SCOTUS: Westboro protected

[Molyneux]

What the Phelps family did would be illegal in Germany. And yet we still manage to have free speech.

There's a logical contradiction between your first two sentences up there. I would go so far as to say that if what the Phelps family did is illegal in Germany, then Germany cannot have free speech.

Your observation is flawed, care to back it up with an argument? Preferably with your personnal definition of free speech, given that it seems to deviate from the norm.
If one would see any censorship or limitation to free speech as in having no free speech. ie a binary model. Then there are no countries on Tellus today that have free speech. All countries that consider themselves to have it have an inner and outer definition of free speech. With those boundaries being non-binary and multifold.

The obvious example which even the most inbred redneck would know of would be the "cry fire" exemption. Some related examples are libel and threats.
When it comes to the US there is lots of censorship that other countries allow; cursing and sexuality being the obvious ones. So by your inane view vs Germany one could pose the equally inane argument that the US does not have free speech until a court protects my right to curse on national TV.
Stupid isn't it?
Or that the courts should protect my free speech right of showing whatever content I wish regardless the audience's age.

Do I need to continue?

I do absolutely believe that a court should protect your right to curse on national television. Obscenity laws are useless and far too easily used to stifle dissenting opinions. That really is the single point where my opinion most greatly diverges from the state of American law.

I tend to - with some justification, I'd say - take the American concept of "freedom of speech" as the required level a country must possess to give itself the same label. Phelps and co. are rotten, filthy, disgusting troglodytes, but they did not threaten the mourners with harm, they did not call for any illegal acts, and they did not commit libel. They expressed an unpopular opinion, loudly; that's all. If you think that that rises to the level of requiring a specific exemption from freedom of speech, you really are an idiot.

What the fuck do you mean by "inner and outer" definition of free speech, anyway?

Try standing in front of congress and telling people to take guns and kill everyone inside, or to shoot the president. We'll see how free your speech is, then...

Where precisely did the Phelpses say anything like that? Did I say that freedom of speech must be absolute and unlimited? No. I'm holding to the current American understanding of freedom of speech as a good guideline for the minimum level of freedom that a country must possess to be able to refer to itself as having free speech.

[Kanastrous]

Molyneux, will you add some within-the-last-ten-years examples of where obscenity laws have been used to stifle political speech?

[Molyneux]

Molyneux, will you add some within-the-last-ten-years examples of where obscenity laws have been used to stifle political speech?

Why the limitation to ten years, if I might ask?
Here's what I've found after a few minutes of searching the interwebs.

Charges were filed (and later dropped) against the driver of an anti-abortion van in Georgia in 2007: http://www.lifenews.com/2007/12/04/state-2648/
Booksellers and other groups in Boston file suit against anti-obscenity law, on the grounds that it will stifle free speech: http://www.wbur.org/2010/07/13/state-obscenity-law
Taiwan restricts gay literature as "indecent", from 2006: http://www.taipeitimes.com/News/taiwan/ ... 2003294999

How's that work for you, for starters?
I tend to group blasphemy laws under the same header as obscenity laws, personally.

[Kanastrous]

thanks, M!

The ten-year part is admittedly arbitrary but intended to account for shifts in public perception of acceptable behavior. A longer time-span probably would have made more sense.

[LaCroix]

Try standing in front of congress and telling people to take guns and kill everyone inside, or to shoot the president. We'll see how free your speech is, then...

Where precisely did the Phelpses say anything like that? Did I say that freedom of speech must be absolute and unlimited? No. I'm holding to the current American understanding of freedom of speech as a good guideline for the minimum level of freedom that a country must possess to be able to refer to itself as having free speech.

Signs like "Death penalty for f**s!" are on the same level, they demand people they don't like to be killed.

What exactly are these minimum requirements? For me as European, I don't know what the current American understanding is (If such a thing even exists, as people show wide variations in what they consider protected under that clause).

[Kanastrous]

Maybe it's a hair-split, but it's an important one: the sign referenced calls for the law to be changed to make homosexuality a death-penalty offense. Which is distasteful and malignant but not interchangeable with suggesting that individual citizens go out and extra-judicially kill people.

Although it wouldn't surprise me if they wave signs that can't be covered with that little fig leaf, too.

[Molyneux]

Try standing in front of congress and telling people to take guns and kill everyone inside, or to shoot the president. We'll see how free your speech is, then...

Where precisely did the Phelpses say anything like that? Did I say that freedom of speech must be absolute and unlimited? No. I'm holding to the current American understanding of freedom of speech as a good guideline for the minimum level of freedom that a country must possess to be able to refer to itself as having free speech.

