Supreme Court to hear Westboro appeal

posted at 2:20 pm on March 9, 2010 by Ed Morrissey

The First Amendment doesn’t exist for easy cases — and the Supreme Court will hear one of its toughest in its next session.  Does freedom of speech extend to the despicable practice of protesting at military funerals?  And even if it does, does the First Amendment hold speakers without any liability whatsoever for their actions?  The court will hear an appeal from the Westboro Church, based in Topeka, of a $5 million judgment against the congregation for emotional distress due to the invasion of privacy committed by followers of the group founded by Fred Phelps:

The U.S. Supreme Court on Monday agreed to hear a case involving Fred Phelps and his Topeka congregation, whose protests at military funerals have angered families across the country.

The court said it would consider an appeal from the father of a slain Marine who hopes to reinstate a $5 million verdict against the Topeka-based Westboro Baptist Church.

Albert Snyder of York, Pa., successfully sued the church in a Maryland federal court in 2007 arguing its funeral protest was an invasion of privacy that caused his family emotional distress.

But last fall an appeals court reversed the $5 million verdict, ruling the church’s protests were protected by the First Amendment. The Supreme Court will hear Snyder’s appeal this fall. …

Westboro, an unaffiliated church with fewer than 100 members, went from local curiosity to national notoriety after it began protesting military funerals. Church members believe the deaths of military personnel — as well as tsunamis, Hurricane Katrina and the 2006 Amish school shooting — are God’s punishment for the tolerance of homosexuality.

It’s a theology summed up on their hand-painted protest signs: Thank God for 9/11; America is Doomed; and Thank God for Dead Troops.

Let’s start out by stipulating that the Phelps congregation is simply despicable.  Regardless of whether one supports war or America’s foreign or domestic policies, we can all agree that our soldiers, sailors, Marines, or airmen don’t make those decisions.  They carry out the lawful orders of their chain of command.  If Phelps’ flock wants to protest politicians, well, more power to them.  Harassing the families of fallen heroes is nothing more than a cheap political stunt and a symptom of a profound poverty of the soul.  Their families should be ashamed of them.

However, with that said, Americans do have the right to speak publicly about politics and religion, even when that speech is obnoxious, bigoted, rude, and mindless.  If they conduct those protests on public property, then the First Amendment protects them, at the very least from prior restraint.  If the First Amendment doesn’t protect wrong-headed speech, then it’s not really much use to anyone.  Politically-correct speech doesn’t get challenged, after all.  Freedom of speech exists explicitly to protect political action that isn’t widely accepted or approved.  Otherwise it wouldn’t need any protection at all.

This case raises another question, though, and one that isn’t so easy to dismiss.  The Snyders didn’t attempt a prior restraint or demand a criminal sanction, but instead sued Westboro for infliction of emotional distress and invasion of privacy.  The latter would seem to be a rather difficult argument to make for a funeral that took place in public view, but certainly we can agree that the emotional distress is a reasonable product of the hateful Westboro protests.  Indeed, it’s hard to argue that the Westboro gang didn’t maliciously intend to inflict emotional distress through their speech and actions, and that it wasn’t explicitly directed at the Snyder family.  If that can be proven to a jury’s satisfaction, should the Westboro gang get a pass on being held responsible for their actions?

That’s a tough question.  Emotionally, one would like to see groups like Westboro bankrupted for their ghoulish behavior.  However, such lawsuits against political speech could set dangerous precedents.  How long before people start suing Tea Party organizers for frightening progressives in their communities, for “invasion of privacy” connected with public protests, and infliction of “emotional distress”?   The First Amendment is too valuable to a free people to allow civil lawsuits to render it meaningless through the threat of big awards and huge legal costs to those who wish to speak.   The ghouls at Westboro may have to be the burden we carry to keep political speech free of such encumbrances.

Update: I left the “don’t” out of a sentence about soldiers, sailors, Marines, and airmen, which stated the opposite of my intent. It’s fixed now. Thanks to Rusty P for the heads-up.


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Being very old-fashioned, I much prefer the Hyde Park Corner solution to free speech.

If one wishes to listen, one must go to the speaker.

OldEnglish on March 9, 2010 at 5:02 PM

Got your back, Esthier. *S*

Liam on March 9, 2010 at 5:01 PM

Much appreciated. Now hopefully no one will start posting as Esther and get me banned. :)

–Corporations can make political contributions in federal elections so long as they set up Political Action Committees and have senior level/mangagement employees contribute to the PACs.

Jimbo3 on March 9, 2010 at 5:02 PM

Yeah, so long as they make it more difficult to tell who’s receiving their money.

Esthier on March 9, 2010 at 5:11 PM

All rights are balanced against other rights. A right to privacy trumps a right to free speech — you cannot enter my home without my permission to talk to me. You cannot enter an auditorium I’ve rented, without my permission, in order to dispute with me. Taking that just a little further, you cannot enter the grounds of a church (where, incidentally, ALL services, including funerals, take place in public view) reserved for a private service and harangue me there either.

Laws (and courts) exist to prevent expansive acts of private revenge by permitting the state to act in trust for the wronged people. If the acts of Westboro is held as true free speech, rather than harassment, look to the harassed families to take things into their own hands.

unclesmrgol on March 9, 2010 at 5:17 PM

Esthier on March 9, 2010 at 5:11 PM

You’re safe, so don’t worry! They know emails and probably IPs.

Frankie says ‘relax!’

~dives for cover~

You’re safe, never fret. If not here, then somewhere else.

If not us, then who? If not now, then when?

