A group of anti-abortion protesters is suing a local police department for violating the group's right to free speech. the protesters were arrested for breaking Nebraska statutes regarding disturbing the peace and unlawful picketing. Earlier charges were dismissed against the group.

Personal view-the group is definitely in clear violation of unlawful picketing. From the above hyperlinked Nebraska statute:



Ditto disturbing the peace:



I agree that this group has the right to protest at clinics, they obviously have that right. I believe they cross the line when they take it to a neighborhood. Such a presence is threatening and certainly upsets the "quiet" and "peace" that is normally around a given neighborhood. I wouldn't appreciate it if any group came to my neighborhood and picketed. I would resent having strangers on my sidewalks or on the road in front of my house if a neighbor or person across from me was the intended target of their protest. How would that not constitute disturbing the peace? How would that not be threatening to the folks who are targeted?

Questions for debate:

1.)Is the group guilty of disturbing the peace and/or unlawful picketing?

2.)s this a matter of the infringement of the right of free speech?

Is the group guilty of disturbing the peace and/or unlawful picketing?
Yes.

2.)Is this a matter of the infringement of the right of free speech?
No

They have no right to harass others not involved in there homes and create an unsafe situation. I would consider it a need to protect my home and neighborhood from such people.

This is a tough one. I'm not so much worried about "snitching" to neighbors of clinic workers as the subliminal affect these groups have on people, usually men, who take matters into their own hands, whether they kill a doctor, plant bombs or send threatening letters to clinics. I wonder how many who mail letters are actually prosecuted. Clinics waste a lot of money on security. Stories like this one are probably why some of these laws are passed, even if that's not the case in Nebraska:

Anti-abortion activists harass even service workers. During a recent hurrican the roof at Windle's Melbourne clinic was damaged. After repairing part of it, the roofing company quit because its workers were being bothered constantly by anti-abortion protesters. Then, says Windle, anti-abortion activists called city officials to report that her clinic was violating safety standards because its roof hadn't been repaired.

There's no federal law protecting employees from picketing at their homes, but SCOTUS didn't grant certiorari to abortion picketers who strayed too close to a doctor's home in 1995. From that article I found the Court upheld a Wisconsin law against picketing residences in 1988, but there is some vagueness as to what constitutes overbroad language. The fact that this Nebraska law includes "any street, alley, road, highway, or any other place, where such person may be, or in the vicinity thereof" makes me think it is overbroad. On the other hand I don't want families who live in gated communities to be the only people who can enjoy peace and tranquility at home.

Surprisingly, Stevens dissented in the 1988 case.

Is the group guilty of disturbing the peace and/or unlawful picketing?
It's hard to say by the one article. By "outside the home" does the article literally mean right outside the house? On the lawn, on the sidewalk in front of the house, parking garage, or across the street, driving blocks around the house?

Is this a matter of the infringement of the right of free speech?
It depends on how the law is drafted, and I think Nebraska's law is too broad.

I tend to agree with Lesly on this.

I would add, however, that a person's home is a sanctuary and that courtesy alone dictates that people not protest near someone's residence.

In a related issue, it is interesting to note that two University of Florida students were arrested yesterday for a silent protest of disgraced former U. S. General Alberto Gonzales, who was getting paid $40.000 for making a speech. Who says crime doesn't pay?

http://www.infoshop.org/inews/article.php?...071120081440581

1.)Is the group guilty of disturbing the peace and/or unlawful picketing?

Those are really two separate questions. By the explicit terms of one statute, they were unlawfully picketing. But as for disturbing the peace, I don't see how that's the case, unless they were making loud noises, or otherwise conducting themselves in an obnoxious manner, irrespective of whatever political message was carried on their signs.

2.)s this a matter of the infringement of the right of free speech?

