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.
Blowback
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Of course that should be allowed, though the rich have more resources to keep the public further away.
dedalus on March 9, 2010 at 3:11 PM
In this case Mark, there’s no room for both. If you say Phelps is “free to say what he wants”, it’s not practical to allow any kind of judgement that restricts that freedom, via suits, fines, or imprisionment. The limits or restrictions on free speech are specific according the Supreme court—-causing personal injury, (yelling fire in a theater where a stampede impales the public), BUT NOT emotional injury. There are other restrictions, such as defamation of character or fraud, but this is not argued in this case. The fact that the protest took place on public property will make a huge impact on the SC’s decision.
Slippery slope here HH. As Ed mentioned:
Your statement that free speech “needs to be balanced” can lead us down the path that, God forbid, if the SC got more liberal judges, the “balance” becomes a matter of personal opinion, which the framers did not intend for this high court—that would allow making social policy through the courts. While I agree with your “emotional” plea for the “respect to the families”, it should not be measured/judged (in this case), in the courts.
Rovin on March 9, 2010 at 3:11 PM
But they weren’t arrested for being disruptive. They’re being sued for IIED.
Proud Rino on March 9, 2010 at 3:12 PM
If Westboro is an Al Gore/George Soros project to make Christians look bad, that could affect whether or not the speech is protected. If it’s disingenuous speech, it doesn’t have any value.
They will need to look into Phelps’ funding to see who is behind this. The funders would be inciters and therefore liable if they contributed funds with conditions.
Buddahpundit on March 9, 2010 at 3:12 PM
Wouldn’t a fight have to actually be possible for that to be true? You don’t even know each other’s real names.
Esthier on March 9, 2010 at 3:12 PM
Like I imagine you are, I’m sick to death of Leftists doing the most despicable things in the world, then claiming some ‘right’ to do it. Then changing the rules later, when their own ways are used in the reverse. Then, it’s suddenly ‘bigotry’ or ‘denial of civil rights’.
Rotten people have right to free speech in the public arena. Such people should be shunned. The Courts aren’t the final arbiter of free speech. The People make the final decision.
Liam on March 9, 2010 at 3:12 PM
It is sad that a sterile analysis based on First Amendment absolutism could lead to such a dramatic incursion on the quality of our daily lives.
There should be a zone of tranquility, of peace, surrounding funerals — particularly military funerals.
It is not a significant incursion on the “expressive” rights of anyone to say that you can’t do the expressing in such a way that it intrudes on a funeral.
VG
Voiceguy on March 9, 2010 at 3:15 PM
Oh, I’m reading your points… problem is that Speech is speech… the venue or avenue of that Speech is immaterial (or at least should be).
If it is protected speech while written, how can it NOT be protected if Spoken? or vice versa…
What if Doorgunner had been sitting next to me when he wrote it… would it then be unprotected fighting speech? Is there now a “higher” standard on speech if its done personaly, vice done at a distance???
I know that some “Courts” have decided that there is somehow a difference, but it makes little if any sense to me…
Speech is either Free, or its not…
Romeo13 on March 9, 2010 at 3:17 PM
“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”?”
It would not be possible to take this sort of case and directly apply it to Tea Party organizations.
The Westboro Baptist Church directly targets a specific type of event that has nothing to do with their message. A non political event targeted by a political enterprise. A funeral of a person that died serving to protect their right to free speech. It is this disconnected targeting that can be applied in this case. Where the public need to be able to bury their loved ones can trump the Westboro Baptist Church’s need to intrude into this public undertaking for first amendment applications. Westboro Baptist Church’s first amendment rights are not violated by simply having them make their protests at some place other than where they want to abuse the added turmoil caused by their intrusion into any families mourning process.
Tea Parties do not use this tactic. They either show up at directly targeted places that are proposing laws they are protesting or they just simply have a protest party with no target at all. Thus, there can be no lawsuit as there is no harm.
The government’s job is to protect citizen’s rights. Citizens have the right to bury their dead, and they have the right to do it in a peaceful way, even if it is in the public view. Westboro Baptist Church has the right to peaceably assemble and petition the government for redress. When the two rights, one which is inherent and one that is enumerated, the court has jurisdiction to determine which right has more bearing in the situation.
An example of an enumerated right and a non-enumerated right in which this is the case. I have the right to bear arms. Private enterprises have the right to state that I do not have that right on their property. Thus, I do not have the right to step onto their property bearing arms. If I walked into that property bearing arms, which way should the court decide?
astonerii on March 9, 2010 at 3:17 PM
BTW, I think they could get an exception, even on federal property. The problem is that that law doesn’t exist, and it’s not up to the Supreme Court to make new laws.