We can’t always answer such questions, but I believe in full that the Lord provides. We might miss, but He never fails.

Which, as I suspect, you already know, Esthier.

Liam on March 9, 2010 at 5:17 PM

The fact that the protest took place on public property will make a huge impact on the SC’s decision.

Rovin on March 9, 2010 at 3:11 PM

I doubt it. The Court has let stand prohibitions against pro-Lifers protesting on public lands too close to an abortion mill.

unclesmrgol on March 9, 2010 at 5:19 PM

Which, as I suspect, you already know, Esthier.

Liam on March 9, 2010 at 5:17 PM

I know exactly where I’d be were that not true, and I try to remind myself of that regularly.

Thanks for helping with that.

Esthier on March 9, 2010 at 5:22 PM

Esthier on March 9, 2010 at 5:22 PM

Like I said, I got your back. You make sense, which I find refreshing. As a general point, none of us is required to be more perfect than the next guy (speaking generically).

I like your mind. It tends to be clean, tidy–unlike liberals who cloud their own with a lot of ‘what ifs?’.

Liam on March 9, 2010 at 5:33 PM

The Supreme Court has repeatedly ruled that your right to assemble and protest is subject to permit. In other words, you cannot just get together in an extemporaneous mob and scream about things. You have to secure a permit from the municipality that has jurisdiction over the public land you are on. If the Westboro Church did not get the required permit they cannot assemble and protest legally. Even the KKK gets permits for their marches.

The root of this case, and the guilt of Westboro, is the intent. They are entitled to protest the war. But they are not entitled to badger and insult the grieving families of dead servicemen. Their rights of free speech do not supersede the rights of the families to be treated with dignity and respect in public during a moment of emotional distress and loss. It is harassment. It is illegal, and they should not be allowed to disguise such disgusting activities as legitimate protest.

Hawthorne on March 9, 2010 at 5:38 PM

Agreed. Despicable, but free speech must be protected. Too bad there have to be asswipes out there we have to defend. No reason they can’t get hit by a truck, though.

to “unclesmrgol” – entering your home is a matter of private property rights, not a right to privacy. BIG difference. I sympathize with your feelings, but you’re mixing up legal concepts. And, harassment also has specific legal definitions which are established.

Pablo Snooze on March 9, 2010 at 5:39 PM

Ambulance-chaser lawyer scum + church facade == heap big evil

spmat on March 9, 2010 at 5:41 PM

Their families should be ashamed of them.

If I remember right, you have to be of the family to be part of the “church group” married or blood.

I wish I was joking.

upinak on March 9, 2010 at 5:45 PM

Just curious – aren’t most cemetaries generally owned and operated by organizations, rather than the government? For example, Catholic cemetaries are the property of the Catholic church, aren’t they? Other cemetaries are owned and operated by other churches. Many of the cemetaries here in Atlanta are owned by companies. I could be wrong, but I believe that’s the case.

Assuming that was the case here, you could make a case that the organization, church, or company was reserving the use of the cemetary for the use of the family at that time, and therefore, since Phelps and his ilk were NOT invited, they were exercising their free speech rights in a place they should not have been – similar to the case mentioined earlier about them not being able to come into my home without permission and start spouting their…. whatever you want to call it.

I’m no lawyer, so maybe there’s more to it than I know. But could this be a possible avenue to explore?

psrch on March 9, 2010 at 5:49 PM

If I remember right, you have to be of the family to be part of the “church group” married or blood.

I wish I was joking.

Yes, a clan of nutcases and defects if I ever saw them.

I believe in the right to free speech, even the obnoxious kind Phelps and his backward crew of knuckle-dragging mouthbreathers espouse, because while I consider Phelp’s theology and politics despicable, as a Catholic it is increasingly clear our points of view are no longer fashionable in the public sphere. What I do not want to happen to me, I would not wish on others. No matter how much I’d like to have a go at Phelps and his backward clan of bigots.

That being said, there is nothing stopping decent people from confronting these neanderthals head-on. They publicly post where they are going to be and who they are protesting (and their hatred is directed toward more people than our servicemen and women; they pretty much hate anyone who isn’t a part of their abusive cult); maybe organizing a group to play patriotic music loud enough to drown them out will work. I believe a group of motorcyclists used to (and still might) show up and rev their bikes to drown them out.

That, or I wonder if putting in the death notice that the services are PRIVATE would have any sway…

englishqueen01 on March 9, 2010 at 6:12 PM

I doubt it. The Court has let stand prohibitions against pro-Lifers protesting on public lands too close to an abortion mill.

unclesmrgol on March 9, 2010 at 5:19 PM

First off, this case has nothing to do with the First Amendment since the government is not involved in any way.

Second, the abortion mill protest limitations have more to do with interfering with a legal business and individuals right to personal space privacy than with the First Amendment. Again, the government is not involved.

The Supreme Court will rule 9-0 that no constitutional right is implicated, ergo no federal jurisdiction. State jurisdiction is controlling and the federal courts have no authority to over-rule state courts unless there is a federal question.

Unless I’ve missed something, Westboro cannot prevail.

platypus on March 9, 2010 at 6:14 PM

I pray for their buses to break down, those times that I think of it.

Axeman on March 9, 2010 at 6:17 PM

englishqueen01 on March 9, 2010 at 6:12 PM

The Patriot Guard Riders help with the funerals, usually for military and retired. But it has gotten so bad that they also help with “other” funerals if called and asked.

