To: Kathryn Pieplow
From: Leslie Fischman
Date: March 7, 2007
Re: Protestor v. Square State
Client: Square State
________________________________________________________________________
Facts:
In the Protestor v. Square state (funeral protest) trial, Square state won and seeks representation for their upcoming appeals regarding funeral protests and the right to free speech. The appeals is subsequently in response to a funeral protests that occurred on June 12, 2006. Protestors from the Westboro Baptist Church (WBC) attended Army Sergents funeral in Fort Logan National cemetery in Denver, Colorado, carrying signs that read “God Blew Up the Troops” and “FAG Troops.”
Despite mourners pleas with the group to withhold protests during the funeral proceedings, the group went on an protested anyways. Family members and mourners were surprised to see Westboro Baptist Church [WBC] affiliates present at the funeral of the Sgt. Soldier.
In response to the mourners’ pleas, the Patriot Guard Riders attended the funeral, in an effort to protect the mourners from the Westboro Baptist Church [WBC] protestors. Upon their arrival, family members were greeted by WBC church members singing the Marine Corps anthem with WBC lyrics. In addition WBC members in protest, blew their nose in a flag and stomped on it, to make a statement.
While other protestors barricaded family members from leaving the funeral, standing between them and their cars while carrying signs that read “God Blew Up the Troops,” “FAG Troops,” and “Thank God for Dead Soldiers.” Soon afterwards, one of the protestors engaged in a “shoving match with PGR member Moe Sycle.”
Protestor and Sycle were both charged with violation of the Square State’s “Rest in Peace Act.” In the trial the jury found the Protestor guilty, however, did not convict Sycle. Protestor in response to his conviction is filing an appeal, “alleging that the Rest in Peace Act (and . . . Respect for America’s Fallen Heroes Act, and the Military Funeral Disruptions Bill) are unconstitutional violations of his right to free speech and uneven applications of the law” (fact pattern).
Discussion/Analysis:
I. Do the bills and laws associated to this case pose a threat to First Amendment rights?
In “Respect for America’s Fallen Heroes Act,” WBC protestors may find it against their constitutional rights to be prohibited from congregating on what is considered to be public grounds. At the second session of the passing of the bill issued, section two of that bill lists “Prohibition on certain demonstrations at cemeteries under the control of the national cemetery administration and at Arlington National Cemetery,” (H.R. 5037, 2006) which is a public cemetery.
In a case similar to this one, and Indiana Republican, Steve Buyer, signed a “Congressional bill to regulate demonstrations at federal cemeteries” (Alvarez, 14 4th paragraph). In addition, nine other states “including Oklahoma, Wisconsin, and Indiana” have passed laws to restrict demonstrations such as these at a funeral or burial (Alvarez, 14, 5th paragraph). Lawmakers, acknowledge protestors rights to freedom of speech, however claim that demonstrations such as these violate family members rights to bury a loved one in peace (Alvarez, 14, 4th paragraph). Although these laws do not “prevent protestors from speaking out” (Alvarez, 14, 8th paragraph) they can at least prevent protestors from carrying signs with hateful messages or “any visual image that conveys fighting words within several hundred feet or during the hours of the funeral” (Alvarez, 14, 7th paragraph).
In the case of McQueary v. Stumbo (2006) words such as “You turn this nation into fags, our soldiers are coming home in body bags” and signs containing messages such as “God Hates Fags” was questionably part of one’s constitutional right “to peaceably protest in public places” (McDonough, 2006). According to Phelps-Roper, WBC representative, claims that “the first and foremost thing about those laws is that they, in every respect, violate the Constitution of the United States” (McDonough, 2006). Despite the insensitivity of protestors to those mourning the deceased soldiers, court’s believe that “it is always in the public interest to prevent the violation of a party’s constitutional rights” (Offensive speech, signs allowed at Kentucky funerals, 2006).
II. Do the rights of freedom of speech include one’s right to use “fighting words” or hate speech?
According to The American Civil Liberties Union (ACLU), it is “the essence of the First Amendment [to] . . . tolerate the messages we disagree with” (Fitzgerald and Mackey, 2006, 10001). ACLU’s senior legal counsel, Adam D. Shwartz, is in favor of protecting WBC’s First Amendment right to free speech, and promotes the civil liberties issued to them in the Bill of Rights.