Proud Rino on March 9, 2010 at 3:17 PM
From a physical stand point, if “the right to swing your fist ends at the tip of my nose” (given no issues of self defense), then does the right to say anything end at the deliberate infliction of ‘emotional’ damage?
Does someone have the right to be secure in their own person? Yes. The fourth is a limitation against specific state action, but the right exists independent of that injunction. Therefore any action which removes that security infringes on that right.
If the violation of one individuals rights by another individual results in damages, you have a tort case. So the matter before the court is “Did this cause damage”. A jury decided that it did, to the tune of $5 million.
Fighton03 on March 9, 2010 at 3:17 PM
My biggest problem with them is their total disrespect for God. If you read the Old Testament, when God wanted to punish you for your wicked ways, your armies would be decimated on the battlefield, your women and children would be raped and then dragged off into slavery, your nation and culture would be erased from the face of the Earth. So, if they think the less than 1% of our military force’s deaths and our nation and culture going on as if we’re not at war is an example of God smiting us, then they have very little respect for the Lord Almighty.
Beyond that, if you want to boil the Bible down to two rules, they are “Do unto others as you would have them do unto you” and “Love your neighbor as yourself,” neither of which are on display in their actions at these funerals.
That said, they do have the right to be out there making asses out of themselves.
The proper response to these jackasses is to have our military servicemen and women stand outside their church on Sunday mornings protesting the level of hate coming out of that place. When the money in the collection plate dries up, they won’t be able to afford any more of their little “trips.”
Kafir on March 9, 2010 at 3:18 PM
There are state laws that regulate the time and place of funeral protests. See below. The last law was passed after the time of this protest and would probably be upheld because it is limited and targeted in its application.
In response to the protests conducted by Westboro members at Indiana funerals, a bill was introduced in the Indiana General Assembly that would make it a felony to protest within 500 feet (approximately 150 meters) of a funeral. The bill provides penalties of up to three years in prison and a $10,000 fine for those found to be in violation of the law. Shortly before this bill was signed members of the church had threatened to protest in Kokomo, Indiana, at a funeral service that was being held for a soldier who was killed in Iraq. On January 11, 2006 the bill unanimously (11-0) passed a committee vote,[71] and while members of the church had traveled to Kokomo to protest, they were not seen during or after the funeral service.
South Dakota adopted similar legislation. WBC has expressed its intention to contest such laws, and if victorious collect damages while the Phelps Chartered law firm collects attorney’s fees under the Civil Rights Attorney’s Fees Award Act of 1976.
On 23 May 2006 the state of Michigan banned any intentional disruption of funerals within 500 feet of the ceremony. Violating the statute would be a felony, punishable by up to two years in prison and a $5,000 fine for the first offense and up to four years in prison and a $10,000 fine for a subsequent offense.[72]
On 17 May 2006 the state of Illinois enacted Senate Bill 1144, the “Let Them Rest In Peace Act”, to shield grieving military families from protests during funerals and memorial services of fallen soldiers. A first time violation of the Act is a Class C misdemeanor, punishable by up to 30 days in jail and a $1,500 fine and a Class 4 felony for a second or subsequent offense, which is punishable by one to three years in state prison and a fine of up to $25,000.[73]
On 29 May 2006, President George W. Bush signed into law the Respect for America’s Fallen Heroes Act (Pub.L. 109-228), prohibiting protests within 300 feet (90 m) of the entrance of any cemetery under control of the National Cemetery Administration from 60 minutes before to 60 minutes after a funeral.[74] Penalties for violating the act are up to $100,000 in fines and up to one year imprisonment.[74] The bill gardnered overwhelming bipartisan support in Congress with a 408-3 vote in the House, with 21 not voting, and a unanimous vote in the Senate.[74]
Jimbo3 on March 9, 2010 at 3:19 PM
Another example of this. I have the right to free speech. The owner of the web site has the right to determine if I get to use that free speech here. If they choose to ban me for exercising my speech, should the courts force this site to reinstate my banned account?
astonerii on March 9, 2010 at 3:19 PM
–This website is private property. Summit can do what it wants and you have no say so in the matter. It’s the same situation with owners of almost all private property.
Jimbo3 on March 9, 2010 at 3:21 PM
This website is not public property.
Proud Rino on March 9, 2010 at 3:21 PM
I understand that. I wasn’t assuming they’d make the law, though they would be able to decide if it’s Constitutional.
Esthier on March 9, 2010 at 3:22 PM
Where is the ACLU ? Is this group not persecuting some one based on their sexual preference ? Can groups of people go to a gay persons wedding or funeral and do this ?
