Sunday, May 07, 2006


The Rev. Fred Phelps, pastor of the Westboro Baptist Church and owner of, has been encouraging his followers to protest the funerals of soldiers killed in Iraq. According to FOX News, the church members stand across the street during burial services holding profane signs ("Thank God For Dead Soldiers") and screaming that the deceased will burn in Hell.

We all agree, these people are vermin. Few among us will shed a tear when Rev. Phelps passes away, and few among us would sob if these protestors were delivered a swift beating by the families of these deceased soldiers. And that's the context of the following hypothetical, which will serve as your final exam in Principles of Free Speech.

You're impaneled on a jury, charged with deciding the fate of a widow who grabbed a cemetery trowel and killed a man who was screaming obscenities during her husband's burial. The prosecution's case is indisputable and includes a video recording. But the widow refused to plead on principle, because she thinks she's right and she's betting a jury won't send her to prison; so the prosecutor was forced to press for the maximum, and now this widow's fate lies in your hands. She is 28, with two young children.

Now, her fate is your decision — whether to take this woman away from her children, whether to lock her away from fresh air and sunlight for 12 years. Do you convict or nullify?

It's easy to say that you'd defend a bigot's right to free speech. It's more difficult to imagine an instance where you would have to. But stand it up against the rule of law, and you've got yourself a fair fight.


At May 12, 2006 8:47 PM, Anonymous Anonymous said...

I'd nullify and let her go free

At May 13, 2006 6:24 PM, Blogger Goodbye. You'll see me again, but you won't know it. said...

You are correct -- this situation is difficult.

What I do not understand is that laws are being passed to forbid protests of this sort at funerals and churches.

Churches and graveyards are private property anyway. It ought to be simple to arrest these people for loitering and disturbing the peace. Of course, it is also simple to position one's self on public property near private property, so I can see how this could be complicated. But why the overly specific laws in a case where a general law ought to suffice? Perhaps we ought to fix our laws addressing various kinds of harassment rather than make an ad-hoc mess of it all.

The moral dilemma you discuss is horrifying. Law and ethics are two separate, though interrelated, topics. Phelps deserves to suffer for what he is doing to others, but that is besides the point. Law exists defend all of us from those times when people fail to mind their own business. Law of itself cannot, however, impart any notion or convention of decency onto people. Ethically horrible things will always be legal. That is unavoidable, unfortunately. We cannot as Americans continue a futile effort to legislate good taste and proper attitudes if we are to keep a functioning legal system.

There still remains the Phelps problem. What are we to do with him? He sues those who retaliate to his tactics and turns a handsome profit by doing so. Again, why is our system of laws so brittle that it allows this man to engage in community-destroying behavior and be rewarded for it?

Moreover, why doesn't anyone retaliate using his tactics? If what he is doing is somehow compatible with law, then why cannot his opposition picket him? Why can emotional damage lawsuits be filed against him? Why can't people simply chose to ignore and humiliate him instead of giving him the satisfaction of being listened to? I know that this takes work. Sometimes, work is both inevitable and profitable. Why not stop complaining and do it?

Yes, I am fully aware that this places a lot of responsibility on the victim. Regardless, moral individuals with legal knowledge and calm dispositions could easily drown him out and deflect him without resorting to creating bad laws. In fact, it has been done on occasion. I agree that something must be done. I merely wonder why must this something be legislation when that track is likely to be largely ineffective and cause inevitable complications?

I ought to return to your thought experiment.

Would I chose to take the life of a woman committing a crime of passion in retaliation to hate speech? Well, she's human. Under such circumstances, most human beings would take some sort of passionate action. Those conditions are unlikely, so she'd be extremely unlikely to re-offend. There is no practical reason to convict. One could make a moral case both for convicting on principle or acquitting on the basis of compassion and human nature.

Unfortunately, there is the fact that murder is and ought to be illegal except in cases of self defense. Never mind the free speech aspect -- we must also ask ourselves if we can condone crimes of passion in unusual circumstances. I would assert that murdering a protester is not a rational response regardless of how offensive the protest is. The legal consequences alone make that response unwise. She would have to be aware of those consequences. Could we not liken this woman's state to temporary insanity induced by grief and emotional trauma?

I would hope that as a juror I could concede her temporary mental aberration induced by unusual circumstances. That would allow me to render a not guilty verdict by reason of temporary insanity.

I will presume by your exercise that an insanity defense is out of the question. Failing an insanity defense, my moral pull to acquit this woman would be illegal. I would not deserve to be a juror if I gave into it. I would have to convict.

Sometimes, law is brutish and morally ambivalent. The point to it is that it gives society a chance to find its conscience and keep it, not provide it one in the first place. Murder is wrong. We can't afford to back down from that simple axiom of human justice. A lack of remorse for a fellow human being is worrying, even in these extreme circumstances.

No, I am not sure that that is the way I would vote if I were placed in that situation. No, I am not sure that further reflection could not change my mind. No, I don't entirely reject the doctrine of Jury Nullification.

There can and must be times when ethical concerns trump law. I do, however, feel that jury nullification is only justified in cases where society at large or the very legal system is threatened by the mandates and strictures of both. In the case of mandated racism, legalized mass genocide, and the like, jury nullification is a good immediate analgesic for the suffering caused by a decadent justice system. I do not see the same situation mirrored here.

The courts were created to resolve problems only when all parties are insufficiently responsible among themselves to act wisely. The legal system cannot and must not resolve all human conflicts. Court should be a means of last resort, not a one-stop shopping center for conflict resolution. Perhaps we need more social institutions to take over some of the functions we inappropriately use the court system for at present. I cannot answer that question with certainty. I do know that bad legislation and sacrificing the sanctity of our laws is dangerous.

As it stands, we cannot afford to view this situation as that of hate speech being sufficient justification for murder. We also cannot afford to allow this debate to even broach the question of free speech. That is not the sole issue in this case anyway.

If no appeal for mitigation on the basis of temporary insanity are made, then I'd have to convict.

I would still feel horrible about it. Poor woman.

At May 16, 2006 11:14 PM, Blogger Stephen said...

Again, why is our system of laws so brittle that it allows this man to engage in community-destroying behavior and be rewarded for it?


My understanding, bearing in mind that I'm not a lawyer (yet), is that a jury may conclude insanity only if that affirmative defense is asserted by the defendant. Every defendant has the right to ignore alternative possibilities of compromise and play for broke; the rationale, obviously, is that by disallowing a jury from landing on middle ground, you can back 12 men and woman into a corner where they must decide between disregarding a faceless law versus imprisoning a flesh-and-blood woman.

The courts were created to resolve problems only when all parties are insufficiently responsible among themselves to act wisely. The legal system cannot and must not resolve all human conflicts. Court should be a means of last resort, not a one-stop shopping center for conflict resolution.

True, and worth repeating. But what does that bode for the notion that we fight Phelps' lawsuits with more lawsuits? The question is, if we can't respond with violence and we oughn't respond by abusing the legal system as he does, how do we stop him?

The answer comes back, "We can't." You and I are taught this is the natural consequence of our First Amendment — that if the white hoods want to march at Skokie, they may. We're taught that it's the price we pay for our free society.

The aim of our Constitution, including its three-fifth compromise, is to elevate the rule of law — to elevate the rule of law, sometimes, above the pursuit of justice. We are to believe this noble. It's not a new question I'm asking, whether there's a limit to that price or whether we can evolve beyond paying it; but as the man said, our liberty must be refreshed from time to time, and the nature of that liberty cannot tolerate the unexamined life.


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