, or powerful, privileged African American men like Justice Clarence Thomas.

  131. Jade
    Jade March 7, 2011 at 2:18 pm |

    LeftSidePositive and William – I just wanted to clear something up about the Coast Guard. For one thing, they are a branch of the military. Part of what they do is dealing with drug lords and pirates (yes, there are still pirates), but there’s more that they do. They also respond to distress calls from sea going vessels both foreign and domestic. Also, as far as there being “no real threats to out coasts in living memory”, not all threats are from a human source. The Coast Guard was responsible for a large portion of the rescues after Katrina and for collecting bodies afterwards (as were other branches of the military). The Coast Guard is often called in for rescue missions involving natural disasters. Not even all Coast Guard bases involve sea-going vessels. Some are actually Air Coast Guard bases.

    Anyway I just thought I’d share a few tidbits. My apologies for my sleep deprived typing.

  132. Aaron
    Aaron March 7, 2011 at 9:39 pm |

    Nathan,

    I’m not sure I follow you. Yes the loudest and most politically powerful people who call themselves libertarians (or have libertarian leanings) are the Randian jerks you were talking about. But what follows from that? Certainly not that it is justified to behave as if they speak for all libertarians.

    The most politically powerful Democrats are warmongering jerks who are more than happy to throw aside civil liberties for the sake of political expedience. It does not follow from that that all Democrats are like that, nor would it be reasonable to behave as if all Democrats are like that even if you did so in the knowledge that your belief was an overly broad stereotype.

    So, I fail to see your point – yes Rep. Paul, the CEO of Whole Foods, and Glen Beck are all powerful and famous(ish) and all are Randians and call themselves libertarians. (As an aside I can find no evidence that Justice Thomas calls himself a libertarian, can you point me to why you think he is? I did some basic research (read that as I googled “Clarence Thomas Libertarian”) and all I could find was old interview he did with Reason magazine, where he responded to a question asking if he considered himself a libertarian with, “I don’t think I can. I certainly have some very strong libertarian leanings, yes. I tend to really be partial to Ayn Rand, and to The Fountainhead and Atlas Shrugged. But at this point I’m caught in the position where if I were a true libertarian I wouldn’t be here in government.” ) But so what? We should not judge any group based solely on the behavior of their most famous and politically powerful members.

  133. Aaron
    Aaron March 7, 2011 at 9:41 pm |

    Sorry, I screwed up the coding (again) I’m still figuring out how to do the whole html thing.

  134. Kristen J.'s Husband
    Kristen J.'s Husband March 7, 2011 at 11:41 pm |

    @Aaron,

    Except that a number of countries in Europe have made far more significant strides in ending homelessness, poverty, and health deficits than we have and they’ve done so through stronger gov’t not more limited.

    My corporate clients would adore reduced regulation. Financial institutions hate government intervention because they reduce the opportunities to commit fraud…and I do mean fraud. Limited government views of markets typically fail to consider that markets fail, constantly.

    I completely agree on harms based crimes, but I think capitalism requires constant monitoring to avoid class based oppression. And I came up through a neoclassical grad econ program…so I know this position is radical, but I do think equity has a role to play in economics my former advisers be damned.

  135. Kristen J.
    Kristen J. March 8, 2011 at 12:13 am |

    Blast it…that was me above, not M. Stupid shared computer. Grrrrr.

  136. Aaron
    Aaron March 8, 2011 at 8:39 am |

    Kristen J –

    It depends on what areas of the law you are looking at whether or not those countries in Europe have a stronger or more limited government. Yes, European countries tend to regulate speech more, but they also tend to regulate “illegal” drugs less. They tend to have both stricter and more lax health and safety standards for various products (many of the chemical additives allowed in the USA are not allowed in Europe, but many medical drugs are approved for sale in Europe well before they are in the USA). They tend to have more open boarders to other Europeans and about the same level of hostility to non-European immigrants as Americans and so on. They are substantially less likely to jail someone and have much weaker police forces. (To be honest, with the exception of free speech rights, which is a huge exception, I tend to think that Western Europe is more free on most of the metrics that I care about than the USA)

    As to corporate clients and regulation, I think it depends on the corporate client and the regulation (though note that I’m also concerned about subsides – which most corporations love). I don’t know what industry your corporate clients are in, but I know that my old firm represented several insurance companies and that the firm was paid to help them advocate in favor of “health care reform”. The insurance industry was thrilled with that package of new regulations. I also know that we did some tort defense and our corporate clients were very happy when they were able to point to compliance with government safety regulations to show they were not at fault.

    You see the same thing in other industries. Taco Bell may complain about health code regulations, but they are thrilled when those same regulations are used to ban local taco trucks. Pfizer may complain about FDA regulations making it hard to get a drug to market, but they are happy to use those same regulations to extend the life of their “intellectual property” and protect themselves from much cheaper generic competitors.

    Don’t get me wrong I agree that fairness has a roll to play in economics too. I think that most corporations and wealthy individuals have taken far more than their fair share from the common good that is nature and that we have a right to take the excess and redistribute it (as I hope I said above, I think the key is that we are only allowed to take from nature so long as we leave “enough and as good” for all our fellow humans). (I did graduate work in philosophy under a left-libertarian before switching to law, and my position isn’t even all that radical, at least for that narrow sub-field.) My concern with government regulations is not that I think all regulation is immoral, I don’t, I just think that most regulation severs to unfairly aid large corporations.

  137. nathan
    nathan March 8, 2011 at 12:26 pm |

    I’m not sweeping the in-group diversity of libertarians or any other group under the rug. I’m saying that the power and influence currently lies with those loud, mostly rich folks you’re calling Randians. The whole point I began with was that when most people hear libertarian, that’s who they think of. So, when you started throwing the term around, people here probably had certain ideas – linked to limited government and gung ho capitalism. You’re comments suggest that you have a different approach to libertarianism, but without those comments, I doubt most, myself included, would have believed so.

    I’m talking about perceptions here. I don’t really give a damn if Clarance Thomas identifies as a libertarian; when you look at some of his views, they fit – to some degree – with those being espoused by “the Randians.” So, it took me – someone who pays close attention to economic discussions – hearing all of your statements to see that where you are coming from is quite different. You can imagine how someone who doesn’t pay attention to economics, but hears a conservative soundbyte like “limited government,” might respond.

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