Death Watch

I do believe we are in the process of watching the death of a church, if you could call it that. The Westboro Baptist Church, (that vile, hate mongering empty shell of an institution that calls itself a church – for the purpose of this post I’ll grant them the same status) is dying. At least, that’s my call based on what I read.

You may remember that last year the church, and it’s founder, was hit by a 10.9 million dollar jury verdict, later reduced to 5 million, after convincing the jury that the Church intentionally inflicted emotional damage on a man whose son was killed in Iraq, by picketing the funeral with its usual completely irrational and bizarre allegations that the Iraq war dead have only homosexuality to blame for their untimely deaths, ignoring the roles of George Bush, Dick Cheney, the neo-cons, and everyone else that supported the war, including many religious supporters in numerous churches throughout the land.

The Church, and Fred Phelps and his daughter (a lawyer no less) are appealing the judgment, and have asked the court to stay the judgment pending the appeal, but the court has refused. (It’s not an automatic right to have the judgment stayed while it’s on appeal). The judge has ordered them to post cash bonds totaling $225,000.00 in order to avoid having liens placed on their real estate holdings, which are valued at almost $700,000.00. This would prevent them from borrowing money against them, pending the appeal.

This couldn’t happen to a nicer church.

I’m a big fan of free speech rights, and frankly, if they want to stand outside the courthouse, or another church, or my office, with pickets claiming that god hates fags, as they inexplicably seem fond of doing, then hey, this is America. Have at it! Why they feel the need to intrude upon the last resting places of anyone, regardless of how they die, however, make little sense to me. So I think that they should be allowed to picket the funeral of a war hero with their abominable ideas, however, they should also not complain when they are socked with a lawsuit for intentionally causing emotional suffering to a family that has suffered enough, and should be willing to then pay for the exercise of those free speech rights. It’s only fair.

Now apparently it has happened. It is doubtful the judgment will be overturned, because it is not in any way a prior restraint on their free speech rights to claim that a particular soldier died because god was punishing him for the sin of someone else. According to this church, some homosexual somewhere else is living it up with his gay friends, having no idea that what he’s doing is causing the death of someone on the other side of the world. As crazy as it sounds, they have a right to believe that, and a right to tell us about it. This judgment doesn’t stop them from saying that, and apparently hasn’t deterred them from continuing to do so, either. A least not yet.

But when they have assets that are significantly less than the amount of the judgment, and when the principals of the church show income of a relatively negligible amount, there’s a good chance that the unrelenting and pissed off father will be using that judgment as a means to shut down the church. It may not stop the Phelps’ and their supporters (mostly family) from continuing to spew hatred tinged bile from their mouths and brains, and it may not stop them from exercising their First Amendment rights to picket cemeteries, but it will go a long way towards depriving them of the financial support they need to do so.

Perhaps some day I’ll regret having taken this position, when someone sues me for exercising my First Amendment rights, and obtains a valid judgment against me. Somehow, I think the way the world looks at these matters will have to change substantially before I would really fear that.

Right now, I’ll take that chance, and gladly watch this particular church die.

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27 thoughts on “Death Watch

  1. Very self-righteous, SI — and dead wrong.

    Every time you or I, or both, call George W. Bush an asshole or a fuckwad or a lying piece of shit we intend to inflict emotional damage on him and his family and their crooked and/or ignorant followers. I sure hope I don’t get hit with a lawsuit about anything I said in that sentence.

    Free speech is FREE speech. Those of us who champion that right must defend it even when it means standing up for the most odious pronouncements. Punishing people for inflicting “intentional emotional damage” is bullshit. Our most fundamental liberty must be protected, even if that means occasionally having to support Fred Phelps’s right to be hateful.

  2. Hmmmm… it’s a hard call for me. I agree with Ex about free speech. But I also see the point of them intruding on a private ceremony. However, I know they most likely picket on public property. I don’t really know all of the details, so that makes it hard to judge.

    As much as I want to see them shut down, I hope it’s done the right way.

  3. Free speech does not entail the right to go anywhere anytime to say what you want. You can’t go into someone’s house to exercise your right to free speech, for instance. And you shouldn’t be able to intrude onto a funeral, either.

    Phelps has the right to say what he wants. But he shouldn’t be able to come to a stranger’s funeral and say it.

  4. Ex.

    I knew before I posted it that I’d get that response from you. But I disagree. As OG and Ridger indicate, free speech in this country is not absolute. As far as I’m concerned, however, when it comes to the government, is IS well nigh absolute. I have a hard time coming up with a good example where the government can place prior restraints on free speech (publishing troop movements, maybe?)

    However, my point is that the 1st Amendment starts out “Congress shall make no law…” The First Amendment is a proscription against the government preventing us from saying whatever the hell we want. So if the local municipality enacted an ordinance that said no picketing at funerals, I would say that was unconstitutional.

    But this man, the plaintiff in this case, the father of the boy who was buried, brought a private cause of action not to prevent the Phelps from speaking their minds at funerals, but to redress the damage to he and his family after the fact. He brought an action, and convinced a jury under the law, for a personal injury he suffered as a result of their exercise of their free speech rights. You may pooh-pooh the damage, but intentional infliction of emotional distress is a valid cause of action under common tort law in every state and under federal law (I think – I didn’t do research on that one, so I’m basing that on law school, and my memory of Prosser on Torts).

