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Fred Phelps, Free Speech, and Ordinary Wit

I have declined to comment on the Fred Phelps spectacle, in part, because the Phelps clan strike me as pathetically ordinary examples of what Jerry Brown's campaign called Meg Whitman.  [Forgive the California-centric reference . . . if you haven't followed that amusing story, I'm referring to an impolite term for "working" women that rhymes with door.]  That is to say, the Phelps' are attention seekers of the lowest sort and, therefore, taking note of them is to do precisely what they want.  Thinking about them makes me feel dirty.  Taking note of them in writing has always seemed to me to be something even worse.  I really don't like gratifying that kind of element.

Having said that and unfortunate as it may be, it turns out that there actually are aspects to the Phelps case that raise important and rarely well-articulated aspects to the whole free speech debate.  Ben Boychuk writes a studied and thoroughly reasoned commentary on the question over at Infinite Monkeys.  He leans heavily on two of his greatest (if idiosyncratic in that combination) inspirations:  H.L. Mencken and Hadley Arkes.  The result is certainly worth a read (possibly, over a drink of something stronger than coffee) and a discussion.  Have at it.
Categories > Courts

Discussions - 10 Comments

I concur with Ben Boychuck, but disent in part with his use of Mencken as a fact pattern which I think is easily distinguishable.

"Is there any real difference between denouncing Catholics "coming out of high mass" and picketing the funerals of dead servicemen because "God hates America" and their deaths are the direct result of Americans' failure to subscribe to the Westboro Baptist theology? Not really, no."

Absolutely, and this makes all the difference for the tort of intentional infliction of emotional distress. Certain situations have long been recognized in state common law as almost automatically allowing what is otherwise a difficult tort to win, namely IIED. If a funeral director or anyone else for that matter mishandles a corpse, if one lies to someone about the death of a person. All these cases recognize that a death and the surrounding process of a funeral is a solemn occasion at which mourners should be free to grieve in peace, without having to confront such odious and offensive messages. Thus, although Phelps may have a First Amendment right to display his odious and offensive signs on a public street or in a public park, he has no right to do so near a funeral, when it is also clear beyound a shadow of a doubt to the semi-conscious observer that the protest is directed at the deceased, or feeding upon his corpse to sound larger themes.

I wouldn't grant IIED to the catholics sueing some yahoo who stood near a church and instructed them on why and how they would go to hell, unless you can involve a corpse, and to be rather flippant about it part of it is because the harm threatened is not imminent.

In my mind freedom of speech is in fact complete. So I do agree with some points made by the ACLU. Still I see no difficulty having complete first ammendement freedom and IIED, or really any other tort that attaches itself.

For example, lets say I dislike Fred Phelps and say on a blog post. I am going to kick your ass!

Well this is protected free speech, it is also potentially assult, except that it is not imminent, so it isn't.

Say I am near his rally, and I yell across the police baricades: "I am going to kick your ass"...It still isn't because I am behind the barricades...

Lets say that shortly after saying this when the police aren't paying attention I jump the barricade and make a mad dash towards him. At some point if he is aware that I am comming for him, my threat becomes imminent and I am guilty of assult. Provided I get to him before the police restrain me, I might also be liable for battery.

Both my assult and battery are expressions of disagreement with his views, and thus protected free speech, but this in no way prevents Phelps from bringing whatever tort claims he has.

This is in part to recognize that all torts and crimes are or can be expressions. For crimes like Rape which express a complete disinterest in the volition of another human being you are punished at least in part for the content of what you are expressing. According to the more poetic hanging judges at least society expresses its disaproval of your expression.

IIED is one of the more difficult cases to prove, and perhaps the original jury amounts were too high.

Also I think the case for the purposes of answering the first ammendment question is moot in the state of Kansas, since that legistlature passed and Kathleen Sebelius signed into law a prohibition on picketing funerals within 150 feet.

The real question is given this persons infamy if he can picket a funeral at a distance of over 150 feet in reliance upon this law, when it is absolutely foreseeable that the spill over effects could still trigger an IIED claim.

150 feet is the distance chosen by the Kansas legistlature at which it is legal and a protected first ammendment right to picket a funeral.

Is this buffer zone distance sufficient? Had Kansas chosen 300 feet would that have been too much to serve a compelling state interest?

The way I see it, any expression goes under the first ammendment, unless it is illegal, and if it is illegal then you have to answer if the restriction is narrowly taillored to serve a compelling state interest.

