By Dan Kennedy • The press, politics, technology, culture and other passions

What freedom of speech means

“I fully support our First Amendment rights. But I would love to put restrictions in it that [protesters] can’t be within 10 miles of a military funeral, not just 300 feet.”

— State Rep. Mitch Gillespie, R-N.C.

It’s really very simple. People who say they support the Constitution “but” do not, in fact, support the Constitution. I don’t know who Gillespie is, and I don’t suppose he matters much. But I thought his remark to columnist Scott Sexton of the Winston-Salem Journal was a perfect illustration of that mentality.

Sexton was writing about a piece of legislation that would ban protests within 300 feet of a military funeral. Yesterday, President Bush signed the bill, called the “Respect for America’s Fallen Heroes Act.” (Here is the official announcement.) Violators risk being fined up to $100,000 or being imprisoned for as much as a year.

As with most assaults on free speech, this one would appear, on the face of it, to be an exception that everyone can live with. After all, it is aimed at the hatemongering Westboro Baptist Church, whose members — essentially Fred Phelps and his extended family — demonstrate at military funerals to espouse their demented belief that God is killing U.S. soldiers in Iraq because America has gone soft on homosexuality.

The pain caused by Phelps and his unmerry band is real. Listen to this NPR story from yesterday. You can’t help but be moved.

But, as we all know, you don’t need the First Amendment to protect the right to proclaim the goodness of motherhood and apple pie. You need it to protect vile, hateful statements that almost no one wants to listen to.

The legal scholar Vincent Blasi tells NPR that it’s unlikely the new law will survive a court challenge. So here we go again. Congress passes, and the president signs, a popular law aimed at stamping out offensive speech. The ACLU goes to court. The courts side with the Constitution. And the ACLU, along with “unelected judges,” are cast as enemies of America. Just this morning, I received a piece of false ACLU-bashing on a private list I subscribe to. The shame is that we’ve been so conditioned by this stuff that we actually believe it.

If those unfortunate American soldiers are dying in Iraq for anything noble, I’d like to think it’s to protect our freedoms. When you think about it, it’s almost profane that politicians would choose to honor their sacrifice by limiting our freedom of expression. But it’s not surprising, is it?

Heroes and zeroes: The bill passed the House on May 9 by a 408-3 vote. Among the all-Democratic Massachusetts delegation, only Barney Frank voted “no.” Marty Meehan did not vote. The rest all voted in favor of the bill and against freedom of speech: Ed Markey, Jim McGovern, John Tierney, John Olver, Mike Capuano and Bill Delahunt.

The bill passed the Senate on May 24 by unanimous consent.

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  1. Anonymous

    Telling protesters they have to stay the length of a football field away from a military funeral is an “assault on free speech?” Gimme a break. Let me guess – it’s a slippery slope, right? Next thing you know they’ll legalize the shooting protesters outside of military bases.

  2. metallicaMobes

    No, this is wrong. You can’t legislate against the free expression of ideas.Not that I defend anything that idiot Fred Phelps (may he rot in hell) says, but gimme a break. It’s worse than the “free speech zones” that they had at the 2004 DNC.Political speech cannot be stifled out. It is a slippery slope because the next legislature can take it a step further, saying that protests in general that have “hate-speech” on signs, or that are “intolerant” will be banned from public property.Remember the Philly-11 (evangelicals, not Phelpites) who were demonstrating against the queers’ rally in the park? They were almost put in jail on FELONY charges for expressing their disagreement with homosexuality.They were far from the Phelps-caliber; they were normal right-wingers who are against the normalization and in-your-face flamboyance of displaying your sexual orientation in public. And THAT is the next step on the slippery slope, and THAT is why Fred Phelps should be able to say whatever he wants to say on public property. THAT is why flag-burning should not be illegal… it kills me to say that, too. I wince inside making this argument, but it is indeed a slippery slope, anon.

  3. Ernie Boch III

    Abortion zones are an exception?

  4. Man Who's a free speech fan

    That’s already (arguably) legal. Has been for years. Haven’t you ever read those signs outside the military bases? They don’t screw around…while the capacity is almost never used, the right has been fully reserved.If a guard at a booth thinks a truck barrelling towards the gate isn’t going to stop, and maybe that truck is big enough to hold a lot of explosives…well, that guard’s not going to worry about whether that truck is technically on base property or not. Doesn’t matter if the base is in Baghdad, Iraq or Peoria, Illinois.And they have arrested protesters outside of military bases before. I vaguely remember hearing about lots of arrests outside the US Navy Sub Base in Groton, CT during the First Gulf War (I was a sophomore in high school down there at the time). Supposedly some of those protests got mighty tense with MP’s 50ft away carrying some serious hardware…but I don’t remember hearing of any shootings.FWIW, though, this “Respect for America’s Fallen Heroes Act” makes me ill. I’m already writing to my congressman (Markey) to express my displeasure with him about it. No wonder so many of my friends see so little difference between the Democrats and Republicans. At least the Republicans are honest about trying to take my rights away….but I expected better from the Democrats.