Signs like "Death penalty for f**s!" are on the same level, they demand people they don't like to be killed.

What exactly are these minimum requirements? For me as European, I don't know what the current American understanding is (If such a thing even exists, as people show wide variations in what they consider protected under that clause).

As far as my general understanding goes? You're not allowed to (explicitly) tell people to commit illegal acts such as murder or theft, you're not allowed to make slanderous/libelous statements (the standard in the US requires that it be both false AND that you know it to be false AND that you intend it to be damaging, if I remember correctly), and you're not allowed to, as the saying goes, shout fire in a crowded theater - make a false statement for the cause of creating a panic.

I'm probably not entirely accurate on those; anyone with more legal experience is welcome to correct me.

[wautd]

Well on one side crap and the other side damn. Yes a victory for 1st amendment

Great. I just wonder if a group of muslim fundies would get the same treatment if they started the same tactics as these christian fundies.

[Thanas]

What the Phelps family did would be illegal in Germany. And yet we still manage to have free speech.

I hate to say it, but I agree with Ailto on this one.

There's a logical contradiction between your first two sentences up there. I would go so far as to say that if what the Phelps family did is illegal in Germany, then Germany cannot have free speech.

Then you should read up on that point and find somebody who agrees with you on this. Especially considering that this part of the constitution was cleared and approved by the American legal experts of the time before it went into effect.

[Broomstick]

Having a right to free speech does not mean that right is unlimited. Clearly, different nations have differing notions on where to draw the line between acceptable and not acceptable. I wonder if some of this difference is that the US is far more tolerant of anything that is spouted in the name of religion than the Europeans are, or if it some other factor at work?

Frankly, if was anything other than an alleged Christian group do this I'm not convinced the courts would have decided in their favor.

[Molyneux]

Well on one side crap and the other side damn. Yes a victory for 1st amendment

Great. I just wonder if a group of muslim fundies would get the same treatment if they started the same tactics as these christian fundies.

I certainly hope that they would; with this precedent, they've got a damn good bit of weight in their favor if this does come up in the future.

Thanas, again, I'm using the American conception of freedom of speech as a necessary minimum here. If a country - in this case, Germany - does not reach that standard, then I don't think that they can legitimately say that they protect free speech.

Broomstick, I disagree with you, but at this point we've got a piece of precedent that happily applies to funeral protesters regardless of their religion - so if it does come up with a non-Christian group protesting, they can point to this decision.

[Thanas]

Thanas, again, I'm using the American conception of freedom of speech as a necessary minimum here. If a country - in this case, Germany - does not reach that standard, then I don't think that they can legitimately say that they protect free speech.

So what makes your standard any more appropriate?

BTW, as Germany has stricter protection against searches, seizures, observance and police bugging your phone lines, would you also say that the US cannot legitimately say they protect the privacy of your home, that they protect you against searches and seizures and that they protect you against the police interfering in your personal business? Different degrees as protection does not equal no protection.

EDIT: And quite frankly, I am astonished that I even have to argue this.

[Iroscato]

Thanas, again, I'm using the American conception of freedom of speech as a necessary minimum here. If a country - in this case, Germany - does not reach that standard, then I don't think that they can legitimately say that they protect free speech.

Wow...some pretty twisted logic there. That's almost up there with 'X is not true...BECAUSE I SAY SO.
Why does a country have to measure up to the USA with anything before their particular quality can register? Poor choice of wording there Molyneux...

[Serafina]

Thanas, again, I'm using the American conception of freedom of speech as a necessary minimum here. If a country - in this case, Germany - does not reach that standard, then I don't think that they can legitimately say that they protect free speech.

1: You are assuming that your standard is better. More (or rather less regulation) of something is not automatically better. Show why your standard is better
2: You are commiting a black&white fallacy: "Because you don't reach benchmark X, you are totally worthless". By that logic, if you take even one iota of free spech away in the USA, they would no longer have free speech.
3: Also, this smells of circular logic "we have the best standard because it's the best" and "your system does not have free speech because it does not have free speech".

[Molyneux]

Thanas, again, I'm using the American conception of freedom of speech as a necessary minimum here. If a country - in this case, Germany - does not reach that standard, then I don't think that they can legitimately say that they protect free speech.

So what makes your standard any more appropriate?

BTW, as Germany has stricter protection against searches, seizures, observance and police bugging your phone lines, would you also say that the US cannot legitimately say they protect the privacy of your home, that they protect you against searches and seizures and that they protect you against the police interfering in your personal business? Different degrees as protection does not equal no protection.

