Protecting the odious

by fiddler

The US Supreme Court issued a majority opinion today that the homophobic and hostile Westboro Baptist Church is covered by the First Amendment when its members picket outside funerals; this is based on the grounds that the substance of the protests could be considered commentary on national matters.

"As a nation we have chosen...to protect even hurtful speech on public issues to ensure that we do not stifle public debate," Chief Justice John Roberts wrote for the court. "That choice requires that we shield Westboro from tort liability for its picketing in this case."

The Westboro church believes that any misfortune America suffers is divine punishment for the nation's failure to follow the sect's doctrine, which condemns gays, Catholics, Jews and others. The tiny church, whose membership largely consists of the founder's family, pickets military funerals to get attention for its message.

This majority opinion stretches the First Amendment until it squeaks at the edges, to get it to cover hate-mongering and homophobia because those attitudes are associated with a presumed theological critique of national affairs. Eight of the nine justices concurred in the majority opinion, though Justice Stephen Breyer wrote a separate opinion partially modifying his concurrence. Justice Samuel Alito dissented, in a separate opinion that pointed out relevant issues that had not been considered by the court.

Immunizing Westboro from tort action means that the plaintiff, Albert Snyder, cannot sue in civil court for damages related to Westboro's picketing at the 2006 funeral of his son, Lance Cpl. Matthew Snyder. An earlier Pennsylvania court decision that slapped Westboro with a $10.9 million judgment for the Snyder funeral protest was overturned on appeal before the case arrived at the Supreme Court.

From the ABC News article:

Matthew Snyder died in Iraq in 2006 and his body was returned to the United States for burial. Members of the Westboro Baptist Church, who have picketed military funerals for several years, decided to protest outside the Westminster, Md., church where his funeral was to be held.

The Rev. Fred Phelps and his family members who make up most of the Westboro Baptist Church have picketed many military funerals in their quest to draw attention to their incendiary view that U.S. deaths in Afghanistan and Iraq are God's punishment for the nation's tolerance of homosexuality.

They showed up with their usual signs, including "Thank God for dead soldiers," "You're Going to Hell," "God Hates the USA/Thank God for 9/11," and one that combined the U.S. Marine Corps motto, Semper Fi, with a slur against gay men.

The church members drew counter-demonstrators, as well as media coverage and a heavy police presence to maintain order. The result was a spectacle that led to altering the route of the funeral procession.

Several weeks later, Albert Snyder was surfing the Internet for tributes to his son from other soldiers and strangers when he came upon a poem on the church's website that attacked Matthew's parents for the way they brought up their son.

Soon after, Snyder filed a lawsuit accusing the Phelpses of intentionally inflicting emotional distress. He won $11 million at trial, later reduced by a judge to $5 million.

The federal appeals court in Richmond, Va., threw out the verdict and said the Constitution shielded the church members from liability.

Forty-eight states, 42 U.S. senators and veterans groups sided with Snyder, asking the court to shield funerals from the Phelps family's "psychological terrorism." ...

Links to all the briefs submitted in the case can be found here at the SCOTUS website.

From Bloomberg:

Westboro members have demonstrated at hundreds of military funerals, typically bearing signs that say, “Thank God for Dead Soldiers,” “Pope in hell,” “God Hates the USA” and “Fag troops.”

The leader of the church, Fred Phelps, was one of seven protesters at the 2006 funeral of Matthew Snyder, a Marine lance corporal who died in Iraq’s Anbar Province.

The demonstration was held 1,000 feet away from the Westminster, Maryland, Catholic church where the funeral was held. The Westboro website later featured an “epic” that said Snyder and his ex-wife “taught Matthew to defy his creator” and “raised him for the devil.”

Albert Snyder sued Fred Phelps and two of his daughters for intentional infliction of emotional distress. A jury awarded Snyder $10.9 million, an amount later reduced by a trial judge. A federal appeals court then threw out the entire award, and Snyder appealed to the nation’s highest court.

Roberts characterized the ruling as a narrow one that rested in part on Westboro’s compliance with police instructions about where the protest could be held.

“Simply put, the church members had the right to be where they were,” the chief justice wrote. He added, “The protest was not unruly; there was no shouting, profanity or violence.”

A lack of shouting, profanity or violence has not characterized all of Westboro's funeral protests over the last few years. Some of them have been so loud that the Patriot Guard Riders motorcycle club has been asked to attend, to block the sight and sound of Westboro's activities from mourners:

Debbie Lee was shielded by the Patriot Guard Riders’ flag line from viewing or hearing protesters at the 2006 memorial service held in Hood River to honor her son, Marc Alan Lee, a fallen Navy SEAL.

She later watched news reports about the “vile and disgusting” things that a splinter group of the Westboro Baptist Church members said about Marc, who was raised in Hood River and died at the age of 28 while on a combat mission in Ramadi, Iraq.

Lee, who now resides in Surprise, Ariz., said it is very possible that, given her grief, she could have been “pushed over the edge” by reading signs with messages such as, “Thank God for dead soldiers” or hearing protesters accuse her of “sending Marc to hell by encouraging his military service.”

“My son died to save his buddies and defend the country that he loved and I can’t begin to tell you how overwhelming my emotions were after I heard media reports about the disgusting things that were said that day,” said Lee.

“I’m not a violent or aggressive person but I could have become one if I had been completely aware of what was going on.”

Lee contends that the mission of the Patriot Guard riders, a motorcycle group that formed in 2005 to shield families from protesters during memorial services, has alleviated the potential for violent encounters. If invited to the service by a family, as was done in Lee’s case, the bikers, many of whom are veterans, hold tall flags to block the picketers from view. They also drown out the chants of protesters by playing bagpipes, singing or revving their bike engines.

Westboro members contend the death of U.S. troops is God’s retribution for their defense of a nation that embraces homosexuality, which they consider a mortal sin. Eliminating the possibility of mental distress that could lead someone from a military family to commit an act of disorderly conduct is one reason that Patrick Sheehan, R-Clackamas, decided to join Rep. JimWeidner, R-Yamhill, as a chief co-sponsor of House Bill 3421, The Funeral Civility Act.

They believe it is possible to protect free speech while setting an appropriate time and place for protests so there was no disruption of a service to pay respect to someone that has died. Their bill is modeled after legislation that has already become law in 40 other states and applies to both civilian and military funerals and memorial services.

“What they (Westboro church) are doing is essentially inciting violence and this bill is basically just an acknowledgement that everyone has the right to mourn in privacy and peace,” said Weidner, who has a son serving in the Air Force.

Sheehan was asked to make the matter a priority by Becky Ginsbach of the Estacada Area Support Our Troops Foundation. He credits military families for exhibiting remarkable constraint by not assaulting the protesters that insult and demean their loved one’s military sacrifice at a time of great personal pain.

“Public safety has to be part of this conversation,” he said. “If people are protesting outside the church where a funeral is taking place for your child, it’s going to cause you mental distress and that’s absolutely understandable.”...

It would be interesting to know just how the Court arrived at this thread-narrow opinion, but that's something that those of us not in the room during the discussion will never know. However, this SCOTUS blog account of the oral arguments may provide some hints:

...It was apparent, throughout an hour of oral argument Wednesday, that emotion was more dominant than law, at least among most of the Justices. Perhaps typically, Justice Ruth Bader Ginsburg, who did seem to want to talk about legal principles, could not keep from pronouncing that “this is a case about exploiting a private family’s grief. Why should the First Amendment tolerate that?”

The two lawyers in the case came well prepared to argue both the facts and the law — from diametrically opposed perspectives — and, despite the overall mood along the bench, managed to do so quite impressively. But the anguish of Albert Snyder, father of a dead soldier, and of the other funeral-goers in Westminster, Md., four years ago, and the recollection of the ugly messages that protesters near the scene had displayed, so tugged at feelings that a video of them might have seemed to be playing, over and over again, on the frieze that rings the chamber’s ceiling.

The Court went searching, through hypothetical examples, for ways to define limits on protests at funerals, but usually managed to conjure even more sympathetic targets of hateful speech — such as a grandmother, leaving a cemetery where her soldier grandson killed in combat had just been buried, waiting at a bus stop and being harangued, “in vile tones,” by an anti-war protester expressing pleasure at the soldier’s demise (the scenario suggested by Justice Samuel A. Alito, Jr., and embellished by Justice Antonin Scalia).

Another telling sign was Chief Justice John G. Roberts, Jr., repeating with increasing force the accusation that the Westboro Baptist funeral protesters had singled out the dead soldier’s father and the funeral, not to enter a discussion about public affairs including morality, but simply to achieve “maximum publicity.” Snyder, he said, sought only to bury his son, not to make any kind of statement. The Chief Justice was openly skeptical of the small church’s claim, made by its lawyer, that “it is not an issue of seeking maximum publicity; it was using a public platform to bring a public message.”...

But judicial detachment is not likely to be conspicuous when a lawyer steps to the podium and begins with the simple statement: “We’re talking about a funeral,” and immediately laments the loss of the quiet, the dignity that everyone expects to come with such rites. All kinds of mental images, familiar and perhaps always painful, get stirred up by such references. And, when everyone in the room is familiar with how the quiet dignity was threatened this time, as was true on Wednesday, even a constitutional case about free speech would not have had much chance of being only about law.

By the end of the argument, it seemed that, if the Justices could settle on a legal principle to govern funeral protests of the kind that greeted the service for Marine Lance Corporal Matthew Snyder, it might well be the compromise position suggested at one point by Justice Stephen G. Breyer. The First Amendment would allow a lawsuit for outrageously causing harm to someone’s emotional life — at least at a funeral — but limit it so that it would not forbid all forms of protests at such an event. As Breyer put it: “What I’m trying to accomplish, to allow this tort to exist but not allow the existence of it to interfere with an important public message where that is a reasonable thing to do.”

That approach also seemed to hold some appeal for Justice Anthony M. Kennedy, who expressed his concern that the Westboro Baptists were seeking a constitutional right to follow around any individual who had a particular trait that the pursuers disliked, and making that person a target of outrageous comments. In addition, Kennedy openly invited counsel to “help us in finding some line” that would make such pursuits unprotected as free speech.