I was part of them for some time and still am but have not seen a funeral in need for a while. What I do know is if you touch them, in any way, or yell back at them even though you are in your rights of free speech, they search and find out who you are and personally sue you and your family. I wish I was joking about that too. It came down that anyone who stood in a “line” for the Patriot Guard say nothing to them, ignore them… stand with a flag quietly so the Phelps couldn’t get near the family (as they will not touch you) and either sing songs or ignore them all together. It annoyed the Phelp’s clan and they couldn’t do anything about it.

One thing is that the PGR have to be invited to any of the funerals… they are also not allowed to just show up. So if the family didn’t invite the PGR, and the Phelps protested the Funeral…. it is on the Family.

upinak on March 9, 2010 at 6:20 PM

I like your mind. It tends to be clean, tidy–unlike liberals who cloud their own with a lot of ‘what ifs?’.

Liam on March 9, 2010 at 5:33 PM

Thanks. My memory isn’t the greatest, but I know I generally love your posts as well.

Esthier on March 9, 2010 at 6:28 PM

Thanks. My memory isn’t the greatest, but I know I generally love your posts as well.

Esthier on March 9, 2010 at 6:28 PM

You just made my day!

Liam on March 9, 2010 at 6:38 PM

Jimbo3 on March 9, 2010 at 5:02 PM

Tell the leftards that – not us. They are the ones always whining about it.

Blake on March 9, 2010 at 6:41 PM

You just made my day!

Liam on March 9, 2010 at 6:38 PM

I’m glad to hear that.

Esthier on March 9, 2010 at 7:05 PM

And, really–how about your ‘rights’ against plain old common decency? How about love for your fellow Man. Are those last things any part of your psyche?

Liam on March 9, 2010 at 4:21 PM

My feelings and good stewardship are not in question. They as well as your consideration thereof are irrelevant.

The Race Card on March 9, 2010 at 7:14 PM

I still think Phelps needs some quiet time alone with a broomstick handle and a few servicemen.

Just to give him something to think about before he sheds his earthly coil.

jcrue on March 9, 2010 at 7:16 PM

The Westboro sponsored protests are a form of hate speech.

Funerals are a private family matter and, while not restricted from public participation, the privacy is implied and understood by ordinary citizens.

The Westboro members place their lives and their childrens’ lives in danger when conducting protests at places where emotions are not the norm.

An ethical boundary needs to be enforced by the Supreme Court. While the lawsuit may not successful on behalf of he , the funeral protest law must remain in place.

jediwebdude on March 9, 2010 at 7:16 PM

Complicated. Not prior restraint, but can such tort liability cause chilling effect. They sued under various tort theories, but all theories would be subject to the same constitutional limitations imposed on a defamation cause of action. Was what was said by the protestors an objectively verifiable false statement of fact or merely a statement of opinion or rhetorical hyperbole? As family members can they sue for defamation of the dead or are they suing on their own behalf? Is a grieving mother injured by the defamation of her dead soldier son? They will probably argue that war dead and the war are matters of public importance making them for the purpose of this issue only a public figure so as to require a showing of actual malice.

Complicated issues. I imagine that is why SCOTUS is taking a look at it.

tommylotto on March 9, 2010 at 7:22 PM

Let’s start out by stipulating that the Phelps congregation is simply despicable.

Absolutely, Ed. Great start!

Regardless of whether one supports war or America’s foreign or domestic policies, we can all agree that our soldiers, sailors, Marines, or airmen don’t make those decisions.

Totally! I….wait? How come Marines gets to be capitalized?

Squids are people too!

Rightwingguy on March 9, 2010 at 7:28 PM

If I remember right, you have to be of the family to be part of the “church group” married or blood.

I wish I was joking.

upinak on March 9, 2010 at 5:45 PM

As I said at the top of the thread, it is wrong to dignify this group of vermin with any pretense of being a church, let alone an unaffiliated Baptist church.

I put Westboro Baptist and Trinity UCC in the same list of Godless heathens who defile all that is holy and all their followers Godless heathens who pervert God’s message and Christ’s sacrifice.

highhopes on March 9, 2010 at 7:29 PM

Actually Ed (great post, btw) here’s how I see it: the First Amendment doesn’t allow me to hurl insults and epithets at people. This clearly crosses the line.

Similarly, this group is intentionally picketing funerals of fallen service members with signs that basically are insulting, demeaning, and hurtful towards the family’s and, frankly, all who have served, are serving, or will serve.

So this isn’t even First Amendment material (in my mind at least).

Rightwingguy on March 9, 2010 at 7:33 PM

That depends on how you want to define ‘unmolested’.

Your post, which seems angry as I read it, means that no one can complain. Too bad–free speech means the People CAN complain.

By your definition, as you posted, mean NO One can complain. That’s absolutists, which requires government intervention.

Logically then, by what you posted, free speech in full is fine though it requires government intervention to both, at the same time, prevent and guarantee it.

Hey–got any Advil? I need some to figure out your logic

Liam on March 9, 2010 at 4:18 PM

I’m clear about my rigid view of the FA and you don’t like that. But you are standing on the slipperiest of slopes.

The “government intervention” canard is like a mobius-strip considering that your own detailed parsing of when and how to apply FA rights requires thorough gov-intervention.

Anyhow, your so-termed “government intervention” is already a fact of American life. Remember those three branches of government? Yeah…that government intervention.

Until your FA rights violate federal/state laws or another citizens’ rights I encourage you to enjoy them.

The Race Card on March 9, 2010 at 7:33 PM

What I’m not clear on is where this far-left hate group masquerading as a church group was standing. Were they standing out on the public sidewalk or street? Or were they within the property of the church grounds or graveyard?

If they were on public property, then maybe you could nail them for failure to get a permit. But if they were on private property then they are toast.