According to Schwartz of the American Civil Liberties Union and the senior legal counsel, refers to the messages that WBC protestors send as “vicious nonsense” that has unfortunately been protected by the First Amendment. He then goes on to state to his dismay that “the essence of the First Amendment is that we tolerate the messages we disagree with” despite whether or not they may agree with the laws intended purpose to promote our civil liberties.
This is not the first time that hate speech has become an issue regarding ones First Amendment rights to free speech. However under the context of hateful speech, anti-gay messages such as “FAG Troops” and “God Blew Up the Troops” seems far from the intentions of lawmakers, issuing citizens their freedom of speech. In fact “fighting words” have cause controversy in the past in legislation. Particularly in one case Chaplinsky v. California, 315 U.S. 568 (1942), in which fighting words such as these were determined to be “by their very utterance inflict injury or tend to incite an immediate breach of the peace” (Fitzgerald, p.10001, 5/19/06).
In this case of Cantwell v. Connecticut (Fitzgerald and Mackey, 2006, 10001), justices reserved the rights of the “state [which] may not unduly suppress free communication of views, religious or other, under guise of conserving desirable conditions” (Fitzgerald and Mackey, 2006, 10001), which Schwartz, the senior legal counsel of ACLU did “not believe courts would see the Westboro signs as fighting words” (Fitzgerald and Mackey, 2006, 10001). According to the justices in this case, when fighting words are used as “an insult aimed directly at another person” are not what some justices say is apart of “the principle of freedom of speech [which does not] sanction incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect” (Fitzgerald and Mackey, 2006, 10001).
Some problems associated with the passing of such a law, question whether the law is “content neutral” and whether or not “every local law enforcement official could interpret the law differently, and protestors could not be reasonably certain when exactly they were violating the law” (Harrison, 2006). Another issue that has also been addressed is whether or not the “new law leaves open effective alternative means of communication” which according to Brett Shirk, the executive director of the ACLU considers problematic because “the law . . . provides no alternative means of communication at all . . . basically saying you can’t convey a message, period” (Harrison, 2006), which is in violation of the protestors First Amendment Right to freedom of speech.
III. Does putting Buffer Zones in Public Spaces violate protestors’ civil liberties?
The “Right to Rest in Peace Act” addresses the rights of family members and friends of the deceased and those attending funerals. By issuing them “the rights to attend without being subjected to unwanted offensive speech, demonstrations, visual displays, interference, or other actions that contribute to increased and unnecessary additional emotional distress” (Right to Rest in Peace Act, sec. 1b, 2006).
In Missouri, the presence of protestors sparked a similar law against funeral protests. Fred Phelps, “the furiously ant-gay minister whose picketing at military funerals sparked” (Harrison, 2006) the passing of this new law, has been prohibited to picket and or engage in any other protest activities “in front or about any church, cemetery or funeral home from an hour before a funeral until an hour afterward” (Harrison, 2006).
The “Respect for America’s Fallen Heroes Act” protects the family members rights to a peaceful burial of their beloveds. This act would “prohibit certain demonstrations at cemeteries,” specifically “during the period beginning 60 minutes before and ending 60 minutes after a funeral, memorial service, or ceremony held” (H.R. 5037, 2006).
In regards to buffer zones, “the longest buffer zone ever approved by the Supreme Court in these cases was 36 feet,” (Harrison, 2006) thus questioning the likelihood of a “300-foot buffer zone” (Harrison, 2006) being enacted. Creating such a big buffer zone “raises issues because it will almost always include public streets or sidewalks, which are ‘the quintessential public forum’ . . . which they are usually very reluctant to prohibit it entirely” says McAllister, and advisor for the “Kansas legislature in drafting that state’s funeral protest bill” (Harrison, 2006).