Sean E. Summers of York, Pa., the lawyer for the dead Marine’s father, wanted a very simple constitutional line — tailored to follow exactly the facts as he portrayed them. The services for Matthew Snyder were a private event, it was disrupted by private individuals, who had made the private Snyder family its special target for its abuse, so, to Summers, the First Amendment has no role to play. To Summers, there was no public policy issue involved, just a message of personal intolerance.

The Westboro Baptists’ lawyer — family member Margie J. Phelps, of Topeka, Kan. — wanted an equally simple constitutional line — fitting her version of the facts. Albert Snyder had intentionally turned his son’s funeral into a public media event and himself into a public advocate, the protesters showed up to debate him on the sins of America and the consequences, and so, to Phelps, the First Amendment provided the usual shield for speech on “matters of public concern.”

While the Justices (all except Justice Clarence Thomas) were active in the argument and energetically questioned both of the lawyers, there was a notable tonal difference. The questions to Summers were probing but respectful, in general. The questions to Phelps, on the other hand, were sometimes heavy with skepticism, and, from some of the Justices, displayed implicit hostility. The Chief Justice and Justice Alito seemed the most skeptical, but Justice Kennedy made little effort to conceal his discontent.

Especially given the atmosphere that Phelps confronted (and the pre-argument skepticism about her likely performance, since she is a member of the Westboro Baptists family and has shared in the scorn shown them in the media), she gave a well-honed argument and did not yield to any temptation to respond in kind to the tone of many of the questions. She made only one reference to the family’s small church, referring to it as “a little church where the servants of God are found,” but it did not sound as if she were trying to gain sympathy for it or for its strongly-embraced cause of lecturing America for its sins.

Justice Breyer, as is his norm, spent the most time thinking out loud about possible ways to decide the case. But Justices Elena Kagan and Sonia Sotomayor appeared to go the furthest to push both lawyers to refine their arguments, and deal with larger implications of the First Amendment controversy at issue.

From the three opinions released today, here is Chief Justice Roberts, writing for the majority:

"Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular facts before us. As we have noted, 'the sensitivity and significance of the interests presented in clashes between First Amendment and [state law] rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.'...

"Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder's funeral, but did not itself disrupt that funeral, and Westboro's choice to conduct its picketing at that time and place did not alter the nature of its speech.

"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case..."

Justice Breyer, in a concurring statement, noted that the Court was dealing only with the picketing, and not with Westboro's online verbal attack against the Snyders:

While I agree with the Court’s conclusion that the picketing addressed matters of public concern, I do not believe that our First Amendment analysis can stop at that point. A State can sometimes regulate picketing, even picketing on matters of public concern....

The dissent recognizes that the means used here consist of speech. But it points out that the speech, like an assault, seriously harmed a private individual... The dissent requires us to ask whether our holding unreasonably limits liability for intentional infliction of emotional distress—to the point where A (in order to draw attention to his views on a public matter) might launch a verbal assault upon B, a private person, publicly revealing the most intimate details of B’s private life, while knowing that the revelation will cause B severe emotional harm. Does our decision leave the State powerless to protect the individual against invasions of, e.g., personal privacy, even in the most horrendous of such circumstances?

As I understand the Court’s opinion, it does not hold or imply that the State is always powerless to provide private individuals with necessary protection....

Justice Alito's dissent was not quoted at length in any article I found, but it deserves reading. Here's most of it, minus the footnotes and citations; the full opinion is here):

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.

Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.

The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

Respondents and other members of their church have strong opinions on certain moral, religious, and political issues, and the First Amendment ensures that they have almost limitless opportunities to express their views. They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.” ...

It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate. To protect against such injury, “most if not all jurisdictions” permit recovery in tort for the intentional infliction of emotional distress (or IIED)....

This is a very narrow tort with requirements that “are rigorous, and difficult to satisfy.” ... To recover, a plaintiff must show that the conduct at issue caused harm that was truly severe....

A plaintiff must also establish that the defendant’s conduct was “‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” ... Although the elements of the IIED tort are difficult to meet, respondents long ago abandoned any effort to show that those tough standards were not satisfied here. On appeal, they chose not to contest the sufficiency of the evidence.... They did not dispute that Mr. Snyder suffered “‘wounds that are truly severe and incapable of healing themselves.’” ... Nor did they dispute that their speech was “‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ”... Instead, they maintained that the First Amendment gave them a license to engage in such conduct. They are wrong.

It is well established that a claim for the intentional infliction of emotional distress can be satisfied by speech.... And although this Court has not decided the question, I think it is clear that the First Amendment does not entirely preclude liability for the intentional infliction of emotional distress by means of speech.

This Court has recognized that words may “by their very utterance inflict injury” and that the First Amendment does not shield utterances that form “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”... When grave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery.

In this case, respondents brutally attacked Matthew Snyder, and this attack, which was almost certain to inflict injury, was central to respondents’ well-practiced strategy for attracting public attention.

On the morning of Matthew Snyder’s funeral, respondents could have chosen to stage their protest at countless locations. They could have picketed the United States Capitol, the White House, the Supreme Court, the Pentagon, or any of the more than 5,600 military recruiting stations in this country. They could have returned to the Maryland State House or the United States Naval Academy, where they had been the day before. They could have selected any public road where pedestrians are al- lowed. (There are more than 4,000,000 miles of public roads in the United States.) They could have staged their protest in a public park. (There are more than 20,000 public parks in this country.) They could have chosen any Catholic church where no funeral was taking place. (There are nearly 19,000 Catholic churches in the United States.) But of course, a small group picketing at any of these locations would have probably gone unnoticed.

The Westboro Baptist Church, however, has devised a strategy that remedies this problem. As the Court notes, church members have protested at nearly 600 military funerals.... They have also picketed the funerals of police officers, firefighters, and the victims of natural disasters, accidents, and shocking crimes. And in advance of these protests, they issue press releases to ensure that their protests will attract public attention. This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. The more outrageous the funeral protest, the more publicity the Westboro Baptist Church is able to obtain. Thus, when the church recently announced its intention to picket the funeral of a 9-year-old girl killed in the shooting spree in Tucson—proclaiming that she was “better off dead their announcement was national news, and the church was able to obtain free air time on the radio in exchange for canceling its protest.

Similarly, in 2006, the church got air time on a talk radio show in exchange for canceling its threatened protest at the funeral of five Amish girls killed by a crazed gunman. In this case, respondents implemented the Westboro Baptist Church’s publicity-seeking strategy. Their press release stated that they were going “to picket the funeral of Lance Cpl. Matthew A. Snyder” because “God Almighty killed Lance Cpl. Snyder. He died in shame, not honor—for a fag nation cursed by God . . . .” ... This announcement guaranteed that Matthew’s funeral would be transformed into a raucous media event and began the wounding process. It is well known that anticipation may heighten the effect of a painful event.

On the day of the funeral, respondents, true to their word, displayed placards that conveyed the message promised in their press release. Signs stating “God Hates You" and “Thank God for Dead Soldiers” reiterated the message that God had caused Matthew’s death in retribution for his sins.... Others, stating “You’re Going to Hell” and “Not Blessed Just Cursed,”conveyed the message that Matthew was “in Hell—sine die.” ...

Even if those who attended the funeral were not alerted in advance about respondents’ intentions, the meaning of these signs would not have been missed. Since respondents chose to stage their protest at Matthew Snyder’s funeral and not at any of the other countless available venues, a reasonable person would have assumed that there was a connection between the messages on the placards and the deceased. Moreover, since a church funeral is an event that naturally brings to mind thoughts about the afterlife, some of respondents’ signs—e.g., “God Hates You,” “Not Blessed Just Cursed,” and “You’re Going to Hell”—would have likely been interpreted as referring to God’s judgment of the deceased. Other signs would most naturally have been understood as suggesting—falsely—that Matthew was gay. Homosexuality was the theme of many of the signs. There were signs reading “God Hates Fags,” “Semper Fi Fags,” “Fags Doom Nations,” and “Fag Troops.”... Another placard depicted two men engaging in anal intercourse. A reasonable bystander seeing those signs would have likely concluded that they were meant to suggest that the deceased was a homosexual.

After the funeral, the Westboro picketers reaffirmed the meaning of their protest. They posted an online account entitled “The Burden of Marine Lance Cpl. Matthew A. Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants of Maryland Connect the Dots!”...

Belying any suggestion that they had simply made general comments about homosexuality, the Catholic Church, and the United States military, the “epic” addressed the Snyder family directly:

“God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD! You did JUST THE OPPOSITE—you raised him for the devil....

“Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic monster they con- demned their own souls. They also, in supporting satanic Catholicism, taught Matthew to be an idolater.

“Then after all that they sent him to fight for the United States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life, putting him in the cross hairs of a God that is so mad He has smoke coming from his nostrils and fire from his mouth! How dumb was that?”

In light of this evidence, it is abundantly clear that respondents, going far beyond commentary on matters of public concern, specifically attacked Matthew Snyder because (1) he was a Catholic and (2) he was a member of the United States military. Both Matthew and petitioner were private figures, and this attack was not speech on a matter of public concern. While commentary on the Catholic Church or the United States military constitutes speech on matters of public concern, speech regarding Matthew Snyder’s purely private conduct does not....

In a footnote, Alito points out that the Supreme Court refused to consider the 'epic' as part of the case against Westboro because it was not part of Snyder's petition before the court. "The epic, however, is not a distinct claim but a piece of evidence that the [Pennsylvania] jury considered in imposing liability for the claims now before this Court. The protest and the epic are parts of a single course of conduct that the jury found to constitute intentional infliction of emotional distress.... The Court’s strange insistence that the epic “is not properly before us,” ... means that the Court has not actually made “an independent examination of the whole record,”... And the Court’s refusal to consider the epic contrasts sharply with its willingness to take notice of Westboro’s protest activities at other times and locations."