Thus, rape, muder and the entire Model Penal code passes. In my view all torts pass, but they don't pass automatically, and torts like IIED where the dammage is mental anguish pose difficulty.

From my keyboard I can be a devil and write the most fiendish things, and a law governing IIED which allowed redress for this would be unconsitutional and fail intermediate scrutiny. I kind of think Kansas didn't go far enough at 150 feet, I think Kansas could have gone to at least 300 feet, but I don't think Kansas could have gone as far as a mile. A one mile buffer zone on funeral protests might in the case of Fred Phelps and his not inconsiderable and foreseeable media spill over effects still mannaged some sort of negative impact. So maybe a mile, it is difficult and fact based, and you have to get underneath the form to the intent of the legistlature. Certainly 5 miles would be exceeding things, unless the state has a really good argument.

Does the Constitution guarantee that any group of individuals, for no purpose other than that of drawing attention to themselves, can intentionally take actions that are likely to inflict pain upon other individuals, who themselves have done nothing to offend or affect the first group?

Was that the intent of the Framers?

Or is it possible that a good thrashing inflicted upon the attention seekers might be interpreted as simply another example of First Amendment-protected expression.

Define "pain."

I'm no constitutional scholar, but it seems to me physical pain and suffering falls within the intent of the framers.

Emotional pain is a rather contemporary concept. It is also a rather expansive concept. I do not believe the framers had that in mind.

Provided Phelps operated within the boundaries of existing law with respect to distance and behavior, then he's free to do what he wishes to do. And the rest of us are free to heap ample quantities of scorn and derision upon him and his ilk.

Or is it possible that a good thrashing inflicted upon the attention seekers might be interpreted as simply another example of First Amendment-protected expression.

Traditionally the "thrashing" option, while the police look the other way, has been an effective method of social control. Be careful what you wish for, though, because the tactic could just be easily used against flag-burners and others who engage in unpopular forms of expression.

Alright, just for fun I read the cases to see how my interpretation would differ from what I could pick up in the "news".

So first of all it is a Maryland case, not a Kansas one. This sick guy really went out of his way to target this guy(or did he?)

Most of my argument applies but this is an important fact that could tilt the ballance towards Phelps.

"It was undisputed at trial that Defendants complied with local ordinances and police directions with respect to being a certain distance from the church. Furthermore, it was established at trial that Snyder did not actually see the signs until he saw a television program later [**9] that day with footage of the Phelps family at his son's funeral.

The citation for District Court: Snyder v. Phelps, 533 F. Supp. 2d 567.

The 4th circuit court reversed in Snyder v. Phelps, 580 F.3d 206.

Finding: "(1) although appellants' picket signs, which conveyed messages such as "America is Doomed," "Fag Troops," and "Thank God for Dead Soldiers," were utterly distasteful, they involved matters of public concern, including the issue of homosexuals in the military and the moral conduct of the U.S. and its citizens; (2) no reasonable reader could interpret any of these signs as asserting actual and objectively verifiable facts about the father or his son; (3) the statements were protected by amend. I because they asserted non-provable facts and clearly contained imaginative and hyperbolic rhetoric intended to spark debate about issues that concerned appellants; and (4) an "epic" that appellants posted about the family on the church's website, which was aimed at Catholics, was also protected because it was patterned after the hyperbolic and figurative language used on the picket signs."

In my above comments I mentioned that IIED posed some difficulties. The circuit court said:

"Tort liability under state law, even in the context of litigation between private parties, is circumscribed by the First Amendment. Regardless of the specific tort being employed, the First Amendment applies when a plaintiff seeks damages for reputational, mental, or emotional injury allegedly resulting from the defendant's speech. The United States Supreme Court has deemed the First Amendment defense inapplicable to a state law tort claim only when the plaintiff seeks damages for actual pecuniary loss, as opposed to injury to reputation or state of mind."

Basically the Supreme Court isn't even going to bother doing what I broadly suggested in terms of thinking about a first amendment defense to murder...all criminal law and all torts that are physical or involve pecuniary loss pass muster.

The way I see it the Jury got IIED right on a common sense level, but awarded too much out of gut check sympathy. Synder should have allowed the District court to just reduce the award, but got greedy.

The real question really is IIED. The Circuit court is really good mechanically. They employ a rather novel line of thought I kind of agree with, but which has crazy implications.