Protest ? sounds like they are celebrating the deaths .
It’s shame , if they are protesting the war why not the recruitment center, Pentagon, or the White House ?
Does this mean that groups of people can disrupt a wedding ?
If we use this logic , then no public or private event is safe from protests. protests that may or may not have anything to do with the event .
I think the bikers should just take care of this group and be done with it
Seeme like they could be arrested for parading with out a permit ?
ELMO Q on March 9, 2010 at 3:23 PM
In case no one has noticed, since this case, (and Phelps vile disruptions at our fallen’s funerals), there has also been a group of veterans and concerned citizens who now join in the “right of free speech” and show up in mass at these Phelp protest with a strong emphasis on intimidation—with a “fight fire with fire” stance. Phelps and his cronies have complained that their rights have been violated, yet no court has seen fit to hear their pathetic argument. There is your balance highhopes.
Rovin on March 9, 2010 at 3:24 PM
If these laws are Constitutional, why aren’t they being passed everywhere? This just seems very common sense.
Esthier on March 9, 2010 at 3:25 PM
You focus on rights.
But what about common decency, which you seem to ignore for your ‘rights’? Why protest Bush at a soldier’s funeral? That protest was totally mis-aimed and -guided. If you don’t like Bush, go protest Bush at HIS place, not at the funeral of a person who made the Ultimate Sacrifice. You and your ilk think you’re hurting the ‘heartless’ Bush by that? No, you’re piling hurt on a family that suffered a horrible loss.
You are such a narrow thinker, so absent human emotion though you claim such. You really have none. Well, MAYBE excepting serial killers about to be executed for their crimes. I’ve seen your kind: You might protest the execution of a serial killer, but it’s okay to denigrate the death of a soldier.
Your balances, whether you believe it or not, are reversed.
We’re not the people who have problems. Grieving families aren’t the problem, engendering protests.
No-YOU who protest and those who back them are the awful people. You all should be shunned. You have your rights, but your actions don’t make you right.
You should be shunned. You should keep your right of free speech, but remember everyone else has right to walk away from your vile screeds.
Liam on March 9, 2010 at 3:26 PM
Except for abortion.
Liam on March 9, 2010 at 3:27 PM
Hmmm…. thinking on this a bit…
Does it not take like 4 Supremes to decide to hear a full case?
And as the penaltys and case were dismissed in the lower court, and he is suing to reinstate… it does not look good for a “strict” Freedom of Speech interpretation…
Romeo13 on March 9, 2010 at 3:28 PM
Yes, but that’s how we (aka – normal people) feel about funerals. If the left wanted to create tranquility zones on college campuses or near abortion clinics or near any place they feel is off-limits to any kind of opposing speech or viewpoint, then that’s where this gets very dicey. Yes, to us, a college student center does NOT hold the same meaning or reverence as a military funeral, but it does to a leftist. If everyone starts making exceptions for unpopular speech, then we’ll reach a point where there is no speech at all. Which, I’m sure, President Zero Chavez would appreciate…
joejm65 on March 9, 2010 at 3:28 PM
Discover The Networks:
RadClown on March 9, 2010 at 3:28 PM
I say try the protesters on TERRORISM charges !!!
A couple of years in GITMO with no hope for a trial would end this kind of thing rather quickly ,after all they are using their political views to cause harm to others . Cyber attacks could be terrorism why not this .
I would like to see these idiots protest at a 1% MC members funeral , that would put an end to this right quick .
This is a classic example of what is wrong with America , common sense no longer prevails and the Constitution is being assaulted, bent and broken but a whole set of people the founders would have not allowed in this country
ELMO Q on March 9, 2010 at 3:28 PM
Some organizations threaten to sue/sue protestors (or people on the other side of an issue) who contact public officials, write letters or try to influence public opinion on an issue. The idea is that the cost of the defense of the lawsuit shuts up the critism. Many states have adopted laws that try to minimize the effects of those lawsuits:
http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation
Jimbo3 on March 9, 2010 at 3:29 PM
Isn’t that the topic?
Esthier on March 9, 2010 at 3:29 PM
Obviously they shouldn’t be doing this. The whole issue here is whether they’re legally allowed to do it. Just because something is legal doesn’t mean it’s good, just because you can doesn’t mean you should.
Proud Rino on March 9, 2010 at 3:30 PM
I wish I could help you out further, man, but I dont know how else to phrase what the law is.
“Balancing” has been the way of the nation since the beginnings of the nation, the balancing of rights against public interest. The rational behind the fighting words exception is pretty simple, people have a right to conduct their daily business in peace, relatively unmolested. The government can restrict your speech rights for the purpose of preserving public peace. It is a very high bar, the Klan is allowed to peacably assemble so long as they do not have signs telling the “N-words to go back to Africa” or as long as they are not burning crosses in black peoples yards.