Again from the dissent:

JUSTICE BREYER provides an apt analogy to a case in which the First Amendment would permit recovery in tort for a verbal attack:

“[S]uppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected.”... This captures what respondents did in this case. Indeed, this is the strategy that they have routinely employed—and that they will now continue to employ—inflicting severe and lasting emotional injury on an ever growing list of innocent victims....

The Court concludes that respondents’ speech was protected by the First Amendment for essentially three reasons, but none is sound.

First—and most important—the Court finds that “the overall thrust and dominant theme of [their] demonstration spoke to” broad public issues. As I have attempted to show, this portrayal is quite inaccurate; respondents’ attack on Matthew was of central importance. But in any event, I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected. The First Amendment allows recovery for defamatory statements that are interspersed with nondefamatory statements on matters of public concern, and there is no good reason why respondents’ attack on Matthew Snyder and his family should be treated differently.

Second, the Court suggests that respondents’ personal attack on Matthew Snyder is entitled to First Amendment protection because it was not motivated by a private grudge, but I see no basis for the strange distinction that the Court appears to draw. Respondents’ motivation—“to increase publicity for its views,”—did not transform their statements attacking the character of a private figure into statements that made a contribution to debate on matters of public concern. Nor did their publicity-seeking motivation soften the sting of their attack. And as far as culpability is concerned, one might well think that wounding statements uttered in the heat of a private feud are less, not more, blameworthy than similar statements made as part of a cold and calculated strategy to slash a stranger as a means of attracting public attention.

Third, the Court finds it significant that respondents’ protest occurred on a public street, but this fact alone should not be enough to preclude IIED liability. To be sure, statements made on a public street may be less likely to satisfy the elements of the IIED tort than statements made on private property, but there is no reason why a public street in close proximity to the scene of a funeral should be regarded as a free-fire zone in which otherwise actionable verbal attacks are shielded from liability. If the First Amendment permits the States to protect their residents from the harm inflicted by such attacks—and the Court does not hold otherwise—then the location of the tort should not be dispositive. A physical assault may occur without trespassing; it is no defense that the perpetrator had “the right to be where [he was].”... And the same should be true with respect to unprotected speech. Neither classic “fighting words” nor defamatory statements are immunized when they occur in a public place, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure like Matthew Snyder any differently.

One final comment about the opinion of the Court is in order. The Court suggests that the wounds inflicted by vicious verbal assaults at funerals will be prevented or at least mitigated in the future by new laws that restrict picketing within a specified distance of a funeral.... It is apparent, however, that the enactment of these laws is no substitute for the protection provided by the established IIED tort; according to the Court, the verbal attacks that severely wounded petitioner in this case complied with the new Maryland law regulating funeral picketing.... And there is absolutely nothing to suggest that Congress and the state legislatures, in enacting these laws, intended them to displace the protection provided by the well-established IIED tort.

The real significance of these new laws is not that they obviate the need for IIED protection. Rather, their enactment dramatically illustrates the fundamental point that funerals are unique events at which special protection against emotional assaults is in order. At funerals, the emotional well-being of bereaved relatives is particularly vulnerable.... Exploitation of a funeral for the purpose of attracting public attention “intrud[es] upon their . . . grief,” and may permanently stain their memories of the final moments before a loved one is laid to rest. Allowing family members to have a few hours of peace without harassment does not undermine public debate. I would therefore hold that, in this setting, the First Amendment permits a private figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern....

Respondents’ outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered.

In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner....

A point comes to mind that only was alluded to in the long list of places that Westboro chose not to protest: by protesting at the funerals of soldiers, police, firefighters and other ordinary people, Westboro has been aiming its "commentary on national affairs" solely at people who not only had been deeply wounded by those national affairs but who have little to no power to change them.

Since the Court did not include the 'epic' in its considerations, it might be possible for the Snyder family to bring a civil suit for damages against Westboro based on those online words, if they wished. Whether they do or not, it appears likely that many more families may have to run the gantlet of insults disguised as protected speech.

The Cardozo Law Review features an online symposium discussing this case.

Comments

[Countme--In]

So this, written by a callow punk:

http://www.redstate.com/moe_lane/2011/03/01/wi-dems-made-a-pregnant-woman-hide/

.... is protected speech too.

Good to know the guidelines as we move forward to chaos.

[Catsy]

I cannot even begin to express how wrongheaded I think this post is, and I do hope I've misunderstood the gist of your argument.

As numerous people have been pointing out over at Balloon Juice, the only shocking thing about this decision is that there was even one SC Justice who evidently needed remedial classes on the First Amendment before ruling on this case. None of the justifications cited manage to create a defensible basis for deciding that this protest that is offensive to that person is protected speech, but that protest that is offensive to this person is not.

[fiddler]

Catsy, it seems to me that your argument is with Justice Alito, not me.

Westboro's public protest, this time apparently a quiet one, has received public protection in the majority opinion; I'm not debating that. The Court drew its line based on the protest being public, law-abiding and impersonal; however, the online Westboro protest was personal and specifically aimed at the Snyder family, which should make it liable to civil suit like any other hate-filled defamatory personal remark made in public.

Not all speech is completely protected by the First Amendment -- the exceptions that come to mind are obscenity (whatever that is defined as this week), yelling 'Fire' in a crowded theatre (false alarm causing panic), and libel or slander; there may well be others of which I'm unaware. Since American law does not recognize libel or slander of the dead, the Snyders' legal option appears to be a civil case for IIED.

Since you seem to be rejecting the public vs. private and impersonal vs. personal basis on which the opinions were based, what would you consider to be a defensible basis for determining which version of odious speech is protected and which is not?

[liberal japonicus]

I saw the decision, but it sounds like the oral arguments would have pointed to the opposite. I know that the oral arguments have their own rhyme and reason, but is it usual for there to be such a gap? Or am I misreading all this?

[fiddler]

LJ, I don't know. I have taken some law courses, but I am not an attorney, and most of my experience in following what the Court does comes from reading the opinions. That's why I was wishing I could have heard the discussions in chambers, because the gap between the oral arguments and the decision feels disjointed to me.

[Carleton Wu]

Count me with catsy- I understand why someone would very much want to find against this collection of offensive loons, but Alito steps unto a very slippery slope when he decides that the state ought to sit in judgment over what constitutes 'contributing to the political debate' or what has 'social value' or what is not 'essential part of any exposition of an idea'. Thinking that eg Catholics are blasphemers in league with the anti-Christ is repugnant, but we don't have the luxury of deciding that such thoughts are impermissible or even subject to fewer protections than "The war in Iraq is good/bad".

As a side note, for the originalists out there- from the dissent:
-funerals are unique events at which special protection against emotional assaults is in order
-Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace
Neither of these appear in my copy of the Constitution. Perhaps it lacks some penumbras.

[Brett Bellmore]

You protect the odious, or anyone somebody desires to silence will be described as odious. This is about as basic as it gets. The Court made the right call, and shame on Alito.

[Slartibartfast]

Still, leniency for some thorough asskickings might be in order.

I realize this will never, ever happen, nor would the outcome be all that satisfactory if it did. All that would result is some light-to-medium tenderization of people who will still be flaming a$$holes after the bruises fade.

They want attention? Take their pictures, identify them by name, and put them on billboards and the sides of buses in their hometowns. And the like.

[debbie]

I make no pretense at having a deep understanding of the law, but while Westboro can't be sued for what they say, can't they be sued for how they finance their ability to say what they say? I've heard that Westboro funds itself through lawsuits it brings against people who attack their members while they demonstrate. There are consistent reports that Westboro members deliberately provoke and incite people to react badly so they can then sue them. Isn't this something that can be prosecuted?

[efgoldman]

I'm not a lawyer, and I don't play one on TV, but....

It seems to me the court could have split the hairs finer. The two concepts:
(a) The WBC folks have the absolute first amendment right to stand on public property and be obnoxious and
(b) That the obnoxious speech may be hurtful to private parties, who may then seek tort relief
Are not necessarily mutually exclusive.

A newspaper (in the US) may not be restrained, in advance, from publishing libel or slander or state secrets.
But the paper, in doing so, takes a risk that an aggrieved party (or the state) may seek court relief.

This seems obvious to me, but I haven't seen it in most of the bloggy commentary. What am I missing?

[Turbulence]

A newspaper (in the US) may not be restrained, in advance, from publishing libel or slander or state secrets.
But the paper, in doing so, takes a risk that an aggrieved party (or the state) may seek court relief.

I am also not a lawyer, but I don't think this is totally correct. Ignoring the state secrets aspect (because national security law is a whole other ball of wax), although you can technically sue a newspaper for libel, the bar is set incredibly high. You can't win unless you can prove that the newspaper knew that their claims were false or acted without regard for their veracity. See this for more information.

In the US, if a newspaper defames you, you have basically zero effective legal recourse. You can waste your money taking them to court, but once there, the deck is so thoroughly stacked against you that you'll almost certainly lose.

[fiddler]

Efgoldman, I agree with you about the public vs. private hairsplitting.

As for newspapers -- well, preventing the publication of libel or slander is one of the things editors are paid to do. I'm not sure that absence of prior restraint falls into the same category as the public vs. private protest. Would you say more on this?

[liberal japonicus]

Neither of these appear in my copy of the Constitution. Perhaps it lacks some penumbras.

Nothing but us non-lawyers in here. But didn't one justice say something about people having the right to be left alone?

[Turbulence]

The right to be left alone, also known as the right to privacy, is definitely not in the constitution. Although you can probably find it in a penumbra or two.

[fiddler]

Would 200-plus years of constitutional case law count as a penumbra?

[McKinneyTexas]

I know that the oral arguments have their own rhyme and reason, but is it usual for there to be such a gap? Or am I misreading all this?

It's not uncommon. Asking hard questions might seem to indicate how a justice will rule, but then it is also often to see how the respondent holds up. Also, I suspect the Court's heart, during argument, was totally with the plaintiffs. The morning after, so to speak, they had to read the First Amendment.

