Thursday, June 01, 2006

Phelps Traveling Drool Show to Return to Minnesota

Fred Phelps (Democrat) was so popular the last time he picketed a funeral for a solder in Minnesota, he's set for a return engagement:

Members of a controversial Kansas church plan to protest at the funeral of a Sherburn Marine on Saturday, setting the stage for the first test of a Minnesota state law restricting such demonstrations at military funerals.

Relatives and supporters of preacher Fred Phelps (Democrat -ed.), of Topeka-based Westboro Baptist Church, have scheduled demonstrations at the funeral service for Marine Lance Cpl. Robert Posivio III. In past demonstrations the protestors have carried signs with messages such as "Thank God for Dead Soldiers" and "God Hates Fags."

You may remember that Phelps' (Democrat) hijinks the last time he was here spawned a new law prohibiting picketing within 1,000 feet of a funeral. Some libertarian and civil-liberties-intensive folk (including a certain seafaring blogger named after processed "fish" products) decried the law as reactionary and corrosive of civil liberties.


I didn't write anything on the matter at the time. At least I don't remember writing anything about it at the time. But in any event, this seems like a good time to raise the issue since, as a blogger who is a member of the bar, I am required to post about Law every so often to keep my blogging license. It's been awhile so this may as well be it.

DISCLAIMER: Nothing here should be construed as legal advice or a solicitation to the public to provide legal services. The party of the first part (me) disclaims all warranties to the accuracy of any representation contained herein. In fact what follows is merely "bar exam" law - a basic and unnuanced but helpful summary of the state of the law without citation or any real deep meaningful analysis. Why the hell even pay much attention to it anyway since the party of the first part took a law school course load heavy on commercial / transactional / corporate law, and only managed to get a "B" in Con Law. Parental discretion is advised. Void in Utah.

If you proceed on the notion, as our forebears did, that one of the aims of the government is to "promote the health. safety and welfare" of the citizens, then you can't really criticize the government for doing so in most cases. Sure, there are examples of overreaching. And simply because a law can be made (i.e. not be voided by a higher law) doesn't mean it is ipso facto a prudent law or even the proverbial "right thing to do". See, eg. the smoking ban.

But on the other hand, some laws are the right thing to do - even if they implicate your favorite constitutional amendment (in a non-violative way). The courts (correctly, I think) have recognized that speech and assembly rights are not infinite. You've got the obvious examples of libel and slander. Then there are the other exceptions that place a prior restraint on speech, because of the danger that may result, such as calls for lawless behavior, and the uber-cliched yelling "fire" in a crowded theatre. Then there's the crime of conspiracy, of which communication is an essential element.

And here we have our competing interests: the state has its police power (i.e. keeping public order), and the people have the right to speak out - even unpleasantly. So the courts struck a balance. In public fora, the government is allowed to impose reasonable "time, place and manner" restrictions. These restrictions must be content neutral (that is, the law must apply to both Phelps (Democrat) and his ilk, as well as the counter-protest he (Democrat) would inevitably draw), specific to a legitimate and important government purpose, and provide alternative venues.

As far as I can tell this law does all three. Even though the law was passed in reaction to the Phelps (Democrat) Gang's stunts, if the law applies to all picketers it's constitutional. And it provides an alternate venue 1,000 feet away.

The important government interest? How about preventing a melee? Public order; just like prohibiting calls to riot - and a thousand other laws that nobody even gives a second thought about which can likewise be construed to "limit our freedoms" - are legitimate under the constitution. In an emotionally charged atmosphere like the one found at a funeral of a person who died way too young, violence is bound to happen sooner or later. You just know that one of these days Fred Phelps (Democrat) is going scream in the wrong person's face and wind up in the hospital. That won't happen here.

Which, come to think of it, is the one legitimate reason to oppose this law.

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