However later, in the case of McQueary v. Stumbo (2006), an injunction and a motion was filed to keep “Kentucky officials from enforcing . . . [the] new law that prohibits protests” (Offensive Speech at Kentucky Funerals, 2006). It reserves “individuals . . . First Amendment right to speak on a public street and on private property about a public issue – even where the speech is distasteful, discomforting or ignorant” (Offensive Speech, signs allowed at Kentucky funerals, 2006). Another argument made by McQueary, challenges laws which he describes as “too broadly defined” and “unconstitutional . . . [and] do not leave open alternative channels for communication” (Offensive Speech, signs allowed at Kentucky funerals, 2006).
Recommendation:
The key issues at hand are the following bills that have been passed, including “The Rest in Peace Act” and the “Respect for America’s Fallen Heroes Act,” as well as the First Amendment rights. The Square states strongest argument lies within the tenents of the “Rest in Peace Act” and the “Respect for America’s Fallen Heroes Act,” which acknowlege their right to peaceful burial and ensures the right to mourn in peace. Whereas the right to free speech is arguably the WBC’s strongest case against threats to their constitutional rights, and right to protest. WBC opposes violations to their First Amendment rights and will most likely contest any threats to violate their constitutional rights.
Although there are limits and public policies on hate speech, one of the biggest questions to be answered in court will be the kind of limits and provisions put on what the court defines as “fighting words.” Specifically whether or not the cruel words spoken by protestors and those written on the signs they carry can be categorized as hate speech, which is prohibited by law. There is an apparent gray area between what fighting words can be classified as hate speech. According to WBC protestors, they have the right to freely speak their minds and voice their beliefs in a public forum. However Square State and family members mourning the deceased, in comparison, may argue that it violates their right to mourn in peace when such insensitive and cruel words are being spoken about their dead loved ones.
One of the most questionable laws that courts and the Square State may try to pass are laws and legislation regarding buffer zones. WBC protestors may argue in response to such laws, that it violates their right to peaceably protest in public spaces. However WBC will have to fight much resistence to change laws enacted by the “Right to Rest in Peace Act” which preserves the mourners’ right “to be assured that the funeral is not disrupted by violent, abusive, indescent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct” (H.B. 06-1382, 2006) by protestors.
From: Leslie Fischman
Date: March 7, 2007
Re: Protestor v. Square State
Client: Square State
________________________________________________________________________
Facts:
In the Protestor v. Square state (funeral protest) trial, Square state won and seeks representation for their upcoming appeals regarding funeral protests and the right to free speech. The appeals is subsequently in response to a funeral protests that occurred on June 12, 2006. Protestors from the Westboro Baptist Church (WBC) attended Army Sergents funeral in Fort Logan National cemetery in Denver, Colorado, carrying signs that read “God Blew Up the Troops” and “FAG Troops.”
Despite mourners pleas with the group to withhold protests during the funeral proceedings, the group went on an protested anyways. Family members and mourners were surprised to see Westboro Baptist Church [WBC] affiliates present at the funeral of the Sgt. Soldier.
In response to the mourners’ pleas, the Patriot Guard Riders attended the funeral, in an effort to protect the mourners from the Westboro Baptist Church [WBC] protestors. Upon their arrival, family members were greeted by WBC church members singing the Marine Corps anthem with WBC lyrics. In addition WBC members in protest, blew their nose in a flag and stomped on it, to make a statement.
While other protestors barricaded family members from leaving the funeral, standing between them and their cars while carrying signs that read “God Blew Up the Troops,” “FAG Troops,” and “Thank God for Dead Soldiers.” Soon afterwards, one of the protestors engaged in a “shoving match with PGR member Moe Sycle.”
Protestor and Sycle were both charged with violation of the Square State’s “Rest in Peace Act.” In the trial the jury found the Protestor guilty, however, did not convict Sycle. Protestor in response to his conviction is filing an appeal, “alleging that the Rest in Peace Act (and . . . Respect for America’s Fallen Heroes Act, and the Military Funeral Disruptions Bill) are unconstitutional violations of his right to free speech and uneven applications of the law” (fact pattern).
