Wednesday Writs: Freedom of Speech in Snyder v. Phelps

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Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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22 Responses

  1. Avatar Oscar Gordon
    Ignored
    says:

    L6: Seems that should be similar to poll watchers. If you want to be able to stay, you have be a disassociated observer, as in not participating in the protest itself, merely recording and reporting on it. If you decide to get into the thick of it and participate, you lose the right to stick around after the dispersal order is given.Report

  2. Avatar Aaron David
    Ignored
    says:

    L1 – The majority was right, and this case should have never reached the SCOTUS, it should have been slapped down at much lower levels.

    L2 – I think the ability to form militias is covered by the 2A. It is only if they actually break the law that should cause any issues.

    L6 – Oscar is right, and if you move from disinterested to active participants, all the press credentials in the world shouldn’t shield you from illegal acts you commit. That said, the burden should always be on the police to prove it, so here is another reason to Wear the F’n Camera!

    L9 – Get this woman a place arguing before SCOTUS, as she has what it takes!Report

    • Avatar Oscar Gordon in reply to Aaron David
      Ignored
      says:

      L2 – The well regulated part is something. Read some of Br. Dave’s writing on this and his opinion is that a militia has to at least have the tacit support of some level of government (in his argument, that government is state government, not local, not federal). I don’t think you can just claim the militias are all part of the State Guards and be done with it, since the militia act is still on the books.

      But at the same time, you can’t just throw together a bunch of guys, claim yourselves a militia, and have any legitimacy. That is nothing more than a social group with firearms. It’s not illegal as such, but it’s not under the orders of the legitimate governing body, so it’s not a militia, and taking actions that would be reserved for a militia acting under orders would be illegal.Report

      • Avatar Aaron David in reply to Oscar Gordon
        Ignored
        says:

        I have read Dave’s thoughts, and I absolutely, utterly disagree on that point. I would say that the militias must operate outside the preview of gov’t, not as a check on gov’t so much, but as a basic building block of society. And not just in a firearms sense, but in an arms sense. With all that this entails. Writing can be a weapon, standing in witness can be a weapon, etc. And that ability should be another factor in who and what can form up as groups. A PTA is a form of militia, the Boy Scouts, BLM. And so on down to the well discussed Rooftop Koreans and the workers at a business.

        A militia is a group banded together for the common defense. Whether that is bad education, the police, or a shitty upbringing.Report

        • Avatar Chip Daniels in reply to Aaron David
          Ignored
          says:

          How would you apply this logic to the Seattle CHOP?Report

          • Avatar Jaybird in reply to Chip Daniels
            Ignored
            says:

            “93% Peaceful is pretty good, all things considered” might be a rich vein to tap.Report

          • Avatar Aaron David in reply to Chip Daniels
            Ignored
            says:

            As long as CHOP did not do anything that is illegal, then I see no problem with a neighborhood banding together for security, to redress wrongs, and so on.

            CHOP did things that are illegal.Report

            • Avatar Chip Daniels in reply to Aaron David
              Ignored
              says:

              In Los Angeles, there are neighborhood BIDs (Business Improvement Districts) where the businesses create a separate force of teams that clean the sidewalks, patrol and monitor for security, and handle the low level de minimis things that keep the area safe and inviting for customers.
              Although unarmed, they could be considered a militia. They are empowered to apprehend and subdue people.

              But the takeaway is that the BID is a highly regulated militia, covered under all sorts of rules from the city.

              Because without the umbrella of regulation, there really isn’t any legitimacy to their use of force. Anyone would be free to counter their force with an even greater use of force.Report

              • Avatar Aaron David in reply to Chip Daniels
                Ignored
                says:

                No regulation prevents store owners from banding together to take pictures of miscreants, informing each other of undesirable actors, about what techniques work to prevent robberies and theft, as long as those techniques are not illegal. To pressure the local gov’t to act on already enacted laws, to increase turn out to vote in laws. And so on.

                All of those things fall outside the umbrella of regulation. None of those things require any use of force, outside possible self-defense.Report

              • Avatar Oscar Gordon in reply to Aaron David
                Ignored
                says:

                In my mind, the militia, in whatever form, exists to support society when government can’t (or won’t). If the police (for instance) refuse to enter an area like CHOP/CHAZ, then the ‘militia’ can act to support the community until government reasserts itself.

                The problem, AFAICT, with CHOP/CHAZ was that such a group did not exist prior, so no legitimate, recognized body of volunteers existed to take action, thus it fell to the first group to show up with guns.

                In my neighborhood, everybody knows we have CERT teams, and who they are, and what they are supposed to be doing, so in the event we are cut off from emergency services, no one is wondering who CERT people are.Report

    • Avatar Oscar Gordon in reply to Aaron David
      Ignored
      says:

      L6 – IMHO, the press should be allowed to stick around, because LE is known to engage in shenanigans when they think no one is watching. It annoys me to no end that the courts, by and large, refuse to acknowledge this, and still perpetuate Scalia’s vaunted ‘Professionalism”.Report

      • Avatar Aaron David in reply to Oscar Gordon
        Ignored
        says:

        One of the greatest functions of the technology that has become so ubiquitous has been the emergence of video of everything, instantly uploaded to various internet sites. Police and reporters, indeed anyone whose motives and actions might be at all questioned, should be recording 24/7.Report

        • Avatar Slade the Leveller in reply to Aaron David
          Ignored
          says:

          Police in big cities are under 24 hour video scrutiny from people on the street with phones. Yet their behavior is just as bad as before.Report

          • Avatar Aaron David in reply to Slade the Leveller
            Ignored
            says:

            Yes, and 1) the video is fairly recent, not decades-long in occurrence, and 2) is starting to change things. This is a huge ship we are trying to turn, and it won’t happen overnight. But, we need to start somewhere.

            My only fear in this is how far the riots set that sea-change back.Report

    • Avatar Mike Schilling in reply to Aaron David
      Ignored
      says:

      This comment shocked me.

      I can’t remember the last time I saw “disinterested’ used correctly.Report

  3. Avatar Mike Schilling
    Ignored
    says:

    L1 — Phelps and company were awarded costs, which they had managed to inflate to $16,510 by filing many unnecessary doc pages.Report

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