As a legal matter, no moreso or less-so than a law prohibiting picketing at places of business. Yes, homes are more sacred property than businesses, but that's only a matter of degree. Once you start saying that (otherwise protected) free speech can be restricted under some circumstances, there's no hard-and-fast line to say where it can't be restricted. As long as we're indulging in the fiction that the First Amendment applies to state and local governments, it would set a dangerous precedent to side with the state on this.

That's a matter of opinion Blackstone, and yours is weak in this case.

Try this link on incorporation.



1st Amendment Applied (Incorporated) to the States Through the 14th Amendment

What scholarly source can you produce to counter the link I provided to the law department at the University of Missouri Kansas City?

1: This is a weird question to me. In one way it sounds quite removed from mainstream abortion rallies, on another though what is the significance of such. I think it would be easy to say that religion has a firm home in the state of nebraska, that being said how damaging could a speech like this be if say a family is targeted. What I mean is that could have a severe detrimental effect on that families ability to get a job if say the town of residence was strongly religious in convictions. So it boils down to individual liberty being in jeopardy I think regardless of what you support side wise. I think case studies would have to be conducted at least on such realities. As for in the meantime if I would have thought free speech was violated its a tricky question. I mean would the cops be wrong from removing a group of people with signs saying "legalize crack" on them? I mean what do you accept for a vision as to execute that’s lawful in regards to liberty.

I would say at least the call should fall on the homeowner, as in if the felt the crowd needed to go that a lawful protest of a residence should at that point conclude and end. I make a separation from home and business on the fact that business is almost certainly a strict social creature while homes are be far more private ones. Plus I would think the law should be involved currently under the idea that danger in or around to a certain extent of residential structures posses more of a threat to people.

2: So yes and no as to this being totally a free speech issue in the first place, so I don’t know if I can really see it as a violation.

No, it's a matter of fact.


And then it goes on to list ones that are incorporated and ones that aren't, thus demonstrating that this isn't about law at all, but about the ideological whims of judges.

I know the article tells which amendments have not been incorporated, but that's irrelevant. We are talking about the 1st amendment, which has been fully incorporated.

Let's talk about what is, not what Blackstone thinks should be. You talk about "fiction," while you seemingly live in a fantasy world wrapped in the past.

What scholarly source can you produce to counter the link I provided to the University of Missouri, Kansas City Law School?

Here's a link to their homepage.

http://www.law.umkc.edu/faculty/projects/f...nlaw/incorp.htm

Not irrelevant at all. It's prima facie evidence of the inconsistent approach the court has taken on this issue, and it speaks directly to their credibility.


Appeals to authority are all well and good, but not when they run counter to basic reason.

I didn't think you could come up with anything other than "Blackstone said." Would you like another chance?

Uh...Blackstone the custodian of "basic reason," whatever in hell that means.

No, as I've had to explain to you before, this is a debate board: I offer my reasons, and you (theoretically) offer yours. As is so very often the case, however, you haven't offered a counterargument of any kind, other than "These people said."

So the extra chance is all yours.

BoF's link to the UMKC law page was quite interesting. Yes, the first amendment is incorporated:



Blackstone-do you care to cite a definitive source that points out that legal cases show that the first amendment is NOT incorporated into the states? Yes, appeals to authority have to be measured with a good degree of skepticism. At the same time, there has to be a reason to suspect that. I have yet to hear a good case as to why the UMKC legal page with the facts on it, is clearly mistaken. It may be mistaken according to individual opinion, but mainstream legal scholars and case law say otherwise.

As I pointed out, the reason to "suspect" it is the glaring inconsistency in the Court's approach to the Bill of Rights. Nothing whatsoever in the history of how the Bill of Rights was drawn up suggests that anything listed there is more equal than any other (and in fact, the 9th Amendment more than strongly suggests otherwise). Hence, we're into the ideology of individual judges. You talk about opinion versus fact, but it's the highly selective approach that the Court has taken that has replaced fact with opinion (or tried to).

Let's review.



You made a bold statement.

I challenged your statement and provided a scholarly source.

1st Amendment Applied (Incorporated) to the States Through the 14th Amendment

Then you came back with this.