You can't win unless you can prove that the newspaper knew that their claims were false or acted without regard for their veracity. See this for more information.

Only if you are a "public figure". The standard for a private citizen is negligence, at least in my neck of the woods.

Catsy and I are totally together on this, as much as I agree with Slarti that a back yard ass whipping also seems in order.

[Turbulence]

Would 200-plus years of constitutional case law count as a penumbra?

It is important to distinguish the literal text of the constitution from interpretations thereof. Terms like "privacy" and "the right to be left alone" do not appear anywhere in the constitution's text. Liberal justices have indeed claimed to find such concepts in constitutional penumbras, but since Carelton's original question was directed towards originalists, that doesn't matter: an originalist doesn't believe that penumbras are real to begin with.

[fiddler]

McKinney, the decision is very narrow, and applies to a protest in which Westboro members were silent and behaved themselves within local law. This has not always been the case; if it were, motorcyclists would not have been called to drown out their yelling at some funerals. Do you think that, in light of this decision, the Westboro members might stick to silent protests in the future?

[bobbyp]

The true depth of Alito's depravity is revealed in his dissent. He'd have been right at home in Salem circa 1692, or sitting with Vyshinksy at the prosecutor's table in 1930's Moscow.

....and I agree with Brett.

[Rob in CT]

People have a right to be complete, utter aholes.

It's part of the price we pay for our notion of liberty. So be it.

[fiddler]

People have a right to be complete, utter aholes

In public, concerning national issues, impersonally, and within applicable state and local regulations. That's what the majority said.

[Turbulence]

People have the right to be assholes. But I'm not sure why anyone has the right to create a organization that does nothing but roam the country, provoking and inciting random people into fits of violence so that those people can then be sued for big cash payouts.

[McKinneyTexas]

an originalist doesn't believe that penumbras are real to begin with.

Well, not entirely. The Miranda warning and suppression of evidence seized without probable cause and without a warrant are logical extensions of the text of the 5th and 4th amendments. The gray areas are things like Roe v Wade, about which reasonable people can and do disagree. The various voting rights act cases striking down poll taxes and literacy test likewise flow logically from the 15th amendment. The right to have districts drawn in such a way that one ethnic group's voting power is not diluted is more of a stretch. Settled law now, but still more of a stretch.

Do you think that, in light of this decision, the Westboro members might stick to silent protests in the future?

Probably not, but when free speech rights rise and fall on a judge's subjective interpretation of a speaker's subjective intent or a listener's subjective feelings, the real problems arise. Liberty/freedom is messy stuff. Better to keep and preserve our bright line protecting pretty much all speech. I'm not even sure I can support prohibitions against obscenity/pornography. Fighting words, which I think comes closest to what Westboro is up to, is a carefully limited exception. I suspect that Slarti's implied 'self help' remedy would produce a large defense fund and acquittals for individuals engaging in close quarters rebuttal. But that's an aside. Our 'rule of law' society has to maintain core principles as inviolate. There are too many, right and left, who would silence opposition. When that happens, if it ever does, then we have well and truly reached a 2d Amendment moment.

Crying "Fire" in a crowded theater is another very limited exception in which the speaker intends to induce action that any reasonable person could not help but take.
"Incitement" is another limited area. Words that expressly call on others to commit immediate acts of violence aren't protected. Words that come close and have the same effect, probably are protected. Like I said, freedom is messy.

If we start stretching these limited concepts, the country will be operating under the ObWi posting rules. Fine for voluntary association and the consent of participants here, not so much for a free society.

[bedtimeforbonzo]

Hate speech is free speech -- what might be hateful to me, may not be hateful to you.

But if hate speech becomes so terrible, so inciteful, so poisonous can it cross over to the dangerous waters of being a hate crime? Or creating one?

What if one of the parents of these dead soldiers, so overwhelmed with grief, became so tormented by the Westboro protests that it led them to commit suicide?

Would that be a hate crime?

Finally, I wonder if Westboro realizes its protests are mocking and showing disrespect to Americans who died upholding the way of life not just for those terrible homosexuals but their cowardly and undignified church members as well.

And, since it is protected by the First Admendment, I suggest Westboro Baptist change its name to the Church of Intolerance and Exclusion. Who knows? Membership might even go up.

[Hartmut]

I could name some people that make a living of doing the step dance right on that line. As outrageous as possible while still deniable when some rube is incited to commit crimes based on it.

[Hartmut]

bedtimeforbonzo, let's look at it from the other side: what if someone provoked by the Phelpses kills one or more of them?

[McKinneyTexas]

Would that be a hate crime?

No. For many reasons.

[wj]

To me, it seems that the critical point in Justice Alito's dissent is this one: "I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected."

I don't have the legal expertise (or the time) to read thru the entire majority opinion. But it would be interesting to know whether the majority addressed that point, and if so, what their thinking was.

[Matt McIrvin]

Given the US Bill of Rights and American norms about free speech, the court made the right call.

However, given that people are bringing up Stalin's USSR, witch trials, etc., I think it's worth mentioning that many, perhaps most modern democracies have much stricter restrictions on offensive or bigoted speech than the US does, and these places don't actually seem to be totalitarian hellholes. I don't actually favor adopting their policies, but I do think some perspective is needed.

[Countme--In]

I understand the importance of the Court maintaining the "bright line" MckT refers to.

And, not surprisingly, I endorse Slart's various musings.

Presumably, Phelps and his rabid sheep die occasionally, which seems an inadequate rate of dispatch. Presumably, they are provided funeral services in the church and at the grave site.

Perhaps a little three-bean salad social afterwords in Phelps' drawing room on a muggy afternoon.

Now, seeing as how George Carlin is not with us any longer and thus not available to show up at all of these functions with a very powerful JBL sound system to broadcast about 50 minutes of the detailed version of Hell he has planned for the bunch ...

..... it would seem all first amendmenty to have a sizable contingent of miserably bitter, but articulate people attend each of these functions to give Phelps a taste back, through the aforesaid JBL sound system.

One could go even further into actionable behavior and in the dead of night after the funeral, remove the dearly departed from their graves and crypts and toss the remains on to Phelps' or the church's lawn.

Just to show that even Hades has spit them back.

[wonkie]

At some funerals the Westboro nutcases have been required to do thier protestinng far enouugh away from the funeral that they can't be heard. Is that a limit on free speech--to require thathe speech be done where it can't be heard? Or si that a reasonable way to balance the right of the speakers to speak with the right of others to be left alone, uninterrupted by the speech?

I realize that this is no thte issue upon which the Supremes ruled. I'm just curious. I'm totally not a lawyer but I did grow up in an ACLU family and am thoruoghky indoctrinated in the belief that free speech means protecting the right of asshles to be assholes so no argument from me about this ruling. I'm just wonderinng about tactics for dealing with the assholes.

[Countme--In]

I will add that on the "odious scale", I find Phelps et al of little importance compared to these dangerous people, who are actually trying to kill my country, while rubbing their hands together at the prospect of cheering its death at the funeral:

http://politicalticker.blogs.cnn.com/2011/03/02/tea-party-leader-boehner-looks-like-a-fool-should-be-defeated-in-a-primary/

Add in that Trent Franks is now calling for the President's impeachment over DOMA.

The President should do everything he can to actively court impeachment.

Additionally, he should announce immediately that he will veto any attempt to raise the debt ceiling for as long as he is in office. Further, that he will bring legislation to the Hill to set the debt ceiling at ZERO.

He should then order the Executive Branch, in particular the Treasury Department, to do nothing, except turn out the lights and cease all tax collection, as the U.S. Government shuts down for eternity and the world's financial system vaporizes.

He should also place Bernacke and the FED Governors under house arrest to prevent any counter-measures to economic Armageddon.

The Tea Party desires the anti-Christ.

Give it to them.

Then, I might be able to spare some time for exhuming the small-change Westboro Baptist zombies from their pits.

[McKinneyTexas]

Is that a limit on free speech--to require thathe speech be done where it can't be heard?

First Amendment laws allow a degree of regulation as to time and place--you can't stand in the middle of a street with a sign and bring traffic to a halt. Catsy is probably more up on this than I am.

Count--or, you and I could show up, suitably attired and possibly armed--I prefer pepper spray and an extended car antenna for social affairs of that nature, since, at my advanced age, ditch wrestling is no longer an option. I do believe in a limited degree of self help when lessons in manners simply must be administered.

But, rather than dig them up, we could perhaps call on our pet lovers here at ObWi for a large outdoor, tightly focused mass potty training exercise. Just good clean fun and all that . . .

[Hartmut]

wonkie, that's a real problem. Remember the "Free speech zones" of the Cheney/Bush era?
I fear it is more or less impossible to come up with a (legally) consistent set of rules that would keep people like the Phelpses out of voice range but not legitimate political dissenters.

[cofax]

Is that a limit on free speech--to require thathe speech be done where it can't be heard?

I do not believe the First Amendment mandates that one be listened to while exercising one's free speech rights. I can stand on a street-corner all day and rant about the evils of regulating the sale of apricots, but no one can be required to listen to me.

More specifically, the WBC protestors' First Amendment claim is based on the fact that their speech is political: and political speech has a larger audience than those injured by the WBC rantings. If I go to a rally where Obama is speaking, that he cannot hear me in the crowd is no violation of my First Amendment rights.

[bedtimeforbonzo]

Me: Would that be a hate crime?

McKinney: No. For many reasons.

Stipulating that I think you are right, I'd still be intrigued if such a case went to court and put in a jury's hands.

You must remember I've watched one too many "Law and Order" episodes.

[Ugh]

As with many other things, it seems that the best thing to do with respect to the WBC is to ignore them.

[Brett Bellmore]

"People have the right to be assholes. But I'm not sure why anyone has the right to create a organization that does nothing but roam the country, provoking and inciting random people into fits of violence so that those people can then be sued for big cash payouts."

An unintended effect of going easy on those who tend to respond to speech they don't like by administering beatings. If the legal penalties for beating on those who say things you don't like were sufficient to deter, this sort of business model would be a bust.

