Notes from Evil Bender

People are seriously afraid of speech that offends them. It makes them uncomfortable, and with good reason. Most such speech is targeted to offend, much as the Fred Phelps crew picketing funerals. The problem is that banning offensive speech creates more of a problem than it solves.

But try telling that to Stop the ACLU. They write:

If you haven’t heard about the Westboro Baptist Church Hate Cult, Dread Pundit Pluto puts some can fill you in. In short, they believe that God is punishing America for our arrogance and our tolerance of gays. They feel that the best place to express their hate is picketing the funerals of veterans killed in the War on Terror with signs saying such things as “God Hates Fags”, and “Thank God For Dead Soldiers.” Of course this kind of disrespect is bound to anger quite a few folks. In reaction some states are creating laws to limit these protests with buffer zones. While most reasonable folks can see the common sense in this, the American Civil Liberties Union are calling it Unconstitutional.

Here's the problem: it is unconstitutional to ban speech in this way. The courts have ruled that even a blanket 300 foot ban is too great, and have defended such bans only to places where one should be able to go without harrassment: i.e. the home. It's perfectly reasonable to assume that a funeral can be protected in the same way as the home is, but these laws will never stand a constitutional challenge, and this anti-ACLU ranting probably has its root in the fact that these bans will undoubtedly be overturned.

What those Phelps idiots do at funerals is disgusting, no question. But no one was rushing to pass laws against them when they were picketing Matthew Shepard's funeral, or the funerals of other gays and lesbians. But now they're picking on soldiers and suddenly we need a ban. But the precents all agree: a blanket, 1,000 foot ban of this kind won't stand a constitutional test.

The issues are complicated, and I'm no legal expert. But I do know what the courts have consitently ruled in the past. Furthermore, I know that anytime you hear someone being challenged as somehow immoral just because they believe that a law might be unconstitutional, know that the person cares more about upholding their own beliefs than they do upholding constitutional rights. Whenever someone says "you shouldn't challenge that law" they generally mean "I'm afraid you might be right."

What the Phelps people do is disgusting, immoral, and childish. It is the worst kind of speech, but the ACLU is right: the solution for disgusting speech is more speech, not less. So long as the Phelps aren't disrupting others right to peacably assemble, making threats or otherwise being disruptive (as defined within court precedent), the courts will continue to protect their bigoted speech, and they'll be right to do so. We don't silence every scumbag out there, because someone thinks we're that scumbag and is coming after us.