SPEECH vs. EMOTIONAL INJURY--Supreme Court: Right on the Funeral Protests, Part 4

[Back! Semester's end, exams, grading, tedious admin chores, time with the youngest son graduating from college and preparing for graduate school, etc., etc., etc. And yes, some R & R, including a trip to Kentucky for a visit to Churchill Downs and for some local bourbon. 

Now it's back  to this blog. So much to discuss: New York's Marriage Equality (If we can get it done here, we can get it done anywhere ! Bravo to my home state, striking a blow for civil rights and against nonsense.), the Supreme Court's latest decisions, the year in review, the Justices' records, ditto for the NY Court of Appeals and its Judges, and so much more. But 1st, one last consideration of free speech related to that funeral protest case.]

Consider these 2 statements:

1) Your mother is a whore and she's going straight to hell.

2) Your mother is a whore and she's going straight to hell.

Yes, the words are the same. But let's give them different contexts.

For the 1st, the speaker is at a private neighborhood party, saying this loud enough so others can hear, angrily addressing the mother's son whom he dislikes for personal reasons. The speaker actually believes what he is saying, but he is mistakenly relying on a vicious, false rumor.

UNPROTECTED "SPEECH"--Supreme Court: Right on the Funeral Protests, Part 3

[Been swamped with other matters since the last post. Among those of possible interest to the readers of New York Court Watcher is the Center for Judicial Process. The now reorganized and reactivated Center, accessible through the link on this blog or directly at http://www.judicialprocessblog.com/, is a forum for research and the publication of studies on courts, judges, judicial decision-making, judicial politics and selection, and all other aspects of the judicial process. Check it out!]

In the last post, we listed several examples of free speech that the Supreme Court has decided are constitutionally protected. Let's reconsider those cases by altering them a bit. The alteration will change the speech from protected to unprotected.

In fact, none of those cases dealt with actual "speech." Instead, they involved activities. But they were expressive activities. Those activities were deemed sufficiently close to actual speech to be included within the 1st Amendment's protection. In short, these activities were considered to be functional equivalents of speech. They were engaged in for the purpose of expressing opinions. The very purpose of the speech that the 1st Amendment was intended to protect.

So, as we've discussed in previous posts, the critical distinction is not between pure speech and activity. The former protected and the latter not. No. It's not about the mere form that the expression takes. Lots of different forms of expression have been deemed by the Supreme Court to be constitutionally immune from government prohibition. Speech itself, marches, parades, memberships, signs, arm bands, billboards, commercials, campaign spending, etc., etc., etc.

But there certainly are distinctions between those expressive activities that the Supreme Court has held to be constitutionally protected and those that are not. Yes, there are differences between protected "speech" and unprotected "speech."

Supreme Court: Right on the Funeral Protests [Part 2--"SPEECH"]

Thank God, the Court has NOT heeded the nonsense about "strict interpretation."

Yes, thank God, when it comes to free speech (as well as other constitutional rights and liberties), that the Court has NOT strictly interpreted the Constitution (but instead has done so rather "loosely"). That the Court has NOT applied the letter of the law (but instead has applied its spirit). That the Court has NOT limited itself to some specific original meaning (but instead has given life to underlying principles).

That the Court has NOT been restrained (but instead has been activist in protecting free speech). That the Court has NOT deferred to the other branches (but instead has been more than willing to invalidate legislative encroachments). That the Court has NOT mechanically applied the law (but instead has revised and, yes, made law to insure that it both makes sense and is faithful to our national commitment to free expression).

Supreme Court: Right on the Funeral Protests

[The first few lines here are from the previously posted Intro.]

Yes, these people are despicable.

What they are saying is moronic, ignorant, bigoted, hateful, vicious. If there is a God, and if He is just, he may have a special place for these people. At least some hereafter reform school as a stopover enroute to eternity.

But governments and rulers are not God. And though they must regularly make judgments, it is an essential ingredient of our American credo that they can't make judgments about our speech.

At the very least, governments in America--federal, state, and local--cannot prohibit or punish the content of our speech. We are free to have our opinions and to say what they are. Whether brilliant or idiotic. Enlightened and learned or bigoted and baseless. Favorable or unfavorable, popular or unpopular, beloved or despised.

Freely speaking our views and opinions. The very essence of liberty. Indeed, an absolute necessity if "liberty" is not to be a cruel joke and a fraud. The matrix of all other freedoms and rights.