And, again, how can we prevent such a business model, (I should say alleged business model.) from working, without creating a legal environment where we compromise the right to say things somebody else might feel like administering a beating in response to? It's really dangerous to make beaing on people who say things you don't like a strategy that works.

[Turbulence]

Stipulating that I think you are right, I'd still be intrigued if such a case went to court and put in a jury's hands.

McTex is very much right.

In the US, a good example of hate crime would be: guy A beats up guy B in public, while screaming "and that's what your kind gets around here". Note that guy B is black in this case. Assault is already a crime. In many states, the district attorney would charge A with aggravated assault because A didn't just beat up B, but also made an implicit threat against all black people in the area. Thus there were two victims: B and any black person in the area. That is a hate crime. You get a hate crime by taking a regular (often violent) crime and then using that crime to intimidate some group of people (not any group: it has to be a protected class I think).

So, while Phelps is vile, nothing that he's doing is a hate crime. He's not beating anyone up.

Given the basic definition of a hate crime, this sort of thing would never make it to a jury because no prosecutor would ever bring the case. If it ever did show up in court, the judge would dismiss it. If he didn't, the jury would refuse to convict.

[McKinneyTexas]

Stipulating that I think you are right, I'd still be intrigued if such a case went to court and put in a jury's hands.

If the judge were to rule correctly, which sometimes happens, the case would never get to a jury. If it did, Westboro would likely lose, as it did in the case under discussion, and the reviewing court would likely throw out the jury's verdict, as the SCT did here. The only winners are people like me. So I'm fine with this kind of thing, even though it sucks up scarce public funds to handle the trial and the appeal.

Recall the movie Natural Born Killers? There was a bit of movie inspired mayhem, including some murders. The movie folks were sued. They won. I think they won on a "causation" issue, which I won't discuss at length because unless it's a concept you deal with often, it is just too arcane to merit the effort.

[McKinneyTexas]

It's really dangerous to make beaing on people who say things you don't like a strategy that works.

Well, it depends on what the speaker says and how objectively reasonable it is for someone to become incensed by what it said. If someone got in my face after my son had been killed, or anyone else's child, as I was leaving the funereal and starting screaming that the deceased had it coming, assuming is was a man doing the screaming, I'd kick him in balls and then keep kicking until someone pulled me off of him or until he put me down. I'd take my chances with any jury, anywhere in Texas. Most other places as well.

At some point, there is a level of bad behavior that requires a concrete response right then and there. If someone starts a fight because he doesn't like Obama or Christie supporters, that person will get his butt handed to him by a jury and rightly so.

But Westboro is in that clear slice of unacceptable behavior that almost completely mitigates a quick and dispositive response.

But that's me.

[Phil]

"He had it coming" should not be an affirmative defense for assault, battery or anything else. Not in Texas, not anywhere. Like Clint Eastwood said, we all got it comin'.

[Ugh]

I'd kick him in balls and then keep kicking until someone pulled me off of him or until he put me down. I'd take my chances with any jury, anywhere in Texas. Most other places as well.

Well, that assumes you can get what they said to you in front of the jury. Could you? I.e., it seems to me that "he said mean things to me" is not a legal defense to an assault and battery charge, ever. Thus, it's irrelevant to the case and inadmissible (indeed, how else do you explain juries awarding damages to the WBC in such amounts that enables them to continue their crusade?).

[jonnybutter]

Count me with catsy- I understand why someone would very much want to find against this collection of offensive loons

And I'm with everyone who's with catsy here. The only slant I'd put on it is the one slarti did: 'offensive loons' is much too mild a way to describe these people. They need their asses kicked in some kind of lawful fashion. Being a 1st A absolutist doesn't preclude feeling actively repulsed by these people. Shaming is still legal.

I definitely agree with Brett as far as he goes. But it's important to remember that there's a difference between the State labeling speech 'offensive' for political reasons, and truly, patently, *deliberately* offensive behavior. That is, there is such a thing as the latter - it's not all 'relative' or perceptual. Please step away from the PoMo quease...

[McKinneyTexas]

"He had it coming" should not be an affirmative defense for assault, battery or anything else. Not in Texas, not anywhere. Like Clint Eastwood said, we all got it comin'.

Well, that assumes you can get what they said to you in front of the jury. Could you? I.e., it seems to me that "he said mean things to me" is not a legal defense to an assault and battery charge, ever. Thus, it's irrelevant to the case and inadmissible (indeed, how else do you explain juries awarding damages to the WBC in such amounts that enables them to continue their crusade?).

It isn't an affirmative defense. It's a factor in mitigation. It's relevant. You can't provoke someone and have that excluded. The provocation and the response have to be pretty much contemporaneous. I can't get mad, go home, and then make a call on the speaker the next day.

[Ugh]

It's a factor in mitigation.

Of guilt or punishment?

[JanieM]

'offensive loons' is much too mild a way to describe these people

That's for sure. And in case anyone doesn't already know, this isn't like the garden variety Baptist church down the block, only loonier. It's very small (wikipedia says 71 members) and mostly the extended family of Fred Phelps, who is 81.

Although I would enjoy spectating when McK takes his own kind of remedy to these people, I think some variation on shaming is, as jonnybutter says, a better and more lasting way to defuse them. Like http://obsidianwings.blogs.com/obsidian_wings/2011/03/protecting-the-odious-on-behalf-of-the-rest-of-us.html?cid=6a00d834515c2369e20147e2f7e356970b#comment-6a00d834515c2369e20147e2f7e356970b>this, for instance, except that it would require a somewhat differently creative approach if the event was a funeral. Still, not beyond the realm of possibility. There are only a few of them, and there are lots and lots of us.

Reminds me of a time when some organized group of lunatic nasties called for a rally in Lewiston, Maine, to try to play on the difficulties of incorporating several thousand Muslim Somali immigrants as new residents in a lily-white, conservative, job-deprived old Maine mill town (with the mills all gone) in a very short period of time. The rally sponsored by the nasties got about 50 people. The counter-rally sponsored by pretty much everyone else drew about 3,000.

[JanieM]

http://videogum.com/57941/omg_these_frat_boys_are_awesom/good-idea-jeans/>Corrected link.

[Countme--In]

Welp, Clint Eastwood said a lot of things:

http://boards.straightdope.com/sdmb/archive/index.php/t-565592.html

Including, from the link (dead, yeah, it had it comin'):

"To hell with them fellas. Buzzards gotta eat, same as worms."

"There are two kinds of men in the world: those with loaded guns and those who dig. You dig."

"My mistake. Four coffins."

And, so on.

My current favorite philosopher is Mike Tyson who said: "Everybody hasth a plan until they get punched in the mouth."

[jrudkis]

Ridicule is more powerful than anger. These guys are clowns and should be treated as such.

In fact, perhaps counter-protestors should dress up like clowns just to make it clear that no-one takes them seriously.

I think counter-protestors should just set up a bunch of grape koolade stands...just to get the congregants used to the idea.

And maybe send unsolicited packets of koolade to the church, in case they don't have any.

But laughing at them, rather than taking them as though they matter, would probably make them go away.

[McKinneyTexas]

Of guilt or punishment?

Guilt as in reducing the offense for which you are being tried. It can knock you down to simple assault, which is fined at $200, no jail time and not a crime of moral turpitude.

If shame and ridicule would work, that would be fine. My view is that we are engaging in projection. The Westboro crowd is demented, clinically demented, with differential axes of paranoia and who knows what else. Shame and ridicule apply to minds afflicted with reason--like mine and Count's--for others, it's learning that stoves are hot and shouldn't be touched unless you are willing to get burned.

I am only partially joking. As a navy brat, I moved every two years. Like clockwork, at least one guy in my new class would have to try to beat me up. There was no talking, no reasoning behind the process, just see me after class, like it or not. I didn't like it, but learned that making the experience as unpleasant for the other guy as possible had a definite deterrent effect.

As a trial lawyer, about every 3 or 4 years, I run into a lawyer who simply is out of his/her mind. Hyper aggressive, their way or the highway, everything anyone does that they don't like is the worst kind of bad faith, blah, blah, blah. Usually their case stinks or, if it doesn't, they want so much money you go to trial anyway. Any attempt at reason or accommodation just adds fuel to the fire. The only thing they understand is defeat, so I try to accommodate.

Some people need to be kicked in the balls. That's just a fact of life. BTW, 'kicked in the balls' is figurative, for the most part. What I mean is 'subjected to a degree of unpleasantness that they do not want to repeat'. Life is just that way sometimes.

[JanieM]

In response to McKinney -- I was thinking more in terms of just making them irrelevant than of making them stop or getting through to them in any way whatsoever. I see that I was oversimplifying in saying that it was shaming I was after. What I'm imagining -- as in that video -- isn't for the sake of having an effect on the Phelpses, it's for the sake of nullifying the effect of the Phelpses on everyone else.

[Donald Johnson]

"Patrick Sheehan, R-Clackamas, decided to join Rep. JimWeidner, R-Yamhill, as a chief co-sponsor of House Bill 3421, The Funeral Civility Act.

They believe it is possible to protect free speech while setting an appropriate time and place for protests so there was no disruption of a service to pay respect to someone that has died. Their bill is modeled after legislation that has already become law in 40 other states and applies to both civilian and military funerals and memorial services. "

I'm not in the habit of agreeing with Republicans or disagreeing with defenders of the First Amendment, but I don't see what's wrong with this. The right for family members to have a funeral and mourn their loved one without being confronted by picketing jackasses seems like a sufficiently good reason to keep protestors away. You can't shield the deceased from criticism in any other place--if a prominent political figure dies then I for one don't necessarily wait for the burial before I point out that the deceased was a supporter of death squads (I probably did that on some blog comment section when Reagan died). Possibly that makes me a jackass, but I don't think political figures should get a pass in which their actions are painted in rosy hues for a week just because they died. But I don't think there's any fundamental right to go to the funeral and carry a picket sign. That occasion is a sacred one and I can't see why limiting picketing poses a great threat to political speech.

