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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Wednesday, March 09, 2011

Westboro Baptist Church Fairly Easy Case


The Westboro Baptist Church ruling is in some ways an easy case. It involves a peaceful group targeting a person of public concern (a war hero whose family publicized his death) in a public place with a buffer zone between them and the family involved to promote long held views on public matters. This sort of thing at times involves distasteful speech, upsetting speech and use of people as message enhancers against their will. It also these days includes websites.

We do not have veiled threats in this matter ala "wanted posters" from anti-abortion groups or that like that at times include home address and such information. "Private" people are not free from public display in this day and age. This is seen when more private people are targeted by the media for a particular story, even long after the news event passed:
One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials. Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press.
This is from the majority opinion of a case from 1967 in which the dissent (written by liberal Justice Fortas, joined by CJ Warren) balanced free speech with the privacy rights of a family, crime victims whose lives were made into play fodder (with details altered to boot).

CJ Roberts in his opinion here underlines other cases are different. For instance, the Supreme Court twenty years ago treated a protest that singled out a family's home differently. The protest here was (per the First Amendment) a "peaceful" assembly. It did not block a medical facility or even "invade" the inner happenings of the ceremony in question here. It did not involve "private" information like credit information of a private individual. And so forth. Some who support the case might not support the line drawn in other contexts.

Some justices like Alito and Thomas want to protect privacy to the degree that campaign finance laws for people running for office or those who promote ballot messages are threatened in dubious ways.* The same justices are less willing to protect the Fourth Amendment and other privacy protections in other contexts. Dubious enterprise. Balancing privacy interests in an ever more intrusive world is a complex matter and a proper sense of perspective is important.

[This originally was a response to Dahlia Lithwick's Slate article.  A bit more on how changing media might change First Amendment law can be found here. I added a link to the wanted poster reference, a matter that was among the first things I discussed on the Slate fray after a quick visit during the Bush v. Gore era.]

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* Citizens United upheld disclosure requirements that Thomas alone called called into question. It is possible to imagine such laws overly invasive of people who give small amounts of money (let's say $25), not the sort of thing most people are concerned about. But, Thomas, Alito and others would go much further than that sort of thing.