Squid Shark on March 9, 2010 at 3:32 PM
–I think they probably are consistent with the US Constitution. It may not be a big enough issue in most states to pass a law. It could also be that some state constitutions provide greater protections than the US Constitution does.
Jimbo3 on March 9, 2010 at 3:32 PM
I just quickly read this and did not read the comments, but a thought comes to mind:
The first amendment is not meant to be protection against a civil lawsuit for some form of tort. I don’t necessarily agree with most causes of action that have been created by the Courts – such as intentional infliction of emotional distress – but the cause of action exists. If the actions of Phelps met the test for that cause of action in that state, and a jury found he had committed the tort, the 1st amendment has no relevance.
the 1st amendment is about gov’t restricting speech. It is not a sheild to protect you from your actions when a fellow citizen sues you.
The fact that the 1st amendment is even mentioned with this case is silly.
Monkeytoe on March 9, 2010 at 3:32 PM
But you’re okay that they do. Right?
Liam on March 9, 2010 at 3:33 PM
So, we still have Democratic Klan members here in Jacksonville. That does not mean Soros is funding him or that he is part of some eeeeevil Dem conspiracy.
Squid Shark on March 9, 2010 at 3:34 PM
Proud Rino on March 9, 2010 at 3:34 PM
“This website is not public property.”
“–This website is private property. Summit can do what it wants and you have no say so in the matter. It’s the same situation with owners of almost all private property.”
Is it now? Seem very public to me. I can come here, anyone with an internet connection can come here. Most of the wire and fiber optics cables that are used in order to access this are laid down on public land. Any over the air transmissions for internet access go through publicly controlled airwaves. Therefore, there could come a time when those who are on the side of socialists will try to force sites like this to allow any and all people to have the ability to post. That is my general argument. I agree, they own it, they have the right to kick me out. Just like I think that the $5M judgment should stand, and those who want to abuse a right by interfering with some other people’s rights should be forced to pay it.
All funerals, with exception to national ones are performed on private land. The people buried there own that piece of land. They have ownership rights. Cities and states have the right to decide when and where protests happen. Also, most dwelling areas have laws that determine when another land owner is intruding into another land owners rights as pertains to lighting, sound and other nuisances. Also, as others have said, people do not have the right to cause harm to others, regardless if it is public or private lands.
As I said, when one persons non enumerated rights, as is the case of the ownership of this website is considered. And another person’s enumerated right, which is my right to speech, come into conflict, then the court system gets to decide situation by situation as to which right holds precedent. There are correct sides the court can be on, and then there could be wrong sides. It is not in the realm of impossibility that the courts could swap the precedence as Roe V Wade is concerned.
astonerii on March 9, 2010 at 3:35 PM
Ed, I agree with your points about speech and I hesitate to support any hindrance of speech. That said, if the Federal Government can restrict public access to public property (which it does throughout the nation and particularly in D.C.), then I can’t think of any reason the wackos can’t be kept a minimum distance from a funeral. It’s listening to wackos like those low-lifes that reminds us of the decency of most people.
Problem solved.
orlandocajun on March 9, 2010 at 3:36 PM
Well, they could be choosing to hear it just to settle the matter.
I don’t really see a problem there. Protesting causes a public disturbance, and even when going to Washington, you have to get specific permission to protest. Just because there are restrictions on where you can practice free speech, it doesn’t necessarily mean you don’t still have free speech.
Esthier on March 9, 2010 at 3:36 PM
You are clearly an idiot.
Child porn is not considered “speech” And there is always a state secret exemption.
Why do you leftists hate free speech? Don’t like challenges to your authority?
rbj on March 9, 2010 at 3:36 PM
So then there are content restrictions on speech. That’s not what you said earlier.
Proud Rino on March 9, 2010 at 3:38 PM
These people are a reason my husband along with millions of Patriot Guard Riders are at the funerals of our fallen to put a barrier against these gosh horrible people at funerals. Our military deserves our Republic’s respect no matter what the 1st lets a group of people try to make them out of. My faith says, God will deal with these people!
L
letget on March 9, 2010 at 3:39 PM
GASP! Are you actually admitting that ‘free speech’ doesn’t mean you can say anything, anytime, anywhere?
Dark-Star on March 9, 2010 at 3:39 PM
Irt is considered speech, just, not protected.