I would say precisely that, though that's a different matter.

As for why the standard for "free speech" I'm using is better than, say, Germany's standard?
Thanas claimed that if the Phelpses attempted this in Germany, they would be arrested.

If their speech would be illegal on the basis of where they protested - near a funeral - then what exactly exists in German law to prevent protests in other contexts based on location - like, say, outside of a town hall?

If their speech would be illegal on the basis of what they said - that is, because they're saying something unpopular, or that what they're saying is offensive - then what's to prevent the stifling of other speech on the basis that it is similarly unpopular or offensive?

I don't see any viable argument for banning their speech other than the two above; please correct me if I'm wrong.

[Spoonist]

@Molyneux
RE the Phelps, it has been noted before that most of their speech would indeed be 'free' in the EU. (Exempting the kill a fag stuff). However the rule against disturbing the peace would make any picketing illegal. This is why Phelps although they promised to come during the "God hates Sweden" bruha, stayed home.

---

RE the minimum level of free speech

Let's assume that you and I are not the apex of education or understanding of these legal implications. Let's also assume that organizations exist that do specialise in freedom of speech issues and that they should have spent more time actually researching and comparing these issues more than you and I have. I know, it's absurd assumptions right, but let's go ahead and have some fun shall we?

Pretending that those assumptions are true now let's look at what they say regarding your assumption. How about we take three example countries the USA, Germany and Sweden since it was targeted specifically by the Phelps.

http://www.freedomhouse.org/template.cfm?page=5
Freedom of expression, out of 7
USA - place 1 (shared)
Germany - place 1 (shared)
Sweden - place 1 (shared)
Strange that they place them all at the same level isn't it? Or maybe, just maybe it could be that they indeed do recognize different forms of free speech being equal because of the 99.9% they have in common and not the 0.1% where they deviate.

But let's dig into some of the values of free speech. Effects if you will.

Things like a free press which it has been argued is a prerequisite for freedom of expression.
http://en.wikipedia.org/wiki/Press_Freedom_Index#Table
out of 178
USA - place 20 (shared)
Germany - place 17
Sweden - place 1 (shared)
Hmm, that was strange shouldn't the only country in the world who by your definition have free speech protect such a fundamental part of its effects?

What about democracy index, ie what you use your free speech to make actual changes.
http://graphics.eiu.com/PDF/Democracy_I ... 10_web.pdf
out of 167
USA - place 17
Germany - place 14
Sweden - place 4

Well, of course we both know that this is biased sources so now you can go ahead and try to dig up something where freedom of expression is non-existant in the EU because it doesn't work like the US.

[Thanas]

I would say precisely that, though that's a different matter.

So you would say that only the maximum existing freedom is freedom? What if it turns out that a few years later, actually country X had more freedom? Would that automatically make every other freedom non-freedom then?

As for why the standard for "free speech" I'm using is better than, say, Germany's standard?
Thanas claimed that if the Phelpses attempted this in Germany, they would be arrested.

If their speech would be illegal on the basis of where they protested - near a funeral - then what exactly exists in German law to prevent protests in other contexts based on location - like, say, outside of a town hall?

A town hall is a public space. A cemetary or church is a protected public space, where common decency has to be observed. Holding signs like "I am glad your son is dead" is not observing common decency or keeping the peace in this context.

If their speech would be illegal on the basis of what they said - that is, because they're saying something unpopular, or that what they're saying is offensive - then what's to prevent the stifling of other speech on the basis that it is similarly unpopular or offensive?

Quite simple - they are inciting hatred, they insult the personal honor of the dead with no factual basis to go on and they are not observing common decency. In Germany you cannot simply make up stuff. For example - we recently had a minsiter resign because he falsified his doctorate thesis. If I were to march down in Berlin saying "He is a liar" and holding a big huge sign saying "His party is a party of lies" then nothing would stop me, because he is a political person, what I would be saying would be true and the sign would attack a political party, which is not protected.

If however Jack Nobody would die and I would do the same, I would face charges because a) there is no factual basis for my accusation, b) My insults serve no purpose c) I would committ an attack on his memory d) I would also do so in the public sphere and not in the privacy of my home e) I would do so in what is supposed to be an area of peace, quiet, remembrance and mourning (the cemetary/church/funeral procession) and f) said person is not a public person.

PS: The weaseling out of it like saying "God hates faqs" does not insult the fallen because he was not a faq and that "thank god for IEDs" was not in any way connected to the fallen soldier would not wash in any kind of German court because context matters.