"Certain types of speech are protected regardless of the plaintiff's status as private or public figure. Thus, although there is no categorical constitutional defense for statements of opinion, the First Amendment will fully protect statements that cannot reasonably be interpreted as stating actual facts about an individual."

Appart from the fact that Obama is a public figure, who opens himself up to commentary, while Snyder is and was not, this essentially means that the first ammendement protects creative fiction. So if I say that Obama is a Muslim terrorist, that is protected speech. If on the other hand, more in keeping with my writting style I put out a plausible story that claims to be in possession of objectively verifiable facts, the statement is actionable.

So were do rumors about Obama being a Muslim Terrorist come from? From Copyright law which favors creative works, and from first ammendement speech that protects fiction.

I am not making this shit up!

"Rhetorical statements employing loose, figurative, or hyperbolic language are entitled to First Amendment protection to ensure that public debate will not suffer for lack of imaginative expression or the rhetorical hyperbole which has traditionally added much to the discourse of the U.S. The general tenor of rhetorical speech, as well as the use of loose, figurative, or hyperbolic language sufficiently negates any impression that the speaker is asserting actual facts."

Long story short the Supreme Court found that Phelps was too ignorant and hyperbolic to give offense and that the fact that he traveled all the way to Maryland and didn't know anything about Snyder means that the speech wasn't directed at Snyder(and no reasonable person could conclude that it was) . The fact that Phelps was so obviously a media whore, worked against Snyder. In fact states didn't even think of passing laws on funeral protests until Phelps's notorious Church started picketing these.

Mechanically if the speech of Phelps doesn't state actual facts about an individual, then it can't be said to reasonably be directed at that person.

The case went to trial because the court found that "...certain other signs -- such as "Thank God for Dead Soldiers," "Semper Fi Fags," "You're Going to Hell," and "God Hates You" -- created issues of fact for the [**12] jury because they "could be interpreted as being directed at the Snyder family."

The circuit court said this was an error and these could not be interpreted as being directed at the Snyder family.

Thus there is no "intentional" element to support IIED.

Thus without an underlying tort or crime, there is nothing illegal that would restrain free speech.

The Circuit court has a very good argument, but I would say that their analytic reasonable person is overly analytic and overly reasonable.

In this case there was actual harm, and I think there was IIED under Maryland law.

What you also have to realize is that these defendants are all lawyers(one disbared and the other two sanctioned) who are experts in this narrow field in part because all the case law is directed at them.

These folks let the prosecution introduce broad evidence, then at the appropriate time made the right objections to jury instructions. "The court overruled the objections to Instruction No. 21, observed that the constitutional issues were preserved, and gave the instruction to the jury."

In fact they might have baited the jury into hateing them as much as possible because they knew that a larger emotionally charged jury award would be easier to challenge.

It really is the issues briefed and critical objections made that shape the application of mechanical rules.

But this case is more important than folks realize, because the ultimate issue is the extent to which judges being wise create synthetic and overly analytic "reasonable persons".

"The radio host, for example, had claimed that CACI and other defense contractors employed "[m]ercenaries all over the country, killing people," and she had characterized CACI and other contractors as "hired killers." CACI, 536 F.3d at 301 (alteration in original). Judge Michael explained that no reasonable listener would understand the challenged statements to assert actual [*221] facts about CACI, but rather would understand them as "exaggerated rhetoric intended to spark the debate about the wisdom of the use of contractors in Iraq."

I am always bothered by some of what i consider to be bad faith arguments even on NoLeftTurns, but especially in the right and left blogosphere.

I am sympathetic towards, but disagree with the assumptions of the court regarding the "reasonable listener"

I still know folks on the right persuaded that Obama is Muslim, and that the US tortures people. I know folks who believe the worst sorts of things about jews. I don't believe that most people when reading online about a court case actually bother to go to the original document, I am not sure that folks read books and don't just relly upon slanted and juiced up reviews. I think due dilligence is a joke, that human beings are herd animals, and that the wall street crash occured in part because everyone relied upon everyone else who they assumed had done more homework than they had done. I don't think half the people who buy stock listen to conference calls, or look at ballance sheets. I know folks don't read contracts, and even fewer read court cases.

In short I think the courts assumptions about the reasonable listener is flawed and only really applies to persons like myself. Lets say I am not that smart or dilligent, still I am easily in the top 30%. At best this is a 30/70 test...and to make it worse to even be in the 30 you need leisure and time to reflect, study, think and grapple.