Squid Shark on March 9, 2010 at 3:39 PM
OT: Hatch: Biden Gambit Will ‘Blow Up the Senate’
“Let’s face it — if they’re going to play this kind of game then we will make sure they have one heck of a rough time from this day forward. There are all kinds of ways we could shut down the Senate, and I know them all.”
http://tiny.cc/htmcU
joejm65 on March 9, 2010 at 3:39 PM
The topic is rights, yes. But in any topic of rights comes the corollary: Responsibility. That, in my mind, is what’s most important.
There are times when my rights cross into those of another Citizen. If I don’t like the War on Terror, am I not also responsible to leave alone those who grieve for loss of one of their own, that they may enjoy their rights?
We are always focused on ‘rights’, but who teaches personal responsibility? I was was taught Civics: Yes, I have my rights but so does everyone else. If we’re absolute about rights, we become overbearing and lose sight of our Fellows.
Wise handling of our responsibility helps maintain our rights. Otherwise, we can all too easily become like Keith Olbermann, who seems to show no respect to anyone at all.
Liam on March 9, 2010 at 3:40 PM
Proud Rino on March 9, 2010 at 3:41 PM
Maybe so, but this is about what the Supreme Court will decide, not what you think is important.
Proud Rino on March 9, 2010 at 3:42 PM
I’m not buying the “just following orders” line. Even if it weren’t an all volunteer army, people are responsible for their government. That’s why we are stuck with ObamaReidPelosi right now.
I can’t read one word of this without remembering that any restrictions that are permitted to be imposed on the Westboro will be slapped on any pro-file, anti-Obamacare protest in a heartbeat.
Free speech means free speech. And that is the cornerstone of democracy.
pedestrian on March 9, 2010 at 3:42 PM
I just read the 4th Circuit’s decision. I cannot imagine that the Supreme Court will not overturn it. The 4th Circuit goes out of its way to decide questions of fact, which were the proper province of the jury, in order to overturn the jury verdict. And, I think it takes too broad a view of what the 1st amendment protects in terms of citizen versus citizen lawsuits.
I think the Court will overturn on both grounds and set some new precedent that the 1st Amendment only protects against government restriction of speech.
Monkeytoe on March 9, 2010 at 3:42 PM
Ed,
I agree with you mostly. Definitlely Free Speech should not give one the right to go and say anything at anytime. The emotional distress is easy and while I don’t like the terms “hate speech” or “hate crimes”, this certainly seems to fall into that area.
My other point is that while a funeral is certainly held in a public place, it is a very private matter. You have one chance to bury your loved ones and I think you could argue that the audience at a funeral is a captive audience, that really does not have the freedom to “leave” or not listen to the hate being spewed their way.
b4itsover on March 9, 2010 at 3:42 PM
So noted. Just trying to get to know what’s in your head, to glean a better view.
Regards,
Liam
Liam on March 9, 2010 at 3:43 PM
Phelps is a Democrat who ran for political office a few times and worked on Al Gore’s presidential camapaign.
The one heading up the protests is his daughter, though he started the whole thing.
Several family members are lawyers specifically for the purpose of suing anyone who opposes them.
This is an extremely creepy family that lives on hate. Google them and read their history. You’ll feel like you need a shower.
If the Phelps think protesting homosexuality is worth all the energy they put into it, fine. Protest away in an appropriate place, like the steps of city hall, Liberty Park or whatever streetcorner they find appealing.
I don’t believe intentionally inflicting emotional distress on grieving people constitutes political speech. Disrupting anyone’s funeral, for any reason, is wrong.
single stack on March 9, 2010 at 3:44 PM
Not until these idiots come through their town anyway. I’d be interested to know what states might say on this issue.
Esthier on March 9, 2010 at 3:44 PM
That’s a cop-out argument. The First Amendment applies to civil law as well. The government can’t rig the tort system such that it accomplishes the same goal towards which it’s forbidden. Otherwise our constitutionally-guaranteed rights would be meaningless. Imagine, for instance, that California passes a law allowing those distressed by the knowledge that their neighbors have firearms in their homes. How long would it be before every gun-owner is sued into submission?
Even though in this case most of us here are on the side of the aggrieved, it doesn’t change the basic logic that any positive right entails a diminishment of the liberty of others. Fallen soldiers certain deserve dignified funerals, but are they and their families entitled to one? The distinction is important. The former judgement rests upon the values of the community, whereas the latter is affirmed through the State’s monopoly on violence. Making a moral judgement on a given situation is quite different from granting the government the power the prevent the said situation from arising.
year_of_the_dingo on March 9, 2010 at 3:45 PM
Best idea here.