CatchAll on March 9, 2010 at 7:33 PM

CatchAll on March 9, 2010 at 7:33 PM

Doesn’t matter if i insult your mother in your home or from the street corner, I’m committing harassment. These people knew what they were doing. It was intentionally hurtful and demeaning.

Rightwingguy on March 9, 2010 at 7:40 PM

Seriously, there is a special circle of Hell for people like this….

Rightwingguy on March 9, 2010 at 7:41 PM

Totally! I….wait? How come Marines gets to be capitalized?

Squids are people too!

Rightwingguy on March 9, 2010 at 7:28 PM

The Services establish their own conventions, only the Marines have chosen to capitalize their moniker.
-An airman

Maquis on March 9, 2010 at 7:41 PM

Maquis on March 9, 2010 at 7:41 PM

Jeez, cut your hair really short, communicate in grunts and growls, become really surly and all of a sudden you’re super-special.

Gotta love the Marines!

Rightwingguy on March 9, 2010 at 7:43 PM

Gotta love the Marines!

Rightwingguy on March 9, 2010 at 7:43 PM

Yes you do. Army folk also communicate in unintelligible grunts which can be anything based on how if the “whohaw” ends in a question, an exclamation, or a declarative grunt. But that doesn’t put them in the same league as Marines.

Airmen, on the other hand, are exactly the epitome of Don’t bother telling, we can guess.

highhopes on March 9, 2010 at 7:49 PM

AFSOC_Commando on March 9, 2010 at 7:47 PM

Now my wife will have to let me build a trike!
(Bad back… ‘~’ )

Thanks for the link, joining now.

Maquis on March 9, 2010 at 7:54 PM

If the Phelps protest was on private property, then they trespassed. If on public property, then they needed to apply for and receive a permit for their protest. Phelps’ so-called “church” may have a right to voice their views in public, but they don’t have the right to choose where and when and which portion of the public they protest is presented to.

What makes the Phelps protest so odious was that it was not directed against a government whose policy he disagreed with, nor even with the Marine who was implementing that policy, but against the family of the Marine who was killed in action. By choosing that target for their protest, a grieving family that had no part in the issue, Phelps’ intent was clearly not one of influencing public policy or petitioning for redress of grievance, but to cause emotional pain to innocents and for no other reason. I don’t think the 1st Amendment protects public speech directed at private parties for no purpose other than to cause pain.

Socratease on March 9, 2010 at 7:58 PM

So, if I were to follow someone around shouting, “Fagot! Fagot! Fagot!” that would be protected free speech?

So much for stalking legislation in that case…and when these people show up at funerals for deceased military that’s exactly what it is…stalking.

I can think of many other scenarios that wouldn’t be protected as “free speech”. The only reason disruptive, harmful and obnoxious “free speech” is tolerated is if one (or a group) garners the attention of the ACLU types (and remember even they, save one, didn’t want to defend the neo-Nazis who wanted to march through Skokie, Illinois.)

Go out there and stand in front of your local courthouse or police station with a bullhorn calling the judges and cops queers and see where that gets ya.

Dr. ZhivBlago on March 9, 2010 at 8:00 PM

Actually looking at the Westboro Baptist Church Wikipedia entry, they call people f@gs alot. What do they have against Harley Riders? (Content Warning, It’s South Park)

Rightwingguy on March 9, 2010 at 8:01 PM

A funeral is not a public event, even if it is being held in a place that can be viewed from a public place.

Alternately, nobody has a right to try and disrupt private events, even if they are occuring in a public space.

To go further, I would say that nobody has a right to disrupt public events, even if they are occuring in a public space.

As such, the tea party protests would not be relevant, since anyone who is upset by the tea partiers has a very simple solution. Be somewhere else. Nobody is forcing them to remain where they can hear the speakers or read the signs.

MarkTheGreat on March 9, 2010 at 2:33 PM

This has been my take on this, ever since Phelps and his slimeballs came into the news. A funeral is a private event, and as such, there is no constitutional right to “protest” at one. By this standard, the first amendment would give people the the right to come onto your property, or even into your home and protest.

I also agree with you that there is no “right” to disrupt a public event in a public place. A case in point would be when some idiot goes into an auditorium, where someone is authorized to speak, and tries to shout the person down. If they are asked to stop, and refuse, they have committed a crime. That type of “speech” is NOT protected. You can’t trample on someone else’s rights to secure your own.

JannyMae on March 9, 2010 at 8:11 PM

Unfortunately (or fortunately as the case may be), this is an open and shut case as far as I’m concerned. The First Amendment wins.

“Without Freedom of thought, there can be no such Thing as Wisdom; and no such thing as public Liberty, without Freedom of speech”

Benjamin Franklin

Feel perfectly free to call me an absolutist here.

russcote on March 9, 2010 at 8:57 PM

By this standard, the first amendment would give people the the right to come onto your property, or even into your home and protest.

Incorrect. It would be more like them standing on your sidewalk provided you don’t live in a gated community or secured complex.

Most funerals are open to the public unless otherwise stated. Most people have no reason to keep people away from their corpse.

You can’t trample on someone else’s rights to secure your own.

JannyMae on March 9, 2010 at 8:11 PM

What rights are “trampled” by the Phelps bag-o-nuts?

The Race Card on March 9, 2010 at 9:00 PM

It’s ugly speech but it is free speech and it is protected speech. The First Amendment protects their repulsive speech, as it should.

sinsing on March 9, 2010 at 9:08 PM

AFSOC_Commando on March 9, 2010 at 7:47 PM

You do not have to be a “Biker” type at all. Just a patriot and a American who doesn’t agree with what they do or anyone who protests a funeral.