You have quoted board rules and the “Survival Guide” before. Your version of a (this) debate board doesn’t line up with the Survival Guide section below.


http://www.americasdebate.com/?page=guide

It seems the ball is still in your court and your credibility shrinks with every post.

Except that not every statement requires a source if it can be sufficiently backed up with reason. I'm glad you quoted the Survival Guide, because it contains a link to the the Fallacy Files. Under the heading of "Appeal to Authority", it states: "If a question can be answered by observation or calculation, an argument from authority is not needed. Since arguments from authority are weaker than more direct evidence, go look or figure it out for yourself." It then contains a checklist for appeals to authority at the bottom, and the very first item reiterates the same point: "Is this a matter which I can decide without appeal to expert opinion? If the answer is 'yes', then do so."


By the way you're defining the term, that's practically a compliment.

If I have to choose between you as an authority or the law professors at University of Missouri, Kansas City Law School, I'll take the latter.

Unless you get to define your own reasonableness, this is a losing argument. I can't find much reason in your approach. Sorry 'bout that.

And that just goes back to what I said: you're free to offer your own reasons in refutation. You haven't done so. All you've provided (in this and plenty of other "debates") are bare statements of disagreement and citations of other people's views.

What can I say? We have different debating styles. You continue debating as you think best and I'll debate as I think best. Others will have to decide who is right.

Feel free to have the last word. You will in any event.

Quite frankly this is getting rather boring.

Since we're getting off topic I'd like to ask you something about the Court's credibility. It appears to be a concern of yours. No matter how many times the NRA quotes the Second Amendment, the Second Amendment hasn't been incorporated through the Fourteenth. SCOTUS granted certiorari to hear Parker v. District of Columbia (pdf). ers discussed the case here.

Do you think the Court should unambiguously incorporate the right to bear arms through the Fourteenth once and for all, or do you think the Court should let states ban guns if they want to?

I want a straightforward answer.

If you look at the list, you will see that the majority of rights are incorporated. I would wager that a key reason why the others aren't is that cases haven't been brought to the court where incorporation was a concern. Seriously, how can you bring an incorporation concern regarding the 3rd amendment? So once again, on what legitimate basis is the first amendment not incorporated?

No, it's not in all cases that the Court had merely not gotten around to deciding whether or not to incorporate. It's that they affirmatively declared that some provisions are not incorporated. That's what the doctrine of "selective incorporation" (their term, not mine) is all about.


I would have to consider it axiomatic that either the entire Bill of Rights is incorporated, or none of it is. Sorry if that's not elaborated enough, but it seems to me about as basic as 2+2=4. And to make matters worse, in some cases (such as the 8th Amendment), fully analogous provisions within the same amendment are treated differently when it comes to incorporation. It's clear as day to me that the Court's stepping beyond its proper judicial role and making themselves into some kind of philosopher-kings. That's just not their job.

So given that it's all or nothing, if the 14th Amendment intended for it to be "all", it would have made it unmistakably clear. It did not.


Lesly, I'm not sure I agree that we'd been getting off-topic. The debate question asks about the "right of free speech", which I'm pretty sure everyone understands as being a direct reference to the First Amendment. But your question most certainly is off-topic, and therefore I won't be addressing it here.

If a simple yes or no answer is too much to ask in a conversation that is already discussing the pros and cons of federalism, Blackstone, we shouldn't concern ourselves with your lack of esteem in the Court's inconsistent application of the Fourteenth when you can't be bothered to give us reason to believe your principled objection is itself consistent.

Lesly, I'm not concerned with whether or not you "concern" yourself with what I have to say - only with whether or not you can refute it. By all means, don't concern yourself with my point if you don't want to. It still stands, regardless.

Ergo Blackstone avoids answering the question.


Whatever gets you through the day, Blackstone.

I don't follow. Are you implying that your question was a refutation? Usually a refutation involves making a point of some kind. Do you have one, by any chance?