People mourn their dead in all cultures and at all times, AFAIK--Neandertalers apparently did it. That's a deep human need and it trumps any First Amendment argument in this very narrow circumstance as far as I'm concerned, without even bringing in things like whether such protests incite violence. (Irrelevant--if the family members are all pacifists it doesn't mean you get to abuse them.)

I might not have a legal case, of course--it's not my field.

[JanieM]

bedtime: Finally, I wonder if Westboro realizes its protests are mocking and showing disrespect to Americans who died upholding the way of life not just for those terrible homosexuals but their cowardly and undignified church members as well.

For the record, the fact that the Phelpses are unreachably off in their own world is the answer to this question. There's not the slightest shred of use in imagining that their logic would be anything like ours about anything whatsoever.

[Ugh]

Guilt as in reducing the offense for which you are being tried. It can knock you down to simple assault, which is fined at $200, no jail time and not a crime of moral turpitude.

That makes sense, I guess when you said "take my chances with the jury" I was thinking you were going for a "not guilty" verdict, rather than a guilty verdict to a lesser charge.

[McKinneyTexas]

JanieM--I agree with that completely. My concern is a limited one. As much as a part of me would like to confront the Westboro's, I am more focused on a Westboro literally getting in someone else's face and screaming their bile. At that point, words aren't enough.

[Phil]

I am only partially joking. As a navy brat, I moved every two years. Like clockwork, at least one guy in my new class would have to try to beat me up. There was no talking, no reasoning behind the process, just see me after class, like it or not. I didn't like it, but learned that making the experience as unpleasant for the other guy as possible had a definite deterrent effect.

Huh. I was an Army brat, and this never happened to me. And not because I was really big or super cool or anything like that, presumably.

[McKinneyTexas]

I might not have a legal case, of course--it's not my field.

If it's a reasonable restriction on time, place and manner and not content, it might hold up. I'm not current on the details of First Amendment law, but it's certainly worth a try, although funereals are not interstate commerce and I wonder what the federal interest is--free speech maybe? Hard to say.

[jrudkis]

Maybe the brand can be co-opted. Having large groups march at gay pride parades with WBC signs and "Phelps loves Gays" might be a way. WBC churches around the country that perform marriages for gays, etc.

Using WBC as a term like "Santorum?"

Maybe once DADT is really over, Gay soldiers can start thier own branches of WBC on military bases, with Phelps as the "spiritual leader."

It could be a fitting legacy.

[liberal japonicus]

I tend to agree with Donald here. Looking at the write up of the oral questioning, it sure looked like they were going to define funerals as some sort of special event, so I'm a bit surprised at the decision. I appreciate folks making a full throated defense of the 1st amendment, but I think the law has to carve out some personal space for mourning, etc.

I'm also struck at this
"Albert Snyder had intentionally turned his son’s funeral into a public media event and himself into a public advocate"

I'm trying to find the descriptions of the funeral and planning to see what Albert Synder did to turn the funeral into a public media event. Unless it was his choosing to file a civil suit which turned the funeral into a media event. Which suggests that it is the standing up to WBC which automatically turns something into a media event. This seems really bizarre to me.

[McKinneyTexas]

Gay soldiers can start thier own branches of WBC on military bases, with Phelps as the "spiritual leader."

J is on to something here. Every gay organization should start to call itself the X branch of Westboro Church and send weekly reports to the home office along with a social summary--who's dating who, who married who, who's adopting. With pictures, of course. Perfect.

[jrudkis]

LJ,

Soldiers are public employees, and the Government is often providing things like an honor guard, military leaders to attend or speak (often flown from the Combat zone for the funeral), sometimes buried in public cemetaries like Arlington, and often with other public officials like Congressmen. I think there is an argument that if you choose to have a funeral that has so much Government support, it loses some of its private quality.

[Turbulence]

I'm trying to find the descriptions of the funeral and planning to see what Albert Synder did to turn the funeral into a public media event.

My guess is that once Phelps and co. announced they were going to picket the funeral, the whole town became (justifiably) enraged and people started organizing ways to support the family by shielding them from the WBC. I don't know if local papers regularly turn out for every soldier funeral, but I bet they do when huge crowds of people show up hoping to protect a grieving family.

In other words, to the extent that the funeral became a 'public media event' I suspect it was only because Phelps decided to target it in the first place, but that's just a guess.

[wj]

While they're at it, perhaps erecting a large screen display out front of WBC (not on WBC's private property, of course), with on-going displays of gay weddings, etc. at "WBC branch churches." Hey, it's free speech, right?

[bedtimeforbonzo]

Just to go off topic for a moment . . .

I'd like to ask McKinneyTexas how realistic with the law and its politics, mostly inner-office, is "The Good Wife" (assuming you've seen it; my only real appointment-TV these days). The lawyering is very good and it seems real when they portray the mostly idealistic lead character, Alicia, as conflicted. My only complaint: Why do law shows -- even good ones -- persist on making every judge quirky (or is that the real deal; can't believe it is).

[jonnybutter]

Ridicule is more powerful than anger. These guys are clowns and should be treated as such.

jrudkis is probably right from a tactical point of view. And I have some sympathy for Donald Johnson's pov. But I do think we lose something on both counts...

The idea that the Westboro people are *merely* crazy outliers doesn't seem quite right. True, they are trying as hard as they can to be offensive, but what they believe is not so far out of the mainstream: that homosexuality is an abomination to the Lord, and that our very fate as a nation (and perhaps species) depends on our understanding that and acting accordingly. Plenty of 'nice' evangelicals believe essentially that, too. Phelps and co. just take it a little more seriously.

Pretending they're just weirdos kind of lets our culture off the hook - the 'crazed lone gunman' dodge.

[jonnybutter]

italics b gone

[McKinneyTexas]

BTFB--I don't watch that particular show, but as for quirky judges, I've certainly seen my share, though most are fairly normal.

[JanieM]

jonny, I don't think it's "pretending" or "merely."

I agree that their basic views about gays are probably widely shared. I'm not so sure about their views on Catholics, Jews, Muslims, and the United States Marines. I'm not convinced that you're going to find a whole lot of Evangelicals out there who are happy about folks going around stomping on the American flag and yelling "1, 2, 3, 4, God Hates the Marine Corps," or who are all that eager to see themselves as being in the same camp.

That said, the extent to which there is a significant chunk of people who agree with WBC (about gays or anything else) is perhaps one of the good reasons for letting them rant while countering them in creative and peaceful ways. Who knows, seeing their own views caricatured so hatefully and carried to such mind-bogglingly stupid extremes might move a few people to actually rethink their position.

Precisely the reason why I'm happy about this case on First Amendment grounds is that I think it's more dangerous to shut these people up than not. It's better to have these ideas out in the open than to force them underground to fester and breed in darkness.

[JanieM]

gone?

[Countme--In]

How about a Jumbotron, situated just behind the choir at WBC of Mike Huckabee and his wife having sex in their bedroom.

True, it would take a while to capture this on film, given the infrequency of the ickiness.

[Countme--In]

Yet more protected speech:

http://www.salon.com/news/politics/war_room/2011/03/03/orange_county_muslim_protest/index.html

Cut and paste and click.

I council plenty more kicking in the balls and worse for the vermin, subhuman Tea Party protesters in this video, and for the female bug filth among them, I recommend their esophagi be ripped out of their chests and fed to their little cannibal spawn for their unsubsidized school lunch program.

Yes, I suppose it is better to have this kind of behavior out in the open rather than having it fester and breed in the darkness, but then on the other hand, it is too bad that Jews in Germany circa 1933 didn't engage in some fatal nut-kicking when there was still f7cking time.

I wish Hitler had remained in the darkness, scuttling under the baseboards as the sun rose every morning, rather than permitting the ovens at Auschwitz to be built on the foundations of his free speech.

These protesters against the peaceable Muslims and their children elected vermin filth to Congress, who are now planning murder from the top.

[JanieM]

Having it out in the open doesn't mean ignoring it. JFTR.

[Brett Bellmore]

"I definitely agree with Brett as far as he goes. But it's important to remember that there's a difference between the State labeling speech 'offensive' for political reasons, and truly, patently, *deliberately* offensive behavior. That is, there is such a thing as the latter - it's not all 'relative' or perceptual. Please step away from the PoMo quease..."

Oh, I agree there's a difference between speech being labeled "offensive" simply in order to strip it of constitutional protection, and speech actually BEING offensive. I just don't know how you could conceivably arrange to strip the latter of constitutional protection, without guaranteeing the former would become a lot more common.

For that matter, I don't agree that speech, no matter how offensive, should be stripped of it's constitutional protection. People ARE capable of becoming genuinely offended at just about anything they disagree with, and, again, that's likely to become more common if being genuinely offended gets you more than just a reputation as thin skinned.

[Donald Johnson]

" People ARE capable of becoming genuinely offended at just about anything they disagree with"

That's true, but getting offended because your dead son is being trashed by protestors at his funeral--well, I'm probably not going too far out on a limb in saying that virtually every human being in every culture that has ever existed would understand why the parents would be genuinely offended.

[Tony P.]

If the Westboro Batsh*t Crazies came to demonstrate in my neighborhood, I would lose weight, grow a beard, dress in a white robe with a crown of (fake) thorns on my head, and harangue them (in Aramaic, of course) with excerpts from the Sermon on the Mount.

Ideally, I'd arrive riding on a donkey, accompanied by a dozen guys in period costume waving palm fronds; gay guys, for choice.

The problem is, we might all be mistaken for terrorists -- what with the beards and the robes and all -- and not just by the WBC contingent. We might get arrested. Even if that didn't happen, our impersonation of The Savior and The Apostles might offend people -- and again, not just the WBC contingent. We might get sued.

Oh well.

--TP

[Brett Bellmore]

Yeah, I just don't see being genuinely offended as a license to force somebody to STFU. I'm pretty much a 1st amendment absolutist.