Phelps and CO are specifically protesting using the most hateful speech possible in order to get standing to sue others who attack or get in their face BECAUSE of the fighting words they use. They truly don’t believe they will come to any real harm because the cops will protect them. The Navy sent out messages to us informing active duty personnel to avoid these protests because the Phelps could sue the government if any Navy presence was viewed in response to these protests. The Phelps’ have already successfully sued several civilians for damages and you don’t really want to be the one they turn their legal eyes on, because they will come after you.
That said, there is also the fact that they haven’t truly been bloodied yet. Phelps is an old man and his kids are usually the ones holding the signs. If he or his kids were to finally accost someone who couldn’t hold back, and he or his grown kids truly got hurt or killed, Phelps and Co would pretty quickly lose interest in these protests. A destitute homeless bum who slaps them around and has no pockets to drain is about the only way they would ever be physically stopped. Or for a state to spedcifically write a law targeting Phelps. (I’m a little distressed that someone hasn’t used the IRS to investigate the church’s tax exempt status and put some pain where it will truly hurt them, in the pocketbook.) Because that is ALL this is really about. Money for the Phelps and their kin. They don’t really have a religious bone to pick with anyone, or why pick on the Army?
Anyway, death can’t come soon enough to this old jerk and his kin. I’ll shed not a tear at all the day a house drops out of the sky and smashes them flatter than a pancake.
Subsunk
Subsunk on March 9, 2010 at 3:48 PM
Except those in Flag Draped Coffins, not known to often walk anywhere.
Agreed.
Maquis on March 9, 2010 at 3:48 PM
Sure, but I’m not convinced I want to have this discussion. I’m assuming everyone here agrees that these people are scum. I’m even open for a quick banning of anyone who doesn’t.
I accept that people like that exist. I just don’t want knowledge of that put in front of me.
Esthier on March 9, 2010 at 3:48 PM
And I believe there’s a law that says that your speech can be so outrageous as to provoke an immediate and violent reaction. Such as a broken nose.
Sounds like a win-win to me!
GarandFan on March 9, 2010 at 3:48 PM
You can’t ban one side of an argument. For instance, you can’t ban “God wants US soldiers to die” signs, but allow “Thank God for US soldiers” signs. That’s a content restriction.
You would do well to read up on First Amendment law. Starting with these series of posts:
http://volokh.com/tag/snyder-v-phelps/
rbj on March 9, 2010 at 3:49 PM
I know the adage: “The Constitution isn’t what it is, it’s what the Court says it is.”
In my mind, the right decision is that people can protest, ugly as it might be. I don’t like that in the least, but that’s a price of liberty.
The right alternative, in my head, is that such people be shunned by the Populace, if the People feel such.
Maximum liberty, all around.
Liam on March 9, 2010 at 3:49 PM
People arguing about time, place and manner restrictions are missing the point in this court case.
This is not about the gov’t restricting speech in the traditional manner. Instead, there is some precedent that the use of state tort laws by a private citizen to sue another private citizen somehow runs afoul of the 1st amendment. I think such precedent is nonesense, but it is out there.
The 4th Circuit in this case found that Phelps’ speech was not individualized to the fallen Marine or the father and that it was not a proveable claim (i.e., defamation) and therefore the Intentional Infliction of Emotional Distress claim was barred by the 1st amendment.
However, to find that – the Court had to make findings of fact that clearly the jury disagreed with. And, the “facts” they found were not so clear on their face that a court could find them as a matter of law, so I believe the 4th Circuit overstepped its authority in overturning the verdict.
Also, I would not be surprised if the Supremes decided that the first amendment does not protect individuals from lawsuits by other individuals. That is where the idea of responsibility comes into play. Yes, the Gov’t cannot stop you from engaging in this speech because of the 1st amendment, but you can be held liable under state tort law if your actions injure another person.
I think that would be the only reasonable outcome. The first amendment is only meant to keep gov’t from interfering in speech – not to protect people from their own bad actions.
Monkeytoe on March 9, 2010 at 3:50 PM
Sure, but I’m not convinced I want to have this discussion. I’m assuming everyone here agrees that these people are the lowest of the low.
I accept that there are people who’d disagree. I just don’t want knowledge of that put in front of me.
Esthier on March 9, 2010 at 3:52 PM
Yes it is, that’s all correct. But state secrets are content, too, and those are restricted from speech. Obscene materials are content. That’s restricted.
Proud Rino on March 9, 2010 at 3:53 PM
Seems to me to be pretty simple.
The speech itself is not criminal. The consequences, on the other hand, are Westboro’s to bear. In other words, there is no 1A defense to inflicting calculated emotional distress such as this. Westboro isn’t in trouble for *what* they said. They are in trouble for what they infliced *by* saying it.
