Thursday, October 14, 2010

Hey now...

Like everybody else these days, I find myself with precious little free time to do things that I’m not either being paid to do for my job or required by law, ethics and morality to do for my family. I’m fortunate enough to enjoy both of those sorts of activities, but it does mean that it can take me some time to get around to other things.

So the fact that I just got around to reading Tuesday’s newspaper at lunch today isn’t all that unusual, let’s just put it that way.

Our local paper does a pretty good job of annoying both sides of the American political divide, which is a mark of balance. They get complaints from liberals about their conservative bias, and they got a whole lot more complaints from conservatives about their liberal bias – mostly, I suspect, because modern conservatives seem to view any deviation from the party line as tantamount to treason (go ahead, ask any conservative elected officials who have dared to question in any way the rabid foaming fringe element of morons that more or less sets their agenda these days) while most modern liberals seem to assume that people are going to disagree with them anyway and just buckle meekly.

Someday it would be nice to have some actual discussion of issues in the mainstream of this country. I’m not holding my breath, but someday it would be nice.

But there I was, reading through the paper, when I found Bill O’Reilly’s column on the whole Fred Phelps mess.

For those of you who live under rocks, Phelps is the cretinous lowlife whose “church” has made it a mission to protest at the funerals of US military personnel, usually with the message that since God is displeased with homosexuals, these military personnel deserved to die.

Reflect on that, for a moment. Even if you grant the premise – which I do not – there is no way to get from there to the conclusion that does not involve drinking enough antifreeze to kill a human being.

I’ll let the implications of that statement sink in slowly.

This is, of course, a free speech issue. Do Phelps and his ilk have the right to say those things in that setting or not? Free speech, after all, is not an absolute right – it does have limits. One cannot shout “Fire!” in a crowded theater unless you truly believe there is one, in the famous example, nor are you allowed to incite riots, conspire to commit crimes, or slander others without penalty. Is this one of those limits?

Personally, I have long maintained that this whole problem could go away just by making the assault of such protesters a misdemeanor punishable by a $25 fine. In these economically perilous times, I’m guessing you could raise a whole lot of money that way.

But this plan has practical issues that render it more problematic than it is worth, which is probably why one family whose son’s funeral was visited by these clowns decided to take the time-honored path for any American facing a grievance and sue.

O’Reilly was making an interesting argument that Phelps’ activities were not protected free speech under the First Amendment on the grounds that they were a form of hate speech, which has previously been found to be outside the protections of the First Amendment. I don’t often find myself on O’Reilly’s side of most issues and I don’t know yet whether I’m on his side in this one, but credit where credit is due – he made a decent case for his position, one that deserves consideration as I wrestle with my own view.

And then, in a two-sentence paragraph right at the end, O’Reilly makes the flat assertion that the family of the deceased “has a constitutional right to privacy and the pursuit of happiness” that was infringed upon by Phelps and/or his minions.

Leaving aside the fact that “the pursuit of happiness” is part of the Declaration of Independence rather than the Constitution and therefore has no force of law in the United States, the fact that Bill O’Reilly – a conservative in the modern social sense – has no problem admitting the existence of a Constitutional right to privacy is little short of astonishing.

He does realize that it is precisely this Constitutional right to privacy that is at the core of Roe v. Wade, right?

This is the thing about Constitutional rights – you don’t get to cherry-pick the issues to which they apply. If there is indeed a Constitutional right to privacy that “the despicable Phelps mob” (O’Reilly’s words) has violated, what then does that mean for the social conservative opposition to that decision? Most of those who oppose Roe v. Wade support O’Reilly, and from what I can tell he’s one of them himself. How does that square?

What would the general recognition of the Constitutional right to privacy mean for the current ill-conceived and counterproductive hysteria known as “the war on terror”? So much of that is simply the invasion of the privacy of American citizens dressed up in the flag that it is difficult to see how these things can be made to fit together.

When even social conservatives are conceding that the Constitution does, in fact, contain a right to privacy, these are interesting times indeed.


Janiece said...

There you go, applying logic and consistency to a Fox News' personality's position.

Whose drinking anti-freeze NOW?

Eric said...


I don't have time to read the O'Reilly piece and (to be honest) I don't really plan to, but is he really conceding the idea of a privacy right? Because you're right, that's essentially a left-wing argument and for a long time (as you know) was one of the actual breaking points between conservatives and liberals on the Court (for those non-Con-Law students: whether you believed the Bill Of Rights created a kind of privacy "penumbra" more-or-less defined whether you were a liberal or conservative Justice).

What O'Reilly is saying there is actually such a big deal, it's hard to believe he actually knew what he was saying.

Although I agree with him that Phelps is used douchewater. Fred Phelps' claim to American greatness: he gives hard-right-wingers and hard-leftists common ground to unite upon. Phelps will bring us together.

David said...

Eric -

I don't know if he thought through the implications of what he said, but that was a direct quote from his column.

This is the full two sentence paragraph: "The Snyder family has a constitutional right to privacy and the pursuit of happiness. The despicable Phelps mob infringed on those rights."

And you're right - it is a big deal. That's why it struck me so forcefully.

Interesting times indeed.

Unknown said...

I struggle with this issue a lot. Issam gets amazed when he sees Obama portrayed as Hitler at American rallies. Where is the hate law there?

Over on this side of the pond, the facists have to couch their hate language in code so as not to be fined. Often the masses don't pick up on the code. So, I'm not sure that's better, I'm still struggling...