[Cranky Observer]

> catsy
> As numerous people have been pointing out
> over at Balloon Juice, the only shocking
> thing about this decision is that there
> was even one SC Justice who evidently
> needed remedial classes on the First
> Amendment before ruling on this case.
> None of the justifications cited manage
> to create a defensible basis for deciding
> that this protest that is offensive to
> that person is protected speech, but that
> protest that is offensive to this person
> is not.

So, how have those lawsuits by the liberal protesters who were locked up in cages 3 miles from the convention center at the 2004 Republican National Convention been going? Any recovery against the Republican National Committee, the federal agencies, or the NYPD who did the locking up and abridging of free speech rights? Roberts & Co. stepping up to preserve their rights?

Cranky

[russell]

I have nothing like the legal chops to sort out the majority position vs Alito's. I guess my only comment on the decision is that, if Nazis can march in Skokie IL, I guess Phelps can come to our home towns and make their particular brand of mess.

They came to my town in '05 to protest at the funeral of a local guy, a special forces officer, who died from burns and injuries he received in Afghanistan. The guy was a hard-core townie, and a hard-core soldier. Members of his family have fought in every war this nation has been in going back to the Revolution. Probably back to King Phillip's war. He served as a Marine, then again in the Army, then again in the Guard, then again in Army Special Forces.

Phelps and his folks came, and were basically ignored and more or less tolerated. When they got too loud, the Boston Police bagpipers turned it up to 11 and drowned them out. They had their 15 minutes, and then the town put the local boy to rest.

I like jrudkis' and Tony P's solutions, too.

I totally understand Synder's attempt to sue their sorry behinds, but trying to get died-in-the-wool jerks and @ssholes to shut up is like playing Mole Whack. Sometimes there's just not that much the law can do about it.

[liberal japonicus]

jrudkis and Turb, thanks for the observations. Not meaning to get hacked off with you, but having an honor guard, or government support to have your son buried means that your funeral is 'public', that seems like pretty thin gruel.

[Phil]

Brett, for once you and I are absolutely, 100% in agreement. Also, I am drunk, so that's a factor, but still.

[Donald Johnson]

I just don't see being genuinely offended as a license to force somebody to STFU. I'm pretty much a 1st amendment absolutist."

I usually am, but it occurred to me today when reading this thread to wonder why. The First Amendment is there to allow us to express our views on all sorts of things, some important and some not, but I don't have any moral right to act like a vicious insulting cretin at someone's funeral--the world will probably get along just great if the law doesn't uphold my precious right to cause emotional upset to grieving parents at their son's funeral.

If forbidding this behavior would be some slippery slope towards governmental censorship in general, then I'd go back to First Amendment absolutism. But it's not obvious to me that it would.

[fiddler]

Countme--In, your comment runs perilously close to calling for the death of various people, which is not allowed according to the posting rules of Obsidian Wings.

[russell]

Also, I am drunk, so that's a factor, but still.

In vino veritas.

[russell]

I just don't see being genuinely offended as a license to force somebody to STFU.

"Offended" is not the bar. Libel and slander are.

Roberts & Co. stepping up to preserve their rights?

No, they are not.

Sometimes the law is a whore.

[Gary Farber]

Countme--In, your March">http://obsidianwings.blogs.com/obsidian_wings/2011/03/protecting-the-odious-on-behalf-of-the-rest-of-us.html?cid=6a00d834515c2369e2014e5f9e879d970c#comment-6a00d834515c2369e2014e5f9e879d970c">March 03, 2011 at 06:28 PM is running a little low on the sense of humor that has made you and, er, your predecessors-in-spirit so beloved at ObWi and a fixture for so many years, and a little high in temperature, so if you could lower the temperature a bit, and raise the humor dial back up, or at least just dial down the heat a bit, we'd appreciate it.

Perhaps not using the term "vermin filth" unless referring to actual non-human varmints might be good?

Also, you're going a bit Godwinny, and that's rarely helpful, tempting as it is.

Generally speaking, I understand how enraging stuff is, but I'd encourage you to please try to avoid calling for violence, unless it's more along these lines, okay?

Thanks, and have a great weekend.

Beep-beep!

[Gary Farber]

What if one of the parents of these dead soldiers, so overwhelmed with grief, became so tormented by the Westboro protests that it led them to commit suicide?

Would that be a hate crime?

Suicide isn't a crime.

I don't know how we'd punish anyone who did it, if it were.

[Doctor Science]

What is confusing me, here, is that I'm not at all sure that what WBC is doing is "speech", on some level.

The picture I've gotten from slactivist's many posts about WBC over the years is that their perforances aren't truly political *or* religious. They are trolls, and they are doing it for money.

That is, they have discovered (probably initially by accident) a formula for inciting rage, trollishly, and then successfully sueing people who attack them back. It's an *operation*, not an honest political or religious statement.

That's why they picket funerals -- because that's where emotions are already raw, and where their trolling is more likely to succeed. They are, in every sense of the word, griefers.

And it pays -- Phelps has trained up his children (the ones who didn't escape) as lawyers, and lawsuits are their family business.

I don't know if the financial angle was brought up in the case, or if it could have or should have been.

I think, though, that *if* WBC has any sincere motivation, they have done the worst possible thing for their side. They make homophobia look not merely bad, but *monstrous*.

But I don't think they're really sincere. They're trolls and griefers, and the pain -- and money -- of others is their reward.

[Gary Farber]

Is that a limit on free speech--to require thathe speech be done where it can't be heard?

Of course it is. You're proposing a limit on speech. How can a limit on speech not be a limit on speech?

Your question seems to be whether a specific limit is a reasonable limit.

Which is an entirely different question from whether it is a limit.

>Or si that a reasonable way to balance the right of the speakers to speak with the right of others to be left alone, uninterrupted by the speech?

I don't have an opinion on this decision yet. I haven't read any of the opinions, nor the briefs.

So I literally don't have an opinion on this decision. I have some prejudices, and some principles, and I want to read the actual opinion and dissents, and some of the non-SCOTUS arguments as well, before drawing any conclusions.

It's no secret that I'm pretty hardcore in defending free speech, and always have been, ever since that little argument in third grade over the Pledge of Allegiance I had with the Vice-Principal of P.S. 99 that got me out of school for a while, and which we had to threaten a law suit over, save that I was obviously hardcore before that or I wouldn't have been citing West Virginia State Board of Education v. Barnette because I knew I was right.

(Yes, I was a very strange little boy; and I had reference books and the library, not the internet; but I carried my own fat two fat and very heavy reference books to school every day, because I was sick of the teachers misstating elementary facts and teaching the kids stuff that wasn't true.)

And I've been a member of the ACLU either literally, or verbally, most of the time, ever since (naturally, different local branches take different stances at times, and anyone who knows anything about the ACLU knows how gigantic some of the internal feuding has always been, and naturally I don't agree with every opinion ever taken by every state or local organization or the national -- but most of the time).

On the other hand, Alito made some very good points.

So I'm not commenting on the decision.

But I can speak to a number of the comments and commenters, because it's quite obvious that they haven't read the opinion, or many other SCOTUS opinions, or are very familiar with the somewhat erratic history of free speech in the U.S., through Sullivan, New York Times Co. v. United States , Schenck, Lovell, Brandenburg v. Ohio, etc.

But I can say -- and I am not a lawyer, and make no claims of great expertise, merely some knowledge - that I'm not aware of a "right of others to be left alone, uninterrupted by [...] speech" in our Constitution, so far as I know, or case history.

A right to privacy, such as may be found in Griswold v. Connecticut, protects one's own privacy from being invaded, which is to say, it, and Roe, give some rights to keep other people from interfering with your decisions.

It doesn't speak to your right to interfere with other people's behavior or speech; there is no such thing as a personal right to limit other people's speech, until we start getting into libel and torts again, which is to say, what's under argument -- or now decided, up to a point, is whether emotional distress means you can sue someone for inflicting it in such a case.

But there's no right to get other people to shut up so we don't have to listen to them.

If there were, then that would be against free speech.

To dive out of SCOTUS for a bit, and into the above more general history:

[...] John Stuart Mill argued that human freedom is good and without it there can be no progress in science, law or politics, which according to Mill required free discussion of opinion. Mill's On Liberty, published in 1859 became a classic defence of the right to freedom of expression.[17] Mill argued that truth drives out falsity, therefore the free expression of ideas, true or false, should not be feared. Truth is not stable or fixed, but evolves with time. Mill argued that much of what we once considered true has turned out false. Therefore views should not be prohibited for their apparent falsity. Mill also argued that free discussion is necessary to prevent the "deep slumber of a decided opinion". Discussion would drive the onwards march of truth and by considering false views the basis of true views could be re-affirmed.[19]

In Evelyn Beatrice Hall's biography of Voltaire, she coined the following phrase to illustrate Voltaire's beliefs: "I disapprove of what you say, but I will defend to the death your right to say it."[20] Hall's quote is frequently cited to describe the principle of freedom of speech.[21] In the 20th Century Noam Chomsky states that: "If you believe in freedom of speech, you believe in freedom of speech for views you don't like. Stalin and Hitler, for example, were dictators in favor of freedom of speech for views they liked only. If you're in favor of freedom of speech, that means you're in favor of freedom of speech precisely for views you despise."[22] Professor Lee Bollinger argues that "the free speech principle involves a special act of carving out one area of social interaction for extraordinary self-restraint, the purpose of which is to develop and demonstrate a social capacity to control feelings evoked by a host of social encounters." Bollinger argues that tolerance is a desirable value, if not essential.

I ahbor the Westboro church and the Phelps, but I'm not sure how I can say they're worse worse than Nazis, and I'm curious if anyone would like to make that argument.

If not, then I don't see how anyone can argue that Nazis inflicting emotional harm on Holocaust survivors is less than inflicting the emotoinal harm the Phelps church does and did.

But, of course, then we're back to the question of whether the Constitution guarantees a right to protecting us from emotional distress.

I'm greatly simplifiying of course, because I'm not writing a legal brief, and if I were, Alito already wrote it, apparently.