It is a rule of academic discipline to cite the authorities that support one's arguments; and the more so with respect to questions of law. In this regard, although the Nebraska law incorporates acts that would constitute a breach of the peace, it does not appear to be overly broad in its application to protected speech under the First Amendment any more than the Wisconsin picketing statute that was upheld by the Supreme Court in Frisby v. Schultz, 487 U.S. 474 (1988).

By the bye, last Tuesday, the Supreme Court did grant cert. in the Parker case (District of Columbia. v. Heller, 07-290), but only on a very narrow issue that the court framed itself, and which still leaves open the questions of whether the Second Amendment protects an “individual” or a “collective” right that was not addressed directly by the court in United States v. Miller, or if the Second Amendment even applies to the District of Columbia at all. We should have a ruling by June 2008.

as usual, you not only avoid the question- you have absolutely NOTHING to back it up other than "blackstone says"- why do you hate facts and sources so much blackstone?

Nemo, Lesley and Bof all provided references and links- you provide nothing other than "um, no it isn't, because blackstone says it isn't"

Actually, I gave my reasons quite a few times already. And as I've had to explain repeatedly, no one offered counterarguments to those reasons - just citations of other people's opinions, as if to imply that there's no way those opinions can be wrong. I also went into a bit of detail on why appeals to authority aren't automatically the best way of settling an argument.

Rather than make me endlessly repeat myself, all you have to do is go back and read it.


Why do you hate reading so much?

BoF posted a strong item from the UMKC law website. What legal citations can you provide? How is the UMKC prof wrong in detailing the cases and amendments where full or partial incorporation has been mentioned?



that's where your citations come into play. Find some hyperlinks that support your position and post them.




Citing other authorities to highlight why that's the case would give your argument further credibility. Just dismissing a hyperlink out of hand without elaborating on why that given proof is wrong doesn't mean it's invalid. It's great that you elaborate on your personal views, but what sources can you find that prove your point?



Great-cite facts that back up yoru point.

Blackstone I’ll grant your right to disagree with reality, if you’ll grant that my take is reality.



How can this be “fiction” when Supreme Court decisions have long established that 1st Amendment is applicable to the states. The fact, the only one that you’ve established, is that you do not like what the judges have done. I know you can probably find dissenting opinions in these cases to support your notions, but dissents do not define law.

Here are four cases for consideration. In all four cases, the U. S. Supreme Court ruled that state action violated the 1st and 14th amendment. I need to get out of here and have some coffee, so this is it for a while.

Brandenburg Ohio, 1969



http://www.oyez.org/cases/1960-1969/1968/1968_492/

Engle v. Vitale, 1962



http://www.oyez.org/cases/1960-1969/1961/1961_468/

School District of Abington Township, Pennsylvania, et al.v.Schempp, 1963



http://www.oyez.org/cases/1960-1969/1962/1962_142/

Bates v. State Bar of Arizona, 1977



http://www.oyez.org/cases/1970-1979/1976/1976_76_316/

There may be cases where the courts did not rule a particular action unconstitutional, but a precedent for making such a determination has been established.

Because we don't care about what YOU have to say- we care about what facts you have cited- which, at this point =0.

This is typical of you blackstone- why is it so hard for you to do some actual research, I don't think of Blackstone of a cite-able source at this point.

Well, what I care about when I'm on a debate board is the strength of the arguments people make. Maybe things like logic mean very little to you (wouldn't surprise me, actually), and that's of course your right.

You can cite facts all day long, but if they don't help your argument, they don't help your argument. Complaining about that fact won't make it any better for you.

To quote Steve Martin " I believe in putting women on a pedestal- just high enough to look up thier dresses"- though, it may make some logic, it doesn't make it right, and certainly doesn't lend credibility to his belief system- the same thing applies to you- you believe it to be so, doesn't make it so, your logic may have no basis in reality.