It doesn’t matter on race, affiliation, religion, area of the country (as they had PGR in Canada) or anything else.

All that matters is to Respect the Family, Respect the Fallen and to respect the Flag. Ask your State Captain or the BOD if you would like. They will tell you the same thing. They do not care who joins…. all y9u have to do is respect the Fallen and Family and Friends.

upinak on March 9, 2010 at 9:38 PM

Westboro, an unaffiliated church with fewer than 100 members

I agree that this is absolutely protected free speech. However, and this has probably already been said, these 100- people are surely willing to have their names documented, legally and online, right? Because they’re so fond of free speech? And when one of their adored family members dies, tragically, willing to have 150,000 protesters screaming “Thank God For Cancer!!” from 25+ feet away while they’re trying to mourn?

Great! Quid pro quo and all that. And thank God for Google.

Tanya on March 9, 2010 at 9:46 PM

Isn’t the point of the Westboro church to make money out of suing people who infringe on their 1st amendment rights.

These loons recently protested outside my place of business (an office building that happens to house Twitter). We were warned to leave them be because they actually WANT you to interfere. Then they sue. And they make money off of you.

Why are we not talking about this blatant abuse of their first amendment rights?

BVM on March 9, 2010 at 9:49 PM

The right to freedom of speech shall not be infringed – so says our constitution. However, the constitution does not relieve one of the consequences or responsibility by exercising that right.

The distress angle is pretty well set in precedent if taken in the same vein of shouting “fire” in a crowded movie theater. Sure, nothing says you can’t say it, but you are still responsible for your words.

Hmmm, similar corollary – you have the right to a firearm. You are still responsible for the use of that firearm.

dkeppner on March 9, 2010 at 10:05 PM

I’m not sure I see how a funeral is a public forum.

And, to a certain extent, I wonder just how much what they were saying is covered under the 1st. It is one thing to tell someone that the Iraq war is wrong, and that we should end it. It is quite another to say, “Your son was a monster, and I’m glad he’s dead.” The first one is a pretty straight forward statement of policy. The second sounds more like a request for a fat lip.

Voyager on March 9, 2010 at 10:23 PM

To clarify, to the best of my understanding “fighting words” are protected under the 1st.

As I understand it, if you say sufficiently hostile words to someone, and they then take violent action against you, you are still considered the initiator of the fight, which means the other guy is not guilty of assault, even if he swung first.

It just seems to me that what they were saying, and when they were saying is skirting that line.

Voyager on March 9, 2010 at 10:32 PM

OK, Ed, let’s sum it up: The families of our dead need to suck it up. They and their feelings are expendable.

VERY, very easy for you to say.

I’m sure you agonized over this decision—but that’s still the decision you came to.

As for me, I’m not willing to let our grieving military families accept this as one additional burden they need to bear.

There must be some way to deal with cretins like Team Phelps and still stay within the First Amendment.

Personally, I’m willing to bend the First Amendment a wee bit, in order to NOT let folks like Phelps run roughshod over the rest of us.

I am not so scared of slippery slopes that I’m willing to sit back and let Team Phelps succeed in making our grieving military families even more miserable, with only a few scolding blog posts in response—blog posts that those cretins will happily ignore.

smagar on March 9, 2010 at 10:36 PM

What rights are “trampled” by the Phelps bag-o-nuts?

The Race Card on March 9, 2010 at 9:00 PM

The right to not be harassed at a private event like a funeral. Not all “speech” is protected, and harassment is not protected speech.

JannyMae on March 9, 2010 at 11:29 PM

Most funerals are open to the public unless otherwise stated. Most people have no reason to keep people away from their corpse. –

Race Card

And in the event that the people who are in view of the corpse, as you so crassly put it, are harassing the mourners, the mourners have no right to demand that they cease and desist? What a load of crap. Freedom of speech is not unlimited, and when someone is engaging in harassment, that’s when they are trampling on other people’s rights.

A PRIVATE funeral is not subject to first amendment speech protections. No way. No how. In other words? You’re full of it. You’ve taken the constitution and bastardized it beyond all recognition, and so has Ed.

JannyMae on March 9, 2010 at 11:33 PM

AFSOC_Commando on March 9, 2010 at 7:47 PM

One of my best friend’s grandson died from IED burns in Iraq. The Phelps Whelps came up to southeastern NE to do their thing at his funeral and you guys, or a similar group, moved them out of the action completely. I’ve never had an opportunity to say thanks, but it was much appreciated. It could have gotten violent, otherwise.

a capella on March 9, 2010 at 11:39 PM

Some activists have devised a creative way to turn the Westboro protests to advantage. Mount a counter-protest where you promise to give x amount of money to a cause the church despises, for every minute Westboro protests.

It usually doesn’t make Westboro leave, but it promotes solidarity and good feeling among the people he is targeting, and puts Phelps in the position of raising money for the people he is protesting, just by protesting them.

Westboro gets their free speech, and you get to make money from it for your cause.

There are often creative ways to confound the people you hate, without creating legal conundrums.

YehuditTX on March 9, 2010 at 11:43 PM

PS Just to be clear, I wouldn’t expect or ask the people at the funeral to do this, but it would be a fun activity for people sympathetic to them, who wanted to help by boxing Phelps into this corner while the funeral attendees got to hold their service unharassed.

YehuditTX on March 9, 2010 at 11:48 PM

I’d like to revise and extend my remarks.

It was, perhaps, a bit harsh to say that you view the families as “expendable.”