  5. Aaron

    At the risk of going off on a huge tangent here…I don’t really agree with the no-protester zone outside anti-abortion clinics either. But I can appreciate a particular nuance that makes the “clinic zones” fairly unique: the public safety issue. Especially in Massachusetts (John Salvi, anyone?).The relentless protesting outside your average abortion clinic frequently borders on, or crosses over to, violent acts. This is not “labelling”, it’s a cold statistic. Ergo, there is a public safety issue. So either there must be guards of some kind, presumably police…which puts a huge strain on public resources…or you separate out the two arguing groups far enough that the risk of physical violence is mitigated somewhat.Mind you, if anti-abortion protesting weren’t so prevasive across many clinics and constant at so many of them…I don’t think the physical separation argument would hold water; then the strain on public resources is reduced to the point where police/guards are feasible and far more appropriate.I suspect there’s a gaping hole in my logic here…probably another type of protesting that I find less offensive. If so I’d like to hear it, though…this is an interesting dilemma and I’d be open to new ideas.For the record, I am anti-abortion but I am also pro-choice. Basically I feel that if you’re not in favor of abortion, don’t have one.

  6. Dan Kennedy

    Ernie — No, I would not make an exception for abortion-clinic protests, and I have written about that in the past. You don’t need to outlaw speech in order to accomplish constitutionally permissible goals such as protecting public safety. And not all speech is constitutionally protected, either. “Fighting words” — that is, speech that would cause reasonable people to become violent — are not protected by the First Amendment. That’s what’s so ridiculous about the Phelps law: If his hate group’s speech crosses the line into fighting words (and, arguably, it does), then it’s already illegal. You don’t need a special law.

  7. Lis Riba

    Of course, folks should keep in mind that Phelps has been nastily protesting the funerals of gays and AIDS victims for decades, and no politicians proposed legislation against the practice.It’s only when they started verbally attacking straight military members, then outrage and a rush-to-legislation. And the law is carefully crafted to only cover military cemetaries, so Phelps and his ilk will remain free to harass less (politically)desirable targets.Regardless of the merits or demerits of such an imposition on free speech, the hypocrisy and disparity says something rather sad about whose feelings matter in this country…[And I’d like to read more about Barney Frank’s reasons for rejecting it.]

  8. Anonymous

    I think Lis has hit it right on the head: this is called the Respect for America’s Fallen Heroes Act for a reason. How many politicians want a potential opponent bashing them over and over by saying, “He/she wouldn’t even vote for the Respect for America’s Fallen Heros Act”? Doesn’t matter what the bill is, the name itself almost guarantees passage. I hear the next bill with oil company subsidies is going to be called the “Saving Kitties from Burning Buildings Act”.

  9. Anonymous

    Dan’s absolutely right. In fact, the slippery slope is the opposite of what metallicaMobes portrays. In the current political climate, we’re more likely to say the banning of “normalization and in-your-face flamboyance of displaying your sexual orientation in public” than we are to see the banning of protesting it. Maybe not in MA, but one can easily see it happening in say, Virginia.BTW, a quick Google shows the Philadelphia case is a great example of Dan’s “fighting words” argument. They weren’t arrested for “peaceful protests,” they were arrested for inciting to riot, failing to disperse, and reckless endangerment. According to all versions of the incident I can find, they were blocking people from attending and screaming slurs at attendees using bullhoens.

  10. Don

    A funeral is a solemn FAMILY affair. If the family chooses to invite others, only they should attend. Uninvited persons should stay away!

  11. metallicaMobes

    The Philly-11 incident screams collaboration between the Chief Inspector of the Police and the “Pink Angels” of “OutFest” who planned ahead of time how to deny the protestors access to the event-conveniently, Chief Inspector Tiano is also the “liason to the gay and lesbian community” in Philly PD. But that’s beside the point! How interesting it is to see the leftists here scrambling to portray this as another right-wing plot to hold down free speech and to snub AIDS victims and outlaw gayFests- NO! This IS a purely political (and shameful) move, but look no further than the 99.99999% of liberal democrats who also voted for this act and you’ll see that this bill transcends the political spectrum. -and by the way, naming this act the “Respect for Fallen Heroes” Act is almost as laughable as the “Fairness Doctrine” label

  12. Steve

    No means NO!”Congress shall make no law […] abridging the freedom of speech”What part of NO don’t they understand?Disgusting.

  13. Lisa

    This week also brings the depressing news that the Supreme Court has voted to curb the freedom of speech of government employees. As anyone who’s been dooced can tell you, freedom of speech is for those who are independently wealthy. [Insert grumpy noise here].

  14. Lisa

    Or people like me, whose kids aren’t old enough to fire them yet!

  15. Anonymous

    I think our Union and Freedoms are strong enough to allow for a small zone of quiet around a funeral.I don’t think our country will be headed downhill fast is we allow someone to be burried in peace.

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