JohnTant on March 9, 2010 at 3:53 PM
I agree 100%. It’s obvious that these people want their names in the paper. I wish we’d stop giving them the satisfaction.
Proud Rino on March 9, 2010 at 3:54 PM
I always suspected the Westboro folks could be taken down by the “Fighting Words” doctrine, which is not protected speech.
John the Libertarian on March 9, 2010 at 3:55 PM
I don’t want to see a lot of things, either. Like a headline I stupidly linked to about a puppy beaten with a snow shovel.
I can’t imagine hurting an animal like that. I’ll spare the details and hate what I read. The puppy is hurt but he’s alive and has many people who want him. God provides (my personal belief)
I have a whole of rights, just as I want others to have all I have in that vein. But I’m tired as hell of hearing about rights without personal responsibility.
The schools have taught about rights, but it seems they no longer talk about responsibility.
Liam on March 9, 2010 at 3:55 PM
Yes, if the gov’t passed a law that was clearly meant as an end-around, it would likely be unconstitutional. But, that does not mean that some speech does not lead to liability.
For instance, if you use the word “N…..” to describe a black person, and you are that person’s supervisor, the 1st amendment will not protect you. Isn’t that using tort law to restrict speech? I could give you a million other examples.
The tort in question here is Intentional Infliction of Emotional Distress, which is actually a court-created (common law) cause of action. And, in most states it is a pretty narrow and strict cause of action. Meaning, that it is not likely to apply in most scenarios.
Monkeytoe on March 9, 2010 at 3:55 PM
Got your back on that one!
Liam on March 9, 2010 at 3:56 PM
Yes. Everyone is. No exceptions.
single stack on March 9, 2010 at 3:57 PM
Dang.
That’s fact.
They’d have to understand the concept first.
Esthier on March 9, 2010 at 3:57 PM
It’s ok to protest in the face of the grieving father of a serviceman, but not ok for a corporation to advocate for a candidate for public office.
I’m sure that’s what the Founders had in mind.
hawksruleva on March 9, 2010 at 4:01 PM
In a world without the Majesty I know, it won’t happen until the Second Advent.
This planet–religious belief or not–is getting truly uglier. And I aim that statement at liberals–it all IS becoming more horrid, and so many liberals are okay with this.
It’s not because of conservatism, but by you–you liberals.
Liam on March 9, 2010 at 4:02 PM
Enough with this free speech cr*p. Scalia carries a garotte and Sotomayor has to have a switchblade hidden somewhere in her robe. She is Puerto Rican, ya know. Garotte a few, slice up the rest, and problem solved – no more of WBC disrupting funerals.
Blake on March 9, 2010 at 4:03 PM
Are you talking to me?
Esthier on March 9, 2010 at 4:05 PM
Good point.
Blake on March 9, 2010 at 4:05 PM
You have the right to free speech, the right to harass? Nope.
Protest all you want, using your protest to cause pain? Jail time.
Talk all you want, force others to hear you? Nu-uh.
Speakup on March 9, 2010 at 4:05 PM
And of course, you can expect to see pro-homosexual groups show up to protest about the same time “women’s groups” star protesting the treatment of Mrs. Palin…
oldleprechaun on March 9, 2010 at 4:06 PM
I have a friend who actually uses this fact with unruly customers. If they get loud or rude, he asks them to leave. When they say “it’s a free country, I can say what I want”, he responds that the store is private property, and that as one of the store’s stockholders, he has the right to evict people for any reason.
Of course, Obama destroyed the link between stock and ownership, so that argument may not work anymore.
hawksruleva on March 9, 2010 at 4:06 PM
Oh, no! Sorry, hon. I started talking to you and went into a general rant that has nothing to do with you. My apologies for being unclear.
Liam on March 9, 2010 at 4:07 PM
Constraint on speech should always be the last resort. In the classic scenario of “shouting fire in a crowded theater,” there is no other solution other than an outright prohibition. In the present case though, without the urgency imposed by the human instinct to survive, can one argue that there are no other remedies? If a thousand strangers appear at a soldier’s funeral to tell his family of their appreciation of his heroism and sacrifice, would that not compensate for the antics of a few idiots?
year_of_the_dingo on March 9, 2010 at 4:07 PM
Everyone forgets about what comes before the Bill of Rights…
We have the ultimate right, above all others for “general Welfare”, we can live in peace, without the anxiety of someone harassing us. That is what the constitution was created for, so we can live in peace…the the latter enumerates and helps define how we do this.
Freedom of speech is to create “general welfare” and “domestic Tranquility”, not destroy or disrupt it.
welfare n. 1. health, happiness, or prosperity; well-being.
right2bright on March 9, 2010 at 4:09 PM
Sorry. I spoke too soon. THIS is the best idea I’ve seen. Let them protest with the Bandidos or Deguellos riding guard at the funeral. Phelps daughter would likely never be found. Case closed. Next problem?