In some sense this view of the reasonable person is interesting, at some point people burned by hyperbole will spend time doing research. So there is a positive 2nd derivative to this reasoning.

If there was nothing but good information, you would be lulled into not enough fear. In market terms this 30/70 rule ensures that the VIXX stays high and healthy scepticism is maintained(but only in theory, because America in 2010 is oversaturated with knowledge, and no one has the time for independent fact checking of even a tenth of what they absorb.)

That is I would rather the court addopt the sort of reasonable person test that they do in contracts when they enforce reliance interests and look unfavorably upon "puffery".

Its own precendent on questions of puffery and the reasonable person test that the 4th circuit rellies upon, are just not an accurate reflection of busy, good hearted but unsophisticated americans. If puffery and false advertising wasn't effective, advertisers wouldn't spend big money on it.

You are bombarded with too much not to become overly conservative if you consume too much conservative fare, or over liberal if you consume too much liberal fare, and from there you more to the fringe and proggressively become more inclined to believe the best and the worst in radical fashion.

The fourth Circuit cites to the supreme court rulling that overturned restrictions on corporate free speech, that underplayed a point of agreement between myself and Obama. I agreed with him on that one for the above reasons.

There may be 2nd derivative thoughts(intellectually filtered media) that a reasonable person is able to jump to. When Jefferson said let error of opinion continue as long as reason is left free to combat it, he did not have a proper respect for the extent to which in 2010 thoughts would be unfiltered, because folks wouldn't have combative reason, but a mushier sort of passive receptivity(born perhaps of watching TV instead of reading).

The 4th Circuit makes a very strong case for a certain type of intellectually detached analytic philosopher, but Descartes is not the reasonable person for the purpose of having a reasonable person test. Courts like to clear dockets procedurally and thus love these strict cartesian reasonable persons that let them dispense of cases in summary judgement.

But this is completly bogus.

"Thus, even if the reasonable reader understood the "you" in these signs to refer to Snyder or his son, no such reader would understand those statements ("You're Going to Hell" and "God Hates You") to assert provable facts about either of them."

Example 2:
"Thus, even when the Snyders are mentioned in the Epic, a reasonable reader would understand its contents to be primarily focused on the more general message to which their protests are directed. The Defendants assert in the Epic, for [*226] example, that the Snyders had incurred God's wrath by raising Matthew as a Catholic and allowing him to serve in the military -- assertions a reasonable [**48] reader would take as focused on the Defendants' concerns with the policies and activities of the Roman Catholic Church and the military. Furthermore, a reasonable reader would take as rhetorically hyperbolic a text describing the "United States of Sodom" as a "filthy" country, labelling the Catholic Church as a "pedophile machine," and equating the Maryland Legislature with the Taliban. In that context, the reasonable reader would understand the other assertions of the Epic -- that the Snyders raised their son "for the devil," and taught him to "defy his Creator, to divorce, and to commit adultery" -- as simply "loose, figurative, or hyperbolic language" not connoting actual facts about Matthew or his parents."

A reasonable person would reach this conclusion, but it is a second or maybe even third derivative conclusion. It is a conclusion that could be reached in ideal conditions by a calm person who didn't have to deal with bereavement.

It is almost as if the 4th circuit ruled that bereavement was a hoax...Snyder should be more "reasonable". Look these folks traveled from Kansas up to Maryland to take a stab at dead marines, and his son was that dead Marine.

I say the jury got it right, it is intentional infliction of emotional distress and the 4th circuit improperly used an overly cartesian rational person, but if such cartesian rationality is possible as a permanent state of mind outside a judicial chamber then there is no such thing as the tort of IIED.

My second derivative mind can always escape any feeling of alarm and outrage, and analyze the 10-10 ad as parody. So I understand the mechanical masterpiece that the 4th Circuit created. But I think the rational person test should be first derivative, and IIED recognizes the first derivativeness of rational person, by singling out death for special treatement, because in times of tragedy blood boils and the spirit has shed the rational walls that allow cold calculation and is open to intense pain.

I mean the court recognizes bereavement, and understands the same principle in terms of the distinction between first degree murder, second degree murder, and manslaughter. If you kill someone in the heat of passion you aren't found to meet the mens rea requirement for murder.

In any IIED case you are looking for someone grieving, or in an enfeabled and sensitive mental condition, and IIED is intentionally doing something that because you know of this condition, you know will cause them grief. The requirement of a corpse/bereavement is key. Just as in heat of passion, we aren't allowing the man slaughter charge if there has been a period of cooling off so in IIED we aren't allowing bereavement to last forever. But I think Phelps acted within the window.