And I'll repeat: I don't have an opinion on this case as yet, because I haven't read the arguments and opinions, and I won't until at least another week or two, or maybe much longer.

And it would be, ah, injudicious of me to have an opinion without having bothered to read the arguments, or know the opinions, as I wouldn't know what the heck I was talking about; I'd be arguing with opinions I hadn't read, of course.

But I do know my past opinions on free speech and past SCOTUS decisions on free speech, and since I vociferiously defended and defend the rights of the bleeding National Socialist Party of America, and worse, to be as offensive as they can be, I do know where my prejudices on free speech and the law come down, and they're with the knowledge that if we don't defend the rights of those we find most odious, than we won't have any ground left to stand on when public opinion turns against our unpopular opinion.

The whole point of free speech is to defend the most unpopular opinions.

If it only defended popular speech, there would be no controversy at all.

And no minority rights.

In the words of Robert Bolt:

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I'd cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

And so would I.

I don't want prosecutors, or juries, to be deciding whose speech is sufficiently offensive that someone should pay.

And unlike McKinney, I support no obscenity laws whatever.

And I'm not very big on libel laws, either. Or Chaplinksy.

To be sure, we're talking about a tort, not arrest.

But the threat is the same.

But on this decision, I want to read the opinions, and see what I think of them, not make up my mind what I think without bothering to read the arguments.

bedtimeforbonzo:

Stipulating that I think you are right, I'd still be intrigued if such a case went to court and put in a jury's hands.

Whereas I'd be horrified. The whole point of protection of unpopular speech and minority rights is that we're protected from being judged by what's popular.

That's the entire concept of rights, rather than majority, or mob, rule.

The whole point is that rights protect us from the views of the majority.

If we simply had majority votes on who can do what, we wouldn't have rights; we'd just have beat the crap out of the unpopular.

The whole point is that such things be kept out of the hands of juries.

When we did put things like that in the hands of juries, we had the very popular Jim Crow, and the very popular "innocence" of so many like Byron De La Beckwith because they were put in the hands of juries.

Racism and antisemitism and homophobia are, you've probabably noticed, very popular opinions historically.

It's why lynching has always been popular.

Because it's popular.

That' what we want to be against.

I hope.

[Gary Farber]

Donald:

But I don't think there's any fundamental right to go to the funeral and carry a picket sign. That occasion is a sacred one and I can't see why limiting picketing poses a great threat to political speech.

There are laws against trespassing.

Laws limiting picketing... again, we need to be very careful. People need to be protected against physical harm.

But the standard to be used is to imagine any such law used against our own causes.

Do we really want a law that protects the Phelpses from having their church picketed?

In any case, what's at question isn't a law for against picketing. It's whether you can sue for emotional distress at being picketed. This is entirely different.

Should racists get to sue anti-racists because they're distressed at having anti-racist slogans shouted at them?

Should homophobes get to sue gay rights organizations who picket anti-gay businesses because they're emotionally distressed?

Jumping back, I'm falling asleep, but I want to elaborate on my mention of Chaplinsky, which is to say, what McKinney is talking about, which is defense of the concept of "fighting words."

Chaplinsky, a Jehovah's Witness, had purportedly told a New Hampshire town marshal who was attempting to prevent him from preaching "You are a God-damned racketeer" and "a damned fascist" and was arrested. The court upheld the arrest and wrote in its decision that

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting words" those that by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

– Chaplinsky v. New Hampshire, 1942

Never been a fan of this, myself. We have a right to start beating the crap out of people because we're angry?

This is where I start feeling sympathetic to Brett's stance on some things, because there are many decisions I think the Supreme Court got wrong. (Really, anyone want speak up in favor of Plessy v. Ferguson?)

Chaplinksky is one of them.

Fortunately for me, despite stare decisis, the Court has tended to narrow the concept.

[Gary Farber]

Yeah, I just don't see being genuinely offended as a license to force somebody to STFU. I'm pretty much a 1st amendment absolutist.

This is where Brett and I link arms and begin singing Kumbaya.

[Brett Bellmore]

Of course, I'm a whole freaking Constitution absolutist, which means at some point the singing dies away, and the liberals wander off... Actually, based on the popularity of campaign 'reform' on the left, they wander off during the first stanza, most of them...

"The First Amendment is there to allow us to express our views on all sorts of things, some important and some not, but I don't have any moral right to act like a vicious insulting cretin at someone's funeral"

The First amendment is legal law, not moral law. We do not, yet, live in the "All that is not mandatory is forbidden." dystopia, it's legal for people to be jerks.

"That is, they have discovered (probably initially by accident) a formula for inciting rage, trollishly, and then successfully sueing people who attack them back. It's an *operation*, not an honest political or religious statement."

"attack them back"; No, people who attack them. There's no "back" about it, that's the point. They talk, the other people attack. That's why they win the lawsuits, you understand. If they went after people with baseball bats, the whole 'business model' would fall apart.

And I wouldn't presume to claim they're insincere in their speech; For all I know, they think they're "Doing well while doing good."

[Cranky Observer]

> There are laws against trespassing.
>
> Laws limiting picketing... again, we need
> to be very careful. People need to be
> protected against physical harm.
>
> But the standard to be used is to imagine
> any such law used against our own causes.

Again, I'll point out that laws and administrative actions were used to prevent liberals from picketing at, or even stepping within 3 miles of, the Republican National Conventions in 2004 and 2008. Can you point me to where those actions were overturned by any court? Once again it seems that extreme First Amendment protections apply to Republicans and the hard right; to liberals and Democrats not so much.

Cranky

[jonnybutter]

The picture I've gotten from slactivist's many posts about WBC over the years is that their performances aren't truly political *or* religious. They are trolls, and they are doing it for money.

Again, agree with Brett. I don't see why their doing it 'for money' necessarily means they're insincere. They need money to survive and tell their vital story to The Nations.

For that matter, I don't agree that speech, no matter how offensive, should be stripped of it's constitutional protection. People ARE capable of becoming genuinely offended at just about anything they disagree with, and, again, that's likely to become more common if being genuinely offended gets you more than just a reputation as thin skinned.

Again, Brett is right here.

As foul as these Westboro people are, we mustn't forget that, generally, words don't physically hurt anybody. Yes, people abuse their 1st A rights all the time, and there is a gray area around incitement of violence - incitement being something that gets ignored a lot lately, so long as it comes from the Right - but we really need to err on the liberal side here.

It's hard to argue with Donald Johnson's idea. As he says, most anyone of our species would probably agree that a funeral or something like it ought to be sacrosanct. But politicians, given an inch, tend to take a mile, and I feel more comfortable not crossing that line. And while we're at it, let's be 1st A absolutists all the way: we do an awful lot of de facto officially respecting the establishment of religion in this country, which causes no end of problems, and fungi like Wesboro are the least of them. Why we don't tax churches is beyond me, for example.

[fiddler]

I've been playing with a thought experiment as I read the comments, and it keeps coming out in different ways:

Imagine that Muammar Gaddaffi of Libya [or any other major political figure from outside the US who has loud anti-US views] is standing in Times Square, New York City, picketing. He is obeying all local laws and regulations regarding location and safety, size and construction of signs, moving around so that he's not legally impeding anyone from going past him. He's not physically interfering with anyone. He is carrying two signs: "Want to Overthrow the US Govt? Ask Me How" and "US Foreign Policy Sucks".

Would this be covered by the First Amendment? Does it matter if he's a US citizen or not? His message is not personally aimed at any individual; the message clearly is commentary on national matters. He's not saying "Overthrow the US", but asking if anyone is interested in the idea. The way I read the majority opinion in Phelps, he'd be within First Amendment coverage -- but I am not a lawyer.

Or would Homeland Security just haul him away for questioning, to be overruled in an hour or three by someone from the Libyan Embassy with diplomatic immunity?

[Ugh]

Would this be covered by the First Amendment? Does it matter if he's a US citizen or not?

Yes. No.

Or would Homeland Security just haul him away for questioning, to be overruled in an hour or three by someone from the Libyan Embassy with diplomatic immunity?

I'm not sure it's an either/or proposition.

[russell]

Would this be covered by the First Amendment? Does it matter if he's a US citizen or not?

Yes. No.

Or would Homeland Security just haul him away for questioning

Only if he had a name that could be construed as Arab, and was not the leader of a nation with large mineral resources.

[Doctor Science]

johnnybutter:

Again, agree with Brett. I don't see why their doing it 'for money' necessarily means they're insincere. They need money to survive and tell their vital story to The Nations.

This is possible. But I think the evidence more strongly indicates that their goal *isn't* to tell their story, it's to make people angry and sad. They are griefers:

A griefer is a player who does things in a game to deliberately cause annoyance ("grief" in the sense of "giving someone grief") for the griefer's own enjoyment (or "lulz"). Such a player is a particular nuisance in online gaming communities, since griefers often cannot be deterred by penalties related to in-game goals.

[bold mine]

I suggest that WBC is deliberately causing *real* grief and anger, with the "lulz" being a feeling of righteous smugness -- and money. And, perhaps more important, it keeps the children from being psychologically able to leave, because they *know* that everyone outside the group hates them.

And I guess this decision proves that, indeed, they "cannot be deterred by penalties related to in-game goals". Though, as Cranky points out, some people apparently can get deterred just fine ...

[Doctor Science]

urg, failure to close link. fiddler, could you edit my comment with the /a? Or delete it and I'll comment again?

[JanieM]

Doctor Science, thanks for making me think about the Phelpses' business model; I hadn't paid much attention to it before.

It's an unusual approach, isn't it? Most people who want to campaign for something assume that they'll have to raise money from the world at large. So they beg, badger, bully, persuade, and in general spend huge amounts of time and resources trying to convince like-minded spirits to give them money, a lot of which goes to supporting the never-ending effort to convince like-minded spirits to give them money....

(I am resisting a rant on fund-raising practices....)

The Phelpses make their victims pay for the victimizing. Really, you gotta hand it to them for creative sh*theadedness. I suppose it's not unconnected to the psychology of people who don't want allies outside the closed circle of the family.