But, you are leaving them to the mercy of Team Phelps and other cretins like them.

That’s quitting, IMO.

If our legal eagles haven’t figured out a way to protect our grieving military families without trampling upon the First Amendment, then they need to keep figuring. They need to come up with something.

This is a novel situation. I’ll bet the Founding Fathers never imagined a crew of cretins as creepy and mean as Team Phelps.

I refuse to believe that Thomas Jefferson or James Madison would have preferred to let Phelps get away with what he and his followers of failed human beings are doing. Instead, I think our Founders would have expected their successors to screw on our thinking caps, think hard and come up with an answer that protected both the grieving military families AND the Bill of Rights.

We, as citizens, certainly don’t need to shrug our soldiers and walk away, leaving these families in a lurch.

If anyone gets the benefit of the doubt in how the First Amendment is interpreted in this case, it should be the families and the communities trying to protect them, NOT Team Phelps.

Just because this isn’t an easy situation doesn’t mean that we should abandon these people. We should deal with this problem despite the slippery slope, instead of shrink away—and abandon our grieving military familites—because we fear it.

smagar on March 9, 2010 at 11:49 PM

I witnessed Phelps himself get attack at the U of Michigan while trying to express free speech. He should be allowed to speak.

A. This Military family could be upright and trust worthy.

B. This Military family could be scumbag Democrats/Marxists that want a big fattie check in the mail. “Can we get that $5 million in hundreds – crisp bills, please.”

PRIVATE FUNERALS! Period, problem solved.

father on March 10, 2010 at 12:08 AM

God, or Karma, if you prefer, (wouldn’t want to leave the Anonymous One With Cats out of the loop) will have something special in store for this freak show of a cult.

I want to see these people take it on the chin as much as the next fellow, but not at the expense of our First Amendment.

I’m not up on the particulars of this case, but from the little bit gleaned here, this is a ticklish one.

This is why SCOTUS nominations are as important as anything a president will ever do.

hillbillyjim on March 10, 2010 at 1:22 AM

When does lawful protest become unlawful harassment?

{^_^}

herself on March 10, 2010 at 3:20 AM

So what does it mean if Phelps` “church” gets hit by a lightning bolt and is blown to bits?

I lived in Lawrence,KS in the 90`s and this creep Phelps was well known for his hatred of homosexuals.

Somehow this twisted turd has now managed to hate all Americans excepting his followers.

I wonder when Jones Phelps will make his own attempt at utopia in a nice, remote tropical location.

And when the Phelps` cultists see large batches of kool-aid being prepared and catch the slight odor of almonds . . . .

Sherman1864 on March 10, 2010 at 4:11 AM

Sigh. Why does SCOTUS need to adjudicate this? Mr. Mossberg and Mr. Colt are sufficient when on display. Funny ’bout that.

Caststeel on March 10, 2010 at 5:33 AM

I’m a Catholic and was taught that Jesus said in one of the four Gospels that he didn’t want sacrifice, that he wanted us to show each other mercy. The Phelps group is not showing mercy to fallen hero soldiers, going against God. If they go against the teaching of Jesus, what kind of Christians are they? Not my kind…….

adamsmith on March 10, 2010 at 6:23 AM

as well as tsunamis, Hurricane Katrina and the 2006 Amish school shooting — are God’s punishment for the tolerance of homosexuality.

I’m pretty sure the Amish don’t “tolerate” homosexuality. So exactly why would God punish them?

Fred Phelps and his robots don’t follow the same Jesus I do.

Squiggy on March 10, 2010 at 6:53 AM

First off, this case has nothing to do with the First Amendment since the government is not involved in any way.

Unless I’ve missed something, Westboro cannot prevail.

platypus on March 9, 2010 at 6:14 PM

You did…you missed the preamble to the constitution which lays out the reason for the constitution…all the bills support what the preamble states. Most people have no idea of that, they only think of the bill of rights.
And the “government” does not have to be involved to have it go to the Supreme Court. We are the government and many cases do not “involve” the gov., although one could argue the gov in into everything, and this is a freedom of speech issue.

right2bright on March 10, 2010 at 7:25 AM

What these evil people from Westboro “Church” are doing is akin to yelling “fire” in a crowded theater; but, rather than create distress through panic, they create distress through disgust. Maybe these pinheads will get the bright idea of going to Detroit and protesting outside of the unemployment office, telling a lot of angry, jobless people they don’t have jobs because of homosexuality. I’d love to see what happens after that.

olesparkie on March 10, 2010 at 7:33 AM

The Westboro cranks will not go quietly. They will only be stopped when the cost exceeds the benefit. That cost will be in dollars or blood. I’m not talking about right or wrong, just the end result of a mission with an ugly goal.
They will reap what they sow and I will waste no pity on them.

SKYFOX on March 10, 2010 at 8:06 AM

I agree with you Ed. (I know you were waiting on it.) But also remember that the Courts have already upheald laws that anti-abortion protesters are criminals and have placed different restrictions on them.

If anti-abortions protesters free speech is considered criminal, then this type of speech can be restricted.

IMHO, I want both free.

barnone on March 10, 2010 at 9:37 AM

Actually Ed (great post, btw) here’s how I see it: the First Amendment doesn’t allow me to hurl insults and epithets at people. This clearly crosses the line.

Similarly, this group is intentionally picketing funerals of fallen service members with signs that basically are insulting, demeaning, and hurtful towards the family’s and, frankly, all who have served, are serving, or will serve.

So this isn’t even First Amendment material (in my mind at least).