I think Phelps as a former lawyer was more than aware that his actions would foreseeably cause intense pain and mental anguish to Snyder. I am not even close to buying his mechanical form over substance mens rea defense. He protested the funeral to cause grief to Phelps, and he probably caused unactionable sympathy grief(because outside the window of bereavement, not specifically targeted, not enough proximate cause...but I think he could foresee this hurt as well) to other fathers who had lost soilders and marines in the war.

To hold for Phelps as the 4th Circuit does is to use the 1st ammendement to gut IIED.

It is unconsionable, if it is IIED then there is no first ammendment protection, in the absence of IIED there is first ammendement protection.

But to employ the rational person test of the 4th Circuit, is to obliterate a legal recognition of bereavement.

It is to say that Snyder who lost his son should be expected to reason to second and third derivative cartesian abstraction, while at the same time holding that a group of lawyers who are experts in the very narrow field of first ammendement funeral picketing, should be held blameless since it was unforseeable that their signs saying "Thank God for Dead Soldiers," "Don't Pray for the USA," "Thank God for IEDs," could ever be seen as directed towards Snyder.

The least bit of legal common sense and analogy to principles recognized in Contracts would hold this one of the dumbest conclusions ever reached by sophistry. That is that following Contract law it seems clear to me that an established principle is to hold sophisticated parties to a different set of rules.

You have the Phelps familly experience as multiple generation lawyers with a monopoly in first amendment funeral picketing cases vs. a bereaving parent that most courts would hold is temporarily incapable of contracting.

It isn't a contract, but the principle of sophisticated parties goes to the mens rea and meeting of the minds and knowledge of what is foreseable as a result.

Another way of putting it is that my accusation of the court employing a 30/70 rule for the rational person test is that they employed a test only applicable to sophisticated parties, and to make it worse applied it to a bereaving parent, while attributing something closer to a real reasonable person test to the sophisticated party. It is ridiculous the extent to which the court was led by formalism, and a prime example of why Contract Law recognizes the principle of sophisticated parties.

So the Supreme Court will overturn the Circuit Court or it will essentially gut IIED as a tort, overturn a recognition of sophisticated parties in contract, strike a mortal blow to recognition of berevement and make a complete mockery of mens rea.

Don you are right that the Framers did not recognize IIED and that it is a newer tort.

But it is a very narrow tort that is hard to prove, and specifically designed for these sorts of cases. This is why before even reading the underlying cases I disagreed with Ben Boychuck.

I want to keep it just as narrow as manslaughter is to murder. It is for cases where someone is in a weakened mental state and another person takes advantage of this vulnerability to twist the knife.

Lets say I come upon a depressed person on a bridge and I tell him his wife is a slut, that he is worthless that he should kill himself.

Now decency might impell me to a moral standard higher than the law, which imposes on me no duty to rescue him. The Law on the other hand doesn't allow me to purposefully make his condition worse.

In fact in some jurisdictions I could be charged as high as second degree murder for his suicide, this to me is partially problematic because I don't know that but for my taunts he would not have commited suicide.

On the other hand I do believe that my example is worthy of IIED, or Intentional Infliction of Emotional Distress.

Now to make the fact pattern more analogous, lets say I get notice of a bridge where suicides occur frequently.

Because I am a member of the Hemlock society and support Suicide I go to the bridge and advocate on behalf of suicide in a non targeted way. I have signs that are general in nature which a clear thinking rational person would recognize as different from the proposition that a particular individual should commit suicide. Say: "There is no God", "Jump already", "Life is worthless", "your wife cheated on you" "you are sucking up oxygen", "Your father hates you", "You never were good at commiting to anything", "No one will miss you".

I then have a blog post that I put up detailing the grizzly deaths of those who chose death.

A familly member of the deceased finds about about me in the media, after he learns of his sons suicide and goes on the internet to find pictures of his son, mingled with a bunch of philosophical gibberish about the existential meaninglessness of life and the political right to die.

The father tries to remmember good things about his son, but remmembers a fight, that like many in the past might have blown over but for the alcohol and encouragement.

The prosecutor says that he can't establish proximate cause for second degree murder, but in civil law you win a massive judgement. Not on the basis that the Hemlock society killed your son, but on the basis that its provocation impacted your bereavement and cut you to the core. That it was foreseable that sons would have fathers, and that they were the proximate cause of this intentional emotional distress.