Subsunk
Subsunk on March 9, 2010 at 4:12 PM
You presume too much. The family thrives on shame.
Your viewpoint is inexcusably marred.
There’s a reason rights to religion, speech, press, assembly and petition are outlined in the First Amendment. They are foundational — to be left unmolested.
Your need to “balance” it against a non-existent “right of the families to bury their loved one with respect” pretty much sinks the entire Bill of Rights.
The offensive group and target are irrelevant. Should death-penalty supporters be kept away from executions? Don’t mess with
Texasthe First Amendment.The Race Card on March 9, 2010 at 4:12 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
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
Let us all here solemnly resolve to engage in ‘jury nullification’ if we are ever called to jury duty for someone accused of assault and battery on one of these protesters. Problem solved.
Knott Buyinit on March 9, 2010 at 4:22 PM
As a compleat conservative, there’s no way I’ll go for that idea.
Case-by-case.
Liam on March 9, 2010 at 4:27 PM
I have not been on for awhile – got a job working to get true conservative candidates elected in MA – and I simply do not have time to read all the comments. I”m sure someone already said this but –
Protesters at abortion clinics must keep a certain distance between themselves and the entrance to the clinic – which could be hundreds of feet based on the property – all to protect the safety of staff/customers. The irony that the same is not policy at funerals for military personnel is, unfortunately, not funny. We live in a horrible world.
I would have sued too – if only to cause headaches.
gopmom on March 9, 2010 at 4:32 PM
It’s cool. That’s what I was assuming, but I wasn’t sure if you just had no idea who I was and thought I might be liberal.
I appreciate the apology though.
Esthier on March 9, 2010 at 4:34 PM
I never go for the claim of “inflicted emotional distress”. Yes, these people get to make as big and obnoxious spectacle of their lunatic selves anywhere they want as long as they aren’t breaking any noise ordinance or trespassing laws.
Count to 10 on March 9, 2010 at 4:35 PM
Now read the preamble, that my previous post quoted.
You will see, above all the “rights”, we have the right to live in peace, without harassment.
The bills are there to ensure that, not bypass that ultimate right.
Freedom of speech, certainly, but not to destroy the general welfare of an individual.
Too bad people only focus on one part of the constitution. You have to study it as a whole, not piece meal…the bills are there to support the opening statement, govt. can’t harass, people can’t harass…we have freedom of speech, and freedom from speech.
right2bright on March 9, 2010 at 4:43 PM
I’ve been reading you a long time. I won’t always reveal, but I tend to know with whom I speaking. As, I assume, you’ve seen me light off on liberals. I’m merciless in calling them on their own stuff.
My bloodsport…
Liam on March 9, 2010 at 4:44 PM
I would say protect the first amendment. The solution to people like Phelps is to counter protest. I think everyone here would be happy to lend a hand and protect a fallen soldiers funeral by participating in a counter protest; I certainly would.
bitsy on March 9, 2010 at 4:48 PM
The Law isn’t without common sense. If you use the N word in the person’s face, it’s prima facie evidence that you intent to insult that person–or if you will, cause emotional distress. If you make a comment concerning a negro who does not speak with a negro accent, thinking it was spoken in convince, then we’d judge the situation differently. In a word, intent matters. That’s why man-slaughtering carries a more severe penalty than murder.
I agree with you but here’s the problem: The intent of Phelps & Co. clearly isn’t to cause emotional distress among the family of fallen soldiers. What these people do isn’t done out of malice, it’s done out of utter complete stupidity. You have to admit that they aren’t causing emotional distress because they somehow hold a grudge against the family or against military personnels in general. They’re doing what they’re doing out of a sincerely held, though completely stupid–belief. The state can’t punish people for that.
year_of_the_dingo on March 9, 2010 at 4:51 PM
I often do, but some names are way too similar. I’ll admit to making the mistake a time or two, but I usually go for subtlety for plausible deniability and just because that’s my prefered writing style.
I have. And yeah, that should have been a clue that you weren’t tearing into me. :)
Esthier on March 9, 2010 at 4:54 PM
Faulty argument. First ALL rights exist per the Ninth. The Bill of Rights doesn’t grant rights, it restricts state action.
As for your balancing argument, isn’t that the entire purpose of tort law?
Fighton03 on March 9, 2010 at 4:55 PM
For whatever it’s worth, I know you well enough by your posts.
Got your back, Esthier. *S*
Liam on March 9, 2010 at 5:01 PM
–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
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