Rightwingguy on March 9, 2010 at 7:33 PM

–The First Amendment does allow you to throw insults at people. What it doesn’t allow you to do is falsely shout “fire” in a crowded theatre or to incite imminent lawless action.

Jimbo3 on March 10, 2010 at 9:57 AM

FYI: Here’s a link to the decision of the original appelate court: http://www.citmedialaw.org/sites/citmedialaw.org/files/2009-09-24-Snyder%20v.%20Phelps%20Appellate%20Decision.pdf

It’s not clear whether Westboro Church was on public or private property, but they did comply with all local laws and police orders and stayed some distance away from the funeral service.

Jimbo3 on March 10, 2010 at 10:12 AM

FYI: Here’s a link to the decision of the original appelate

court: http://www.citmedialaw.org/sites/citmedialaw.org/files/2009-09-24-Snyder%20v.%20Phelps%20Appellate%20Decision.pdf

It’s not clear whether Westboro Church was on public or private property, but they did comply with all local laws and police orders and stayed some distance away from the funeral service.

Jimbo3 on March 10, 2010 at 10:12 AM

The issue in the case has nothing to do with permits, or time/place restrictions.

The issue is whether state tort law can be used to obtain relief against someone whose speech caused you injury. The 4th Circuit basically said it could not (with, of course, caveats).

They also said the speech at issue wasn’t really directed at the dead marine or his father – which I find hard to believe reading the facts as outlined in the decision.

I take issue with both findings. If the first finding is correct, then how do “hostile environment” claims survive. most of those claims are based on inapprpriate comments by a private individual. Why does the 1st amendment not protect those comments?

As to teh second finding, I think the Court overstepped its authority in making a finding on a question of fact and overturning the verdict.

I would bet that this case gets overturned, although it will be a narrow ruling. I think there is room for state tort claims based on speech in lawsuits between private citizens. You have the freedom from the gov’t stifling your speech – you do not have the freedom for private consequences for your speech.

If I tell my boss he is an %ss and get fired, I cannot claim “1st amendment”!! If I call an airport and make a bomb threat – I cannot claim “1st Amendment”! If I say sexually harassing things to my secretary, I cannot say “1st amendment”.

Our lives are pervaded with ways in which we are held responsible for our speech at law. To claim that in this instance, the Phelps cannot be held accountable for a state tort based on their conduct/speech is stretching the meaning of the 1st amendment beyond all reason.

Monkeytoe on March 10, 2010 at 11:36 AM

–The First Amendment does allow you to throw insults at people. What it doesn’t allow you to do is falsely shout “fire” in a crowded theatre or to incite imminent lawless action.

Jimbo3 on March 10, 2010 at 9:57 AM

Unless you are a co-worker, or you make the insult while committing a crime (turing it into a hate crime with more severe penalties), or you insult your boss . . .

In fact, it appears there are many situations where the 1st amendment does not protect insulting speech. I guess it depends entirely on whose ox is being gored.

Monkeytoe on March 10, 2010 at 11:38 AM

The First Amendment proscribes state action. How does a law suit for damages involve state action?

I see no reason to conclude that the suit for damages is in any way affected by the First.

I really do think this is an easy case.

Labamigo on March 10, 2010 at 12:28 PM

If I tell my boss he is an %ss and get fired, I cannot claim “1st amendment”!! If I call an airport and make a bomb threat – I cannot claim “1st Amendment”! If I say sexually harassing things to my secretary, I cannot say “1st amendment”.

Our lives are pervaded with ways in which we are held responsible for our speech at law. To claim that in this instance, the Phelps cannot be held accountable for a state tort based on their conduct/speech is stretching the meaning of the 1st amendment beyond all reason.

Monkeytoe on March 10, 2010 at 11:36 AM

You have the right to say those things. In both cases the consequences do not preclude your right.

See that bouncing ball? Follow it.

The Race Card on March 10, 2010 at 2:54 PM

Unless you are a co-worker, or you make the insult while committing a crime (turing it into a hate crime with more severe penalties), or you insult your boss . . .

In fact, it appears there are many situations where the 1st amendment does not protect insulting speech. I guess it depends entirely on whose ox is being gored.

Monkeytoe on March 10, 2010 at 11:38 AM

–The First Amendment doesn’t apply to private actions. Companies have the ability to, and will, can you for a bunch of things, including insults, beligerance, etc. But the Fist Amendment doesn’t apply to those.

Jimbo3 on March 10, 2010 at 3:02 PM

I take issue with both findings. If the first finding is correct, then how do “hostile environment” claims survive. most of those claims are based on inapprpriate comments by a private individual. Why does the 1st amendment not protect those comments?

As to teh second finding, I think the Court overstepped its authority in making a finding on a question of fact and overturning the verdict.

I would bet that this case gets overturned, although it will be a narrow ruling. I think there is room for state tort claims based on speech in lawsuits between private citizens. You have the freedom from the gov’t stifling your speech – you do not have the freedom for private consequences for your speech.

If I tell my boss he is an %ss and get fired, I cannot claim “1st amendment”!! If I call an airport and make a bomb threat – I cannot claim “1st Amendment”! If I say sexually harassing things to my secretary, I cannot say “1st amendment”.

Our lives are pervaded with ways in which we are held responsible for our speech at law. To claim that in this instance, the Phelps cannot be held accountable for a state tort based on their conduct/speech is stretching the meaning of the 1st amendment beyond all reason.

Monkeytoe on March 10, 2010 at 11:36 AM

–It’s very difficult for an appeals court to overturn findings of fact by a trial court. Unless something is grossly wrong, the appeals court doesn’t have any way to know whether the findings of fact are wrong, because the appeals court didn’t hear the case originally. All the appeals court can do is to, in effect, say the law was incorrectly applied to the facts in the record.