Discussion/Analysis:
I. Do the bills and laws associated to this case pose a threat to First Amendment rights?
In “Respect for America’s Fallen Heroes Act,” WBC protestors may find it against their constitutional rights to be prohibited from congregating on what is considered to be public grounds. At the second session of the passing of the bill issued, section two of that bill lists “Prohibition on certain demonstrations at cemeteries under the control of the national cemetery administration and at Arlington National Cemetery,” (H.R. 5037, 2006) which is a public cemetery.
In a case similar to this one, and Indiana Republican, Steve Buyer, signed a “Congressional bill to regulate demonstrations at federal cemeteries” (Alvarez, 14 4th paragraph). In addition, nine other states “including Oklahoma, Wisconsin, and Indiana” have passed laws to restrict demonstrations such as these at a funeral or burial (Alvarez, 14, 5th paragraph). Lawmakers, acknowledge protestors rights to freedom of speech, however claim that demonstrations such as these violate family members rights to bury a loved one in peace (Alvarez, 14, 4th paragraph). Although these laws do not “prevent protestors from speaking out” (Alvarez, 14, 8th paragraph) they can at least prevent protestors from carrying signs with hateful messages or “any visual image that conveys fighting words within several hundred feet or during the hours of the funeral” (Alvarez, 14, 7th paragraph).
In the case of McQueary v. Stumbo (2006) words such as “You turn this nation into fags, our soldiers are coming home in body bags” and signs containing messages such as “God Hates Fags” was questionably part of one’s constitutional right “to peaceably protest in public places” (McDonough, 2006). According to Phelps-Roper, WBC representative, claims that “the first and foremost thing about those laws is that they, in every respect, violate the Constitution of the United States” (McDonough, 2006). Despite the insensitivity of protestors to those mourning the deceased soldiers, court’s believe that “it is always in the public interest to prevent the violation of a party’s constitutional rights” (Offensive speech, signs allowed at Kentucky funerals, 2006).
II. Do the rights of freedom of speech include one’s right to use “fighting words” or hate speech?
According to The American Civil Liberties Union (ACLU), it is “the essence of the First Amendment [to] . . . tolerate the messages we disagree with” (Fitzgerald and Mackey, 2006, 10001). ACLU’s senior legal counsel, Adam D. Shwartz, is in favor of protecting WBC’s First Amendment right to free speech, and promotes the civil liberties issued to them in the Bill of Rights.
According to Schwartz of the American Civil Liberties Union and the senior legal counsel, refers to the messages that WBC protestors send as “vicious nonsense” that has unfortunately been protected by the First Amendment. He then goes on to state to his dismay that “the essence of the First Amendment is that we tolerate the messages we disagree with” despite whether or not they may agree with the laws intended purpose to promote our civil liberties.
This is not the first time that hate speech has become an issue regarding ones First Amendment rights to free speech. However under the context of hateful speech, anti-gay messages such as “FAG Troops” and “God Blew Up the Troops” seems far from the intentions of lawmakers, issuing citizens their freedom of speech. In fact “fighting words” have cause controversy in the past in legislation. Particularly in one case Chaplinsky v. California, 315 U.S. 568 (1942), in which fighting words such as these were determined to be “by their very utterance inflict injury or tend to incite an immediate breach of the peace” (Fitzgerald, p.10001, 5/19/06).
In this case of Cantwell v. Connecticut (Fitzgerald and Mackey, 2006, 10001), justices reserved the rights of the “state [which] may not unduly suppress free communication of views, religious or other, under guise of conserving desirable conditions” (Fitzgerald and Mackey, 2006, 10001), which Schwartz, the senior legal counsel of ACLU did “not believe courts would see the Westboro signs as fighting words” (Fitzgerald and Mackey, 2006, 10001). According to the justices in this case, when fighting words are used as “an insult aimed directly at another person” are not what some justices say is apart of “the principle of freedom of speech [which does not] sanction incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect” (Fitzgerald and Mackey, 2006, 10001).
Some problems associated with the passing of such a law, question whether the law is “content neutral” and whether or not “every local law enforcement official could interpret the law differently, and protestors could not be reasonably certain when exactly they were violating the law” (Harrison, 2006). Another issue that has also been addressed is whether or not the “new law leaves open effective alternative means of communication” which according to Brett Shirk, the executive director of the ACLU considers problematic because “the law . . . provides no alternative means of communication at all . . . basically saying you can’t convey a message, period” (Harrison, 2006), which is in violation of the protestors First Amendment Right to freedom of speech.