The Hemlock society counters, Free Speech! Our statements were general, no one in their right mind would think that our statements were directed at specific individuals, they were simply general political ideas that are protected.

The Circuit Court examines each statement and finds that a reasonable person would laugh off the suggestions, that these had no purposeful bearing on your son.

"They find that when examining the signs, that, even if the reasonable reader understood the "your" in these signs to refer to Don or his son, no such reader would understand those statements ("Your Dad Hates You" and "You were never good at commiting to anything") to assert provable facts about either of them."

The same goes with the existance of God, so the court waxes in dicta with a cite to Hume, any reasonable person with a full measure of his wits about him would just shrug and agree, life is meaningless I suppose, you create your own meaning, duh! No reasonable person could think that his son jumped off a bridge because of mere words... Mere words, ha, nothing but a compilation of zeros and ones on the electronic level and composed of 26 odd shaped characters known as letters, that every child in kindergarten knows as the alphabet and plays with in his soup. Words a dime a dozen in my 53 page opinion. Sticks and stones will break my bones, but it was the sudden stop at the end that killed him.

What sort of father can't put on his thinking cap and come to this reasonable conclusion, words are meaningless, and the more meaningless and obviously ridiculous to the enlightened reasonable person the more protected, because as Jefferson said error should be subsidized, to stimulate the public deployment of reason to combat it, and nourish the civic virtue of honesty. And Socrates said something communist about not giving a maniac an axe, but that is because he lived before Paul Bunyan and was greek and un-american.

And think of the poor hemlock society member how was he to know on his tour of bridges that resulted in multiple suicides and spawned a horde of specific legistlation in 40 different states legistlating the proper distance for picketing a bridge, that somehow the stimulus for such legistlation was any sort of pain and public discomfort associated with something as harmless and properly political as the "right to die"?

Give me a break! That is not foreseable, pain? emotions? You want us to hike up our robes and strike an empathetic wise latina pose? The hemlock society guy is the victim here, had his rights darn near trampled on and some crazy prosecutor who thinks words can matter wants to stick him with second degree murder.

Words can't matter because we all know that for a rational person it is just water over their backs, sticks and stones sure those hurt and those torts will survive a first amendement challenge.

This essay is completly fictional, and I reserve copyright in it.

Boychuk is floundering badly there and just incoherent by the time he resorts to trotting out "common sense" as what he no doubt imagines to be his trump card. It's not.

More clarity and enlightenment on the subject can actually be found in one of the comments to his post:

Boychuk fails to note that the Snyders never saw the picketers directly, who were actually kept 1,000 feet away from the funeral itself. (By the way, that law strikes me as about right - close enough to respect the protesters, who wish to scold and warn America about its coddling of homosexuals (surely plenty of conservatives can find common ground with that notion?) and far enough to allow the funeral to take place without interference.)

His argument(s) were weak in several places, but this one really irked me.

"Phelps's broader message may be a sinful and unrepentant nation brings such calamities upon itself. But if you're the grieving family of a dead Marine, why should you have to entertain that idea for even one moment?"

Why not? Is Boychuk now bestowing upon (some of) us the right to not be disturbed or offended? Phelps and his crew offer a lot of Bible quotes to support their views; are Christians considering the possibility that the Westboro take could be right? And seriously, are Phelps' views really so far out there these days? Recall Robertson and Falwell (hardly a small-time religious duo) identifying the 9/11 attacks as some kind of punishment from God for various problems brought about by liberals, pagans, feminists, abortionists, gays, lesbians, and those who "secularize America."

Not to mention the various natural disasters that Robertson (among others) has identified as punishments inflicted upon the various victims.

Their disdain for homosexuals (and typical thought-obsession about gay sex acts) is just a more pure and focused strain than the more polite one often found on the right.

Getting back to the supposed right to never have to confront uncomfortable thoughts or words, or be offended, why should a woman who's going to get an abortion have to see or hear anything that might disturb her? Needless to say, a woman or girl who is already grieving her rape (for example) may well have to run a gauntlet of zealots to procure her legal abortion. (Psst... I'm on the side of the protesters there, too - although I think a 1,000 feet rule might be better in that case, as well)

It's also pretty disheartening that the right's ire for Phelps didn't seem to surface so much back when he and his crew were merely protesting the funerals of (non-military) gays - like Matthew Shepard.

