Too cautious
By Patrick Kelley
Originally published 01:36 p.m., March 13, 2008
Updated 01:36 p.m., March 13, 2008
This session, the Kansas Legislature will have to pay the price of its timidity by revisiting the law it passed last year to restrict funeral picketing.
The lawmakers were extra cautious last year when they took up the bill, which was intended to curb the excesses of Fred Phelps’ Westboro Baptist Church. Other states had tried to pass laws that would make it impossible for the Phelps family to harass the families of dead soldiers and others. Some of those states failed, their laws rejected by the courts.
The Phelpses, after all, are more than a church — they are a clan of lawyers. They are tireless litigators and fearsome foes in court.
So the Legislature decided to try to avoid trouble by equipping the picketing law with both belt and suspenders. The lawmakers came up with what they called a “trigger provision,” which would require the Kansas Attorney General to challenge the law in court before it took effect. The idea was that if the court upheld the law in this initial challenge, then it could be applied to the real world without fear.
Paul Morrison, who was attorney general at the time, didn’t think much of the trigger provision. He asked the Supreme Court of Kansas to invalidate that portion of the law. Morrison said that would avoid many complications and allow the law to go into effect immediately.
Now, months later, that is just what the justices did. Tuesday’s ruling found that the trigger provision was unconstitutional, which invalidated the whole law. The court released its ruling a few months early to give the lawmakers time in this session to fix the law.
The trigger provision in the law may have seemed like a good idea at the time, but it accomplished nothing good. Kansas wound up spending another year without a picketing law and the time of the Attorney General’s Office and the court was wasted.
There is time left in the session to fix the law. Whether the law — without a trigger provision — will stand up in court is still up in the air.
But it will have to take its chances, just like every other law passed by the Legislature.
sexingthecherry (anonymous) says...
This kind of legislation is incredibly dangerous.
As much as I despise the Phelps clan, we must do everything we can to protect free speech. The Phelps' are wrong about nearly everything, but they are absolutely right about their freedom to do what they do at funerals. It's awful and reprehensible, but if the government can justify banning speech acts it finds objectionable, it's a dangerous slippery slope to the next infringement of rights.
March 13, 2008 at 2:46 p.m. ( permalink | suggest removal )
create (anonymous) says...
Have other states succeeded in keeping the Phelps clan at bay? What did they do that was different?
March 13, 2008 at 3:20 p.m. ( permalink | suggest removal )
netloafer (anonymous) says...
Freedom of speech is not an unlimited civil right. We have the right to swing our fists around in the air, but that freedom ends where someone else's nose begins.
Supreme Court justice Oliver Wendell Holmes said in an early twentieth century decision that no one has the right to cry "fire" in a crowded theatre that is not on fire in order to create panic.
The law was amended in a later decision, stating that free speech rights could be limited or banned if it could be substantiated that the use of that speech (i.e. Phelps picketing funerals, etc) was being used to incite immediate unlawful action (a riot, for example).
I lived in the Chicago area when the American Nazi Party requested a permit to march through Skokie, a Chicago suburb. They said they had the right to express free speech. Skokie was a predominantly Jewish community, with more than a few Holocaust survivers. They petitioned against the permit, citing the fact that the Nazis only wanted to provoke the Jewish community and cause pain, strife, and physical conflict. While the Nazis did get judicial permission after a couple of years to march, the city of Skokie was also able to put severe restrictions on downtown traffic on the day of the proposed march. Seeing they had no legal recourse, the Nazis relented and their march was cancelled.
I think the same principle holds true with Phelps. He and his followers don't do what they do to make a point, or to express civil rights. They do what they do to incite immediate conflict. Hence, they don't have the unlimited right to do so.
March 13, 2008 at 4:57 p.m. ( permalink | suggest removal )
Bjnemp (anonymous) says...
It's the 99% of scumbag attorneys like the Phelps cult that give the 1% of good attorneys a bad name.
March 13, 2008 at 5:29 p.m. ( permalink | suggest removal )
tosie (anonymous) says...
I'd like to see the Phelps clan rot in hell.....It disguists me to watch them picket....the worst part is that they have their small children out there holding up derogatory signs and those kids don't have a clue what they are doing! It's awful and I hope someday there is a law that prohibits them to picket anywhere!!!!! I watched them walk up to a corner parking lot where girl scouts were selling cookies and they stepped right in front of them, formed around them, and started picketing with their nasty signs.
March 14, 2008 at 1:48 p.m. ( permalink | suggest removal )
jayhawker (anonymous) says...
Netloafer correctly stated the law. The "Government" (i.e., the people acting through its elected representatives in the Legislature) can impose reasonable restrictions on the exercise of the First Amendment. Note that the Court in this case did not address that issue, limiting itself to the issue of separation of powers because the Legislature had required the court to approve the constitutionality of the legislation before it went into effect (the so called "trigger provision"). The court ruled that the trigger provision amounted to an advisory opinion, which it felt to be unconstitutional. It did not, in any way, limit the Legislature's power to impose reasonable restrictions on funeral picketing.
The next question is where this leaves the Casino legislation from last year, which contained its own trigger provision. It seems likely that the analogy is the same and that the Court will find it unconstitutional, too. Wow, wouldn't that open a can of worms.
March 15, 2008 at 5:54 p.m. ( permalink | suggest removal )
ascwrangler (anonymous) says...
There is a solution being implemented by a national orginization called the "Patriot Guard Riders", with a local group here in the Emporia area participating. These folks have not only minimized the need for legislation, but also exercised their own right to free speech.
I certainly support their efforts.
http://www.patriotguard.org/Home/tabi...
March 19, 2008 at 1:23 p.m. ( permalink | suggest removal )