–I also think the decision will be overturned in a narrow ruling, or remanded back to the lower courts for handling. That remand could include a direction to consider additional issues.

Jimbo3 on March 10, 2010 at 3:10 PM

Second, the abortion mill protest limitations have more to do with interfering with a legal business and individuals right to personal space privacy than with the First Amendment. Again, the government is not involved.

platypus on March 9, 2010 at 6:14 PM

The Government is always involved when acts take place upon the public way. And as for an individual right to personal space privacy — the question is the extent of a person’s “personal space”.

I think the Westboro people have intruded upon the families’ personal space, so we are in agreement there. But this case is no slam dunk for the anti-Westboro side. There is a fine line between permitted and unpermitted speech, and a right to privacy and a right for individuals to freely assemble upon the public ways, and this case strongly tests those lines.

unclesmrgol on March 10, 2010 at 3:33 PM

You have the right to say those things. In both cases the consequences do not preclude your right.

See that bouncing ball? Follow it.

The Race Card on March 10, 2010 at 2:54 PM

Never confuse ability with right.

unclesmrgol on March 10, 2010 at 3:34 PM

Never confuse ability with right.

unclesmrgol on March 10, 2010 at 3:34 PM

I have not. One of the realities of having rights is that the expression thereof may be challenged.

The Race Card on March 10, 2010 at 3:38 PM

If anyone gets the benefit of the doubt in how the First Amendment is interpreted in this case, it should be the families and the communities trying to protect them, NOT Team Phelps.

smagar on March 9, 2010 at 11:49 PM

While I agree with your sentiment, there is considerable evidence that the Court will find in favor of Westboro

unclesmrgol on March 10, 2010 at 3:39 PM

It’s like the Klan marching through Skokie. It’s beyond odious, but their speech is protected.

The Westboro folks are not, however, protected from the consequences of that speech – whether it’s being the “guest of honor” at a blanket party, or finding out that Jesus meant what he said in Mt 7:21-23:

” 21″Not everyone who says to me, ‘Lord, Lord,’ will enter the kingdom of heaven, but only he who does the will of my Father who is in heaven. 22Many will say to me on that day, ‘Lord, Lord, did we not prophesy in your name, and in your name drive out demons and perform many miracles?’ 23Then I will tell them plainly, ‘I never knew you. Away from me, you evildoers!‘”

skydaddy on March 10, 2010 at 5:27 PM

anyone gets the benefit of the doubt in how the First Amendment is interpreted in this case, it should be the families and the communities trying to protect them, NOT Team Phelps.

smagar on March 9, 2010 at 11:49 PM
While I agree with your sentiment, there is considerable evidence that the Court will find in favor of Westboro

unclesmrgol on March 10, 2010 at 3:39 PM

–The lower appeals court sided with Westboro and voided the original $5 million award. The Supreme Court, in most cases, doesn’t decide to hear a case if it thinks it will uphold what the appeals court did.

Jimbo3 on March 10, 2010 at 5:38 PM

Jimbo3

–The First Amendment doesn’t apply to private actions. Companies have the ability to, and will, can you for a bunch of things, including insults, beligerance, etc. But the Fist Amendment doesn’t apply to those.

Umm, it does apply to private actions if you can be held liable at law for what you did by another private individual, which was my point. If you bring a title VII employment discrimination suit against me based on my use of the racist insults, you are taking legal action against my speech. That was exactly my point. This case is not any different.

Also, I see from your other comments that you pretty much agree with what I have said – that the 4th Circuit inappropriately decided a question of fact and that the Court will overturn this ruling finding that individuals can be held responsible for state torts and the 1st amendment is not some kind of absolute defense.

I think a decision by the Court narrowing the use of the 1st amendment as a shield in private tort actions would be appropriate, or else they need to explain why in some situations you can be liable for your words (hate crimes, discrimination) but in other areas you have absolute protection. The precedent is pretty well all over the place in this area.

Monkeytoe on March 10, 2010 at 7:35 PM

I think the Westboro people have intruded upon the families’ personal space, so we are in agreement there. But this case is no slam dunk for the anti-Westboro side. There is a fine line between permitted and unpermitted speech, and a right to privacy and a right for individuals to freely assemble upon the public ways, and this case strongly tests those lines.

It is not a question of “permitted” versus “unpermitted” speech. that is a question of censorship and/or criminality. Nobody is saying the Phelps clan did not have the right to speak. The issue is are they to be held liable for any injury they caused.

I for one am actually against catch-all torts like “intentional infliction of emotional distress” that have no real meaning. But, the cause of action exists and is defined, and if what the Phelps did meet the legal test and a jury found that the Marine’s father suffered damages, then so be it – the Phelps should be held liable pursuant to the state law.

For instance, I have a right to drive my car. But, if I drive my car in such a way that it injures you, you have a right to seek compensation for my conduct. This is really no different. The 1st amendment should really only apply to the gov’t trying to restrict speech. That is not what is happening here at all.

Monkeytoe on March 10, 2010 at 7:41 PM

Don’t worry about Westboro or the SC decision. The Lord has a way of sorting these things out.

Kissmygrits on March 10, 2010 at 10:00 PM

185,157 current Patriot Guard members nationwide have these LOSERS well handled (with the regular assistance of local LEOs)

No mourning family will EVER be subjected to this despicable bunch.

Patriot Guard

Katfish on March 11, 2010 at 7:40 AM

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