Of course, Phelps and his crew are "attention seekers" - but so are the tea partiers.

It's also pretty disheartening that the right's ire for Phelps didn't seem to surface so much back when he and his crew were merely protesting the funerals of (non-military) gays - like Matthew Shepard.

I can't recall any support for Phelps ever from the right. I do recall a fair amount of dismissal collective eye-rolling when Phelps' name first surfaced and his actions became known. The ire was there.

Plus -- my opinion here -- early on Phelps served the agenda of the media to portray Christianity as the refuge of the unbalanced. To cover conservative dismissal of Phelps would have undermined that effort on the part of the media.

Of course, Phelps and his crew are "attention seekers" - but so are the tea partiers.

As are:

  • Liberals
  • Anti-War Protesters
  • Environmentalists
  • Proponents of Global Warming "Science"
  • Andrew Sullivan
  • Celebrities
  • The Khardashians in all their manifestations
  • Donors who insist on having their names on the building
  • Sports divas
  • Cindy Sheehan
  • Blog commenters

"Or is it possible that a good thrashing inflicted upon the attention seekers might be interpreted as simply another example of First Amendment-protected expression."

State torts remmedies for battery still stand, think of the nursery rhyme, sticks and stones...anything that breaks bones is illegal and constitutional and thus not protected free speech, unless you can get a jury to nulify before the judge catches wind and grants a rule 59 motion

If you have money you will get sued and fare worse on the civil side. If you are poor you won't be able to afford a decent lawyer and you will take more lumps on the criminal side.

In my way of understanding it is an example of first-amendment expression. It isn't "protected" because it is illegal.

Just because something is illegal, doesn't mean it is constitutional, the court applies intermediate scrutiny to the first ammendement. By making battery illegal we are suppressing speech. So it asks: Is the fact that battery is illegal narrowly tailored to serve a compelling state interest. It asks, are there any forms of battery we want to protect, or are there any forms of battery that when the state provides a tort remedy it also goes too far? The clear answer in Snyder v. Phelps, 580 F.3d 206 not to mention other case law is NO!

"Traditionally the "thrashing" option, while the police look the other way, has been an effective method of social control. Be careful what you wish for, though, because the tactic could just be easily used against flag-burners and others who engage in unpopular forms of expression."

Note that if the police look the other way they violate 1983, under an equal protection of the laws constitutional tort and may be liable.

Historically this was passed to mainly to protect blacks in the south, since there was a mistrust of the entire southern legal system to include state courts. Its heyday was the 1970's. Today it much much harder to win a 1983 action, and most are pro se actions by poor criminals arguing police brutality. Federal Courts use civil procedure liberally to grant summary judgement and clear piles of these cases. It could be an actual worry since a court might hold that all reasonable people know cops take donut breaks and you should have burnt the flag while you had police attention. But I think the ACLU would step in for you.

Actually perhaps you could get off in some sense, juries tend to grant a small award to a really unfavorable plaintiff. Juries also have a constitutionally dubious right to jury nullification. In my view Jury nullification is sufficient to assure that the state not go so far that it violates the right of the community to support the expression of tortious or criminal free expression. This is a real minority view. That is I think a jury can find you guilty for murder but chose to pardon you, when the expression of that crime fits with the moral sense of the community. After all criminal law penalties are the expression of the the moral condemnation of society. But this is technically a power reserved to governors in state law, and the president in federal. The tenth ammendment actually prevents the president from pardoning state inmates.

Jury nullification is possible in part due to double jeapardy, but this is the only way.

If a Jury grants a verdict that is too small because the plaintiff is unfavorable, or too big because the defendant is too unfavorable then the judge has to either get the winning party to agree to a lowered settlement or the looser to agree to a raised one or order a new trial. This actually happened in the Snyder case. The court granted at 50(b), and 59(e) motion which is a Civ. Pro motion used to ensure equal protection of the laws. This is why I say the defendants probably tried to be unfavorable to bait the jury into exceeding the tort liability caps, its an easy retrial, and the standard is "objective person"

But the civ pro "reasonable person" is designed for equal protection and judicial efficiency, in particular the latter. It sounds like a diversion but the procedure is important, because that is how you have the judge weighing in. The 4th Circuit reasoning for the dismissal of the case I think was predicated in large part upon the procedure. That is why I say it is a mechanical decision that looks more to form than substance(which is simply a tendency of all Circuit courts)


Don, the list of attention seekers could be pretty long...certainly bloggers and commentators fit in here, but we all assume the risk, as pete said reading a long entry is a charge against your judgment. As I see it the issue for this case is the extent to which freedom lies in the right to disseminate "religious belief" or in the right of the captive listener to be free from unwanted and offensive "religious" advocacy.