And your total lack of credible sources to back up your so-called "logic" adds nothing to a debate. You might as well believe the world to be flat- and logically- it looks that way to the naked eye at sea level- but cited sources prove this logical observation to be wrong.

Found a great source regarding legal cases concerning their exercise on private property. In light of reading the relevant cases, I can't help but agree that the Nebraska unlawful picketing statute is vague. What in the world constitutes "any other place" in the text language? It certainly can not refer to sidewalks and streets, as indicated by Lloyd Corporation, LTD vs. Tanner. While that particular case dealt with sidewalks of privately owned places such as malls instead of residential areas, Madsen vs. Women's Health Ctr did tackle the issue of residential protesting head on and the "buffer" zones in front of residencies was slapped down on grounds of being unreasonable. I'm really rethinking my attitude on the unlawful picketing law now as a result of reading up on these cases.

Logic doesn't need sources. Do you need a "source" to tell you that a+b=b+a, or can you figure that one out on your own? And if you really think my legal logic is only "so-called", you could offer an attempt to debunk it. The fact that no one has speaks volumes.


There's nothing particularly logical about assuming that because an object appears flat at one tiny spot on its surface, it must therefore be flat over its entire surface. Close-up observation of any curved object can easily demonstrate that. So your example is not particularly compelling.

Quite frankly Blackstone- your logic has always been highly suspect of being mis-named by yourself- most call it "blackstone's total lack of logic"- since you can not back up anything you say with any credible source but your own vaulted intellect - I guess you have ceded this debate to folks that actually can look things up for themselves, that don't "take blackstones' word for it"


Unless you have finally decided to back things up instead of expecting us to take your word for it?

Logic without facts to back it up is weak.

Blackstone made this bold statement.



I made this post which, showing court cases where state violated the 1st amendment through the incorporation of the 14th amendment and were overturned by the U. S. Supreme Court. Blackstone ignored this post completely.

http://www.americasdebate.com/forums/index...st&p=231571

Fact is hard to ignore and cannot be overcome by “logic.” Such arguments would not get a passing grade in a high school debate class or on a high school term theme. Credibility is not established by intellectual laziness.

I don't expect you to take my word for anything. Instead, I back up my positions with my arguments. You're free to debunk those arguments any time you like. Show us all where my logic is off, if you can.



Nowhere have I denied that the Supreme Court has ruled the way you said. I said their logic was faulty, and I gave my reasons.


After jumping back into a discussion you earlier said you wanted no further part of, you might not want to mention the word "credibility". Just a suggestion.

Still, no, you continue to avoid the subject- why are you so afraid to cite precedent here, or rebut BOF's point with something other than your version of "logic" - why should anyone take Blackstones' logic as inviolate- did someone die and appoint you the grand high poobah of logic and constitutional law found therein?

It seems that everyone here pretty much rejects your feeble attempts at logic, and want something more than blackstone's word for it- care to back up your so-called "logic" with something more than "because I say so"?

You have offered NOTHING in your logic that, in any way, rebuts BOF in any remote form.

If I could send a dollar via electronic posting, I would give it to you to buy a clue.

Quite frankly, I know nearly nothing on the legality issues on this debate- it goes into "lawyer zone" pretty quickly- and really, I would like to see something that might educate me on this issue on the "contrary" side- and really, I have not heard anything from you that approached " logic" that would be a good rebuttal to anyone on this thread.

Only person needing to have some credibility restored, at this point , is you.

Are you saying that your “logic” overrules reality? If you don't like how the U. S. Supreme Court has ruled, what can you do about it? Absolutely nothing except constant carping.



After a good night’s sleep, I have a right to change my mind. Your suggestion is overruled.

That's a pretty surreal interpretation of what I said. It's really simple: I gave my reasons for impeaching their logic, and so far, despite innumerable opportunities, you haven't given a counterargument to those reasons (even as you go on about "intellectual laziness").