III. Does putting Buffer Zones in Public Spaces violate protestors’ civil liberties?
The “Right to Rest in Peace Act” addresses the rights of family members and friends of the deceased and those attending funerals. By issuing them “the rights to attend without being subjected to unwanted offensive speech, demonstrations, visual displays, interference, or other actions that contribute to increased and unnecessary additional emotional distress” (Right to Rest in Peace Act, sec. 1b, 2006).
In Missouri, the presence of protestors sparked a similar law against funeral protests. Fred Phelps, “the furiously ant-gay minister whose picketing at military funerals sparked” (Harrison, 2006) the passing of this new law, has been prohibited to picket and or engage in any other protest activities “in front or about any church, cemetery or funeral home from an hour before a funeral until an hour afterward” (Harrison, 2006).
The “Respect for America’s Fallen Heroes Act” protects the family members rights to a peaceful burial of their beloveds. This act would “prohibit certain demonstrations at cemeteries,” specifically “during the period beginning 60 minutes before and ending 60 minutes after a funeral, memorial service, or ceremony held” (H.R. 5037, 2006).
In regards to buffer zones, “the longest buffer zone ever approved by the Supreme Court in these cases was 36 feet,” (Harrison, 2006) thus questioning the likelihood of a “300-foot buffer zone” (Harrison, 2006) being enacted. Creating such a big buffer zone “raises issues because it will almost always include public streets or sidewalks, which are ‘the quintessential public forum’ . . . which they are usually very reluctant to prohibit it entirely” says McAllister, and advisor for the “Kansas legislature in drafting that state’s funeral protest bill” (Harrison, 2006).
However later, in the case of McQueary v. Stumbo (2006), an injunction and a motion was filed to keep “Kentucky officials from enforcing . . . [the] new law that prohibits protests” (Offensive Speech at Kentucky Funerals, 2006). It reserves “individuals . . . First Amendment right to speak on a public street and on private property about a public issue – even where the speech is distasteful, discomforting or ignorant” (Offensive Speech, signs allowed at Kentucky funerals, 2006). Another argument made by McQueary, challenges laws which he describes as “too broadly defined” and “unconstitutional . . . [and] do not leave open alternative channels for communication” (Offensive Speech, signs allowed at Kentucky funerals, 2006).
Recommendation:
The key issues at hand are the following bills that have been passed, including “The Rest in Peace Act” and the “Respect for America’s Fallen Heroes Act,” as well as the First Amendment rights. The Square states strongest argument lies within the tenents of the “Rest in Peace Act” and the “Respect for America’s Fallen Heroes Act,” which acknowlege their right to peaceful burial and ensures the right to mourn in peace. Whereas the right to free speech is arguably the WBC’s strongest case against threats to their constitutional rights, and right to protest. WBC opposes violations to their First Amendment rights and will most likely contest any threats to violate their constitutional rights.
Although there are limits and public policies on hate speech, one of the biggest questions to be answered in court will be the kind of limits and provisions put on what the court defines as “fighting words.” Specifically whether or not the cruel words spoken by protestors and those written on the signs they carry can be categorized as hate speech, which is prohibited by law. There is an apparent gray area between what fighting words can be classified as hate speech. According to WBC protestors, they have the right to freely speak their minds and voice their beliefs in a public forum. However Square State and family members mourning the deceased, in comparison, may argue that it violates their right to mourn in peace when such insensitive and cruel words are being spoken about their dead loved ones.
One of the most questionable laws that courts and the Square State may try to pass are laws and legislation regarding buffer zones. WBC protestors may argue in response to such laws, that it violates their right to peaceably protest in public spaces. However WBC will have to fight much resistence to change laws enacted by the “Right to Rest in Peace Act” which preserves the mourners’ right “to be assured that the funeral is not disrupted by violent, abusive, indescent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct” (H.B. 06-1382, 2006) by protestors.