Craig, ok fair enough.

"Boychuk fails to note that the Snyders never saw the picketers directly, who were actually kept 1,000 feet away from the funeral itself. (By the way, that law strikes me as about right - close enough to respect the protesters, who wish to scold and warn America about its coddling of homosexuals (surely plenty of conservatives can find common ground with that notion?) and far enough to allow the funeral to take place without interference.)"- I agree with you that the law was about right.

Yeah you don't find that out until you dig into the cases, but they weren't kept 1000 feet away at all times, although the police made a good faith effort to achieve this. This did result in a detour for the funeral procession, and in part due to media attention the spill over effect certainly was felt at and during the funeral and immediately following it.

The key thing to remmember is that Snyder did not invite comment. (Julie invited comment, so the analogy to blogging and commenting is easily distinguishable.)

And in some sense I can sympathize, and agree that in many cases this is just water over the back.

The comment you linked was well written, but it slanted the issue begging the question of "choice" which is at issue in a captive audience.

"He was exposed to their message because he chose to watch television coverage of the funeral -- and the attendant protests -- after the funeral was over."

Well the media event as a derivative product of the protest itself intruded upon the funeral procession, the thousand foot buffer zone certainly was not maintained with regard to the accompanying frenzy, and once your private life is made public, curiousity and alarm with how it is framed in the local and national media takes over.

Did he really have a choice? And what do we expect the rational person(a standard that assumes rather radical free will/detachment) to do in this situation?

To restate the facts as the commentator did is acceptable, but such a restatement belongs in an amicus brief for the appelant Phelps.

"He was further exposed to their message because his family chose to go to Fred Phelps' website and read an "epic poem" that constituted Westboro Baptist Church's commentary on the death of Albert Snyder's son."

Again the question is: To what extent did he "chose"?

I happen to like the commentators use of Holmes and assumption of the risk. Assumption of the risk supposes a certain level of free will.

The contract law equivalent of assumption of the risk is Caveat Emptor. Buyer beware.

But in state tort law, in contract law, and in a lot of other places in law a person who is bereaving is necessarily incapable of contracting. Because he doesn't have the correct state of mind "mens rea" to assume the risk.

In addition in contract law we would certainly contrue the law against the sophisticated party. So again you have three lawyers(in a church that is mainly his extended familly) who are the reason for all the law that has developed in the field vs. a bereaving father.

So you emphasize that the lawyers obeyed the letter of the law. (we can't be sued we relied upon the law!) and you emphasize that the father chose to watch news coverage of his sons funeral, and chose to look up the website of the same group he had no previous contact with(he chose because he couldn't have been made curious, or caught off guard by the attention...that is it was completely foreseeable that some group from Kansas would come to Maryland and draw attention to his sons death?).

All I am asking for is for the Supreme Court to find that the 4th Circuit was too harsh in the standard of rational person(an objective test) they employed to analyse Snyder's claims. Rather they should have followed the lead of contract law, tort law and criminal law which recognizes that an objective person test implies free will, a cooling off period, some familiarity and often times expertise in the field.

If you are looking to use civil procedure for judicial efficiency and to clear dockets, then the easiest way is to employ a hyper rational standard of review and find that "no reasonable juror could find"...

Following the contract law inquiry into free will, due to the abuse of Caveat Emptor by sophisticated parties so called reliance upon the "law"...I find that the Phelps's are sophisticated parties and that Snyder is not.

So I can't apply the same sophisticated party(objective person) analysis to Snyder, as the 4th Circuit did.

Snyder did not invite public comment on his sons funeral, and did not in any reasonable way chose to watch television, or chose to inform himself of this strange group that wrote an essay employing his son's name. He was a captive audience bond up in the manacles of the Phelps debacle.

Furthermore as the sophisticated party Phelps knew that that Snyder was grieving the loss of his son and in a weakened emotional state, and it was foreseeable that the actions they took would cause him emotional distress, so they carefully crafted a legal protest, not simply in wanton disregard for the harm caused to Phelps but in part in reliance upon this so as best to pit certain first ammendment questions against state tort law.

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