I really don't have to impeach your "logic." Your "logic" is in a fantasy world that doesn't and isn't likely to exist anytime soon. I have real-time, the way things are on my side. I would guess that many of your objections are found in the dissenting opinions. Dissenting opinions do not have the force of law and neither does your "logic."

As far as intellectual laziness goes, it took me about an hour and a half to research and write the post with the court cases. How much time have you spent organizing your carping?

Reality Check!

Who said anything about force? Of course the Supreme Court has had the ability to force its views onto society for quite some time now. No one has denied the existence of that state of affairs.

No wonder you're having so much trouble here. You've been debating a completely different matter.

I guess you are saying I don't know where Blackstone is coming from. Yes, your point, if you have one, is pretty obscure.

It seems the consensus of opinion on the board is that you are the one who is debating a different matter. I am debating reality, while you are attempting to apply “logic” to a hypothetical. Be as authoritrian as you wish. You don’t get to dictate the playing field.

You don’t like how things are, so you try to present arguments that would best be saved for a parallel universe.

The "consensus" was responding to a statement I made, therefore, that statement is the matter being debated. Again: basic logic. No authoritarianism required.

So just to review (cutting back through all the clutter of posts that kept missing the point), that statment was that that applying the First Amendment to the states is a legal fiction. The fact that the Supreme Court currently has the power to enforce its view of that question doesn't make its view any more correct.

I'm not sure what you mean. Are you saying that the Constitution does not apply to the states? Logic, it seems to me, would say that it does. If the First Amendment does not apply to the state governments, it is rendered meaningless, since we all live in a state. If the Bill of rights only applies to the federal government, then those rights are - at least philosophically - abrogated already, since we all live under state governments, which, it would seem by your statement, are free to do whatever they want regarding civil rights. Since the founders of our nation conceived of rights as natural and given by the creator, do you think they really would have intended those rights to be subject to the whims of state government, just not the federal?

Or am I misunderstanding you entirely? It's possible that your statement means that state governments themselves are not protected by the first amendment. Though that's a rather odd way of seeing it, the grammar of your statement could be interpreted that way.

If you mean it the first way, I would merely rebut with a statement at the same level of 'unassailability' as you have provided us:

saying that applying the First Amendment to the states is a legal fiction, is a legal fiction.

1.)Is the group guilty of disturbing the peace and/or unlawful picketing?

Let's see...Unlawful picketing:

Check.

Disturbing the peace:

Check. No, loud noise isn't always necessary to disturb the peace of a family at their place of residence though it is probably the most common reason.


2.)Is this a matter of the infringement of the right of free speech?

No. A group's right to "free speech" does not extend to harassment and stalking (covered under the 'disturbing the peace' and 'unlawful picketing' laws in this particular case). I'd imagine that this group would take exception if they themselves became stalkies. If, say, the organization of NAMBLA for instance picketed outside of their churches and also followed them from their churches to their places of residence and staged multiple "demonstrations" and "protests" in front of their homes. Like the abortion/bloody fetus truck, NAMBLA could even bring its own billboard truck! Kind of hard to hold a nice family cookout under those conditions. Yes, I very much doubt that this group would agree that NAMBLA would be exercising the collective right to freedom of expression in such a case.

I think that even the most anti-abortion (at least hope) can see some really sound public safety reasons for prohibiting this type of thing. Imagine a group of anti-war protestors harassing a military member and his/her family continuously at their place of residence. I can tell you I'd probably go medieval on them after a short time of putting up with that. Especially if my husband were deployed!

Or, imagine a group stalking you because they didn't like your Bush and/or prolife bumper-sticker. If a person is free to stalk and harass you at your residence because they don't like what you say/legally do for a living, your personal freedom is impeded, and that is why this type of thing is, and absolutely should remain, illegal. You don't have much personal freedom at all if people are free to harass you endlessly at your home for whatever you say or (legally) do that they don't agree with.

What do you think they "intended" when they began the First Amendment with the words "Congress shall make no law..."? Did they not mean what they wrote?