[Serafina]

Molyneux, just point out what you could say (which serves an acual, political purpose) in the USA that you could not say in Germany.

We DO have free political speech (as long as it is not inciting violence). What the Westboro church is doing however does not serve any actual political purpose.

[wautd]

Well on one side crap and the other side damn. Yes a victory for 1st amendment

Great. I just wonder if a group of muslim fundies would get the same treatment if they started the same tactics as these christian fundies.

I certainly hope that they would; with this precedent, they've got a damn good bit of weight in their favor if this does come up in the future.

I don't know. Perhaps but for all we know they'll be labelled as terrorists. What with the congressional hearings and all this week (I guess the right need a good ol' witch hunt like they did with those dirty commies in the 50's).

[Molyneux]

One at a time, please.

Serafina: Doesn't Germany restrict symbols of the Nazi Party?

So you would say that only the maximum existing freedom is freedom? What if it turns out that a few years later, actually country X had more freedom? Would that automatically make every other freedom non-freedom then?

No, I'd say that any country below a certain minimum level of freedom cannot be said to be free.
By your logic, any country with any degree of liberty for its people at all could be said to be free. You have to draw a line somewhere.

A town hall is a public space. A cemetary or church is a protected public space, where common decency has to be observed. Holding signs like "I am glad your son is dead" is not observing common decency or keeping the peace in this context.

And outside a cemetery? Outside a church? How far outside?
What the fuck is the legal definition of "common decency"? If it was a really evil fuck who had died, would you be equally blase about stopping people from protesting the funeral?

"Inciting hatred" is a worrisome term - what about someone with a sign calling Mohammed a pedophile? How about someone calling Joe Smith of the Mormons a racist con-man?

I would like to see how the fuck you can justify attacking someone's memory as a chargeable offense. Respect for the dead is one thing, but enshrining it in the law is quite another.

[Serafina]

Serafina: Doesn't Germany restrict symbols of the Nazi Party?

Yes, it does. We also allow you to be a Nazi, and form a party, as long as you keep in line with the constitution.
Now go answer my question - and do some research, your rhetoric "questions" make it quite evident that you have no idea about free speech in Germany.

[Thanas]

One at a time, please.

Serafina: Doesn't Germany restrict symbols of the Nazi Party?

So you would say that only the maximum existing freedom is freedom? What if it turns out that a few years later, actually country X had more freedom? Would that automatically make every other freedom non-freedom then?

No, I'd say that any country below a certain minimum level of freedom cannot be said to be free.
By your logic, any country with any degree of liberty for its people at all could be said to be free. You have to draw a line somewhere.

Sure you have. But that line is not "american standard" or "maximum freedom possible". Besides, where do you draw the line?

And outside a cemetery? Outside a church? How far outside?

Depends on the case.

What the fuck is the legal definition of "common decency"?

The totality of unwritten rules who, in context of the current social and ethic standards, are considered necessary prerequisites for an orderly human co-existence within a defined area.

If it was a really evil fuck who had died, would you be equally blase about stopping people from protesting the funeral?

Was said evil fuck a public person? Where are they protesting? How are they protesting? What specifically are they protesting, what political message are they sending?

"Inciting hatred" is a worrisome term - what about someone with a sign calling Mohammed a pedophile? How about someone calling Joe Smith of the Mormons a racist con-man?

Depend on context.

I would like to see how the fuck you can justify attacking someone's memory as a chargeable offense. Respect for the dead is one thing, but enshrining it in the law is quite another.

How so? Respect for a person and personal honor are a direct variation of human dignity, whose protections just do not stop because one person is dead.

[Molyneux]

Sorry for the slow reply!

Sure you have. But that line is not "american standard" or "maximum freedom possible". Besides, where do you draw the line?

Honestly? It's at least partly arbitrary, but I think it's pretty safe to say that it has to be above the level of, say, blasphemy laws.

And outside a cemetery? Outside a church? How far outside?

Depends on the case.

My point is that if speech is restricted based on area in some cases, that weakens the barriers against restricting it based on other areas.

What the fuck is the legal definition of "common decency"?

The totality of unwritten rules who, in context of the current social and ethic standards, are considered necessary prerequisites for an orderly human co-existence within a defined area.

...and as unwritten rules, I tend to doubt that they can have legal force in any rational government.

If it was a really evil fuck who had died, would you be equally blase about stopping people from protesting the funeral?

Was said evil fuck a public person? Where are they protesting? How are they protesting? What specifically are they protesting, what political message are they sending?

I despise the division of the populace into "public" or "private" people. It's ludicrous to claim that someone is immune to public mockery because they're not a celebrity - or to claim that celebrities give up their right to privacy. I know that I stand apart from the law on that, but I hold that it's a fucking stupid idea.

The content of a political message shouldn't have any bearing, unless that content is itself criminal (say, calls to burn down Muslim-owned businesses). The "where" and "how" can be taken as equivalent to what the Phelps bastards have been doing - I would think that that would be implied, given the thread where we're arguing this.

"Inciting hatred" is a worrisome term - what about someone with a sign calling Mohammed a pedophile? How about someone calling Joe Smith of the Mormons a racist con-man?

Depend on context.

Thank you, Mr. Vague. My point - and I don't think that this is too hard to glean, here - is that using a term like "inciting hatred" is dangerous because it has no fucking well-defined meaning. It's a buzzword for "I don't like that".

I would like to see how the fuck you can justify attacking someone's memory as a chargeable offense. Respect for the dead is one thing, but enshrining it in the law is quite another.

How so? Respect for a person and personal honor are a direct variation of human dignity, whose protections just do not stop because one person is dead.

If you're honestly saying that I can be legally obligated to respect someone, I may just fall over laughing.
The right to mock assholes is well-established by thousands of years of literature; the right to insult equally so. If I can tell someone he's going to go to Hell when he dies to his face, how the hell can you justify restricting my saying so when he's dead?

[Thanas]

Honestly? It's at least partly arbitrary, but I think it's pretty safe to say that it has to be above the level of, say, blasphemy laws.

Sure, which is why the German legal system is in full agreement with you on that one.

My point is that if speech is restricted based on area in some cases, that weakens the barriers against restricting it based on other areas.

That is a non sequitur. By the same token, libel laws weaken the barriers against restricting fre speech.

...and as unwritten rules, I tend to doubt that they can have legal force in any rational government.

So the German Government is irrational now?

I despise the division of the populace into "public" or "private" people. It's ludicrous to claim that someone is immune to public mockery because they're not a celebrity - or to claim that celebrities give up their right to privacy.

Wooooh. Two strawmen in one sentence. Congrats on that one.

The content of a political message shouldn't have any bearing, unless that content is itself criminal (say, calls to burn down Muslim-owned businesses).

Content matters, as well as the tone. For example, I might say that you are a "shit eating fuckhead who cannot formulate a thought process if your life depended on it" or I might say "this reasoning is illogical". Do you see the difference? (And no, neither is illegal).

The "where" and "how" can be taken as equivalent to what the Phelps bastards have been doing - I would think that that would be implied, given the thread where we're arguing this.

Yeah, I am pretty sure that violates the laws of common decency.

Thank you, Mr. Vague. My point - and I don't think that this is too hard to glean, here - is that using a term like "inciting hatred" is dangerous because it has no fucking well-defined meaning. It's a buzzword for "I don't like that".

Sure it has a well defined meaning. You just do not like that it cannot be applied as a simplistic formula in every case. Which roughly translates to "WAAAAH. I MIGHT BE FORCED TO THINK BEFORE I ACT." I am also sure libel laws in the USA do not have such a simplistic formula as you think they have.

If you're honestly saying that I can be legally obligated to respect someone, I may just fall over laughing.

Yes, you are legally obligated to respect your fellow human beings. You do so every morning when you do not start the day by shooting your neighbours for looking at you funny.

The right to mock assholes is well-established by thousands of years of literature; the right to insult equally so. If I can tell someone he's going to go to Hell when he dies to his face, how the hell can you justify restricting my saying so when he's dead?

As I said, it depends on context. Is that so hard for you to get?

[Serafina]

My point is that if speech is restricted based on area in some cases, that weakens the barriers against restricting it based on other areas.

Wow - i guess we better get off that slope before we slip then. Everyone should be able to say anything to anyone at any time without any consequences whatsoever! Libel? Legal! Cheating? Legal! Fraud? Legal! Yay, FREEDOM

...and as unwritten rules, I tend to doubt that they can have legal force in any rational government.

Those laws are enforced by the courts. (German) courts are fully capable of employing common sense and unwritten rules in order to make their decisions. In other words, they are capable of making their decision based on the context.
But no, better not do that - it seems arbitrary to a total layman, so it must be total chaos, right?

Now go and answer my simple question:
What kind of speech (which serves an actual political purpose) is forbidden in Germany, yet allowed in the USA?