    As an example, if these picketers showed up, and a physical scuffle ensued, and the father was hit on the head, would you not allow him a multi-million dollar judgment for the personal injury of intentional assault and battery? Would that not dampen their free speech rights just as effectively? You’re not saying that the exercise of free speech rights allows you to damage people any way you see fit, are you?

    The First Amendment prevents the government from restraining our free speech, not private individuals from seeking redress for injuries.

  5. I hate that church and I hate Phelps, I think what they do is abominable and offensive and stupid and ignorant, yet they have every right to do what they do and the ruling against them fucks us all.

  6. SI and Ridger:

    Ridger is incorrect. A funeral is not necessarily private; it may very well be public. In fact, the funeral in question was at Arlington National Cemetery, a public space. One could make the argument — and I will — that all military funerals, even those not specifically in public spaces, are governmental propaganda. If picketers are banned, the government itself is forbidding any speech that contradicts its own nefarious public relations purposes.

    In any event, the concept of intentional infliction of emotional damages, whatever the fuck that is, is disgusting. We already have libel and slander laws that allow people to sue for real damages brought about by false and damaging writing and speech. What the fuck are “emotional damages.” If such a bogus charge is actionable in the courts, then it’s under the government’s aegis, and must conform to certain laws passed by — whom?

    By the way, it’s not my intention to inflict emotional damages on either one of you. But it’s frightening to see how ready you both are to give up one of our most profound rights just because you don’t like Fred Phelps. I don’t like him either. But people who really believe in free speech know that they must defend the very speech they hate most. Ask yourself: Would you feel the same way if the picketers had been an anti-war group?

  7. I think your outrage is misdirected, Ex. The point of the tort of intentional infliction of emotional distress is not to give a legal right of redress against just any insult or annoyance, but only against the most extreme and outrageous conduct deliberately intended to cause intolerable suffering. Harassment is one example; the First Amendment wouldn’t protect my right to call you at your house dozens of times a day.

    By any reasonable standard, I think Phelps’ conduct meets this definition – his intent was not to convey an opinion, but to cause suffering among the targets of his protesting, and there’s a clear pattern of this behavior on his part. The fact that he deliberately behaved so as to make himself near-impossible to avoid, as opposed to a book you can put down or a TV channel you can change at will, is a major part of that. Good riddance to bad rubbish, I say, and the sooner this judgment is carried out, the better.

  8. By any reasonable standard, I think the anti-war activists’conduct meets this definition – their intent was not to convey an opinion, but to cause suffering among the targets of their protesting, and there’s a clear pattern of this behavior on their part. The fact that they deliberately behaved so as to make themselves near-impossible to avoid, as opposed to a book you can put down or a TV channel you can change at will, is a major part of that. Good riddance to bad rubbish, I say, and the sooner this judgment is carried out, the better.

    Ebonmuse: I’ve changed one of your paragraphs slightly, substituting a different noun for “Phelps” and altering some pronouns. Do you still agree with it?

    By the way, calling me at my private home is harassment. Picketing in the public square isn’t.

    I’m appalled by how quickly some atheists are ready to curtail civil rights just because the offending party was the most revolting of theists.

  9. Ex

    As to your last, I’ve thought about that the most. I would tend to agree that if the defendants weren’t so particularly unsympathetic, and if they had not previously taken positions like picketing Matthew Shepard’s funeral, claiming he’s burning in hell even though it was he that was murdered, I wonder if I would be so ready to shrug off their 1st Amendment rights.

    But still, it’s very clear that we don’t have private 1st amendment rights. If you want to come in my home and spout political slogans for your campaign, I not only have the right to ask you to stop, and leave, I can have you arrested, albeit for trespassing, but the effect would be to terminate your so-called right to speak in my home.

    Look, the 1st Amendment is wonderful thing, but it has always been a restriction on governmental action, not private or personal action. Period. You can’t get around that by saying that it was a public funeral. ALL funerals are public in the sense that you need to have them outdoors on a quasi-public ground, whether it’s Arlington National Cemetery or the local Resurrection Cemetery. But there is no governmental prior restraint being imposed here. None at all. Use of the courts is not governmental action, unless the government is a party. So it boils down to an incidental effect of a private right to sue. If they have enough money to pay the judgment, they can go on picketing all the cemeteries they want.

    I said in my post I might rue the day I took this position, but I don’t think that day will ever come. If you remember a few years ago, and even actually more recently, many private individuals have used private causes of action for defamation to attempt to squelch speech. William Westmoreland did it, though I don’t think he really succeeded. But it’s common for large corporations with deep pockets to file defamation suits against critics of their products, knowing full well that the critics don’t have the financial wherewithal to afford the costs of defense, much less a possible adverse verdict. It works well, but it decidedly is NOT considered a constitutional violation of the persons right to free speech, though in practicality that is exactly what it is. Even the great case of NY Times v. Sullivan didn’t knock out the libel claim absolutely. The Supreme Ct simply said that as against a newspaper, the burden of proof for libel is exceedingly high, almost impossible to meet. But if you can, the libel cause of action is still applicable.

    So, it may be unfair, but it’s not unconstitutional, and that’s what it must be when we discuss freedom of speech, at least in a legal context.

  10. I will not sit idly by while so called sensible, rational people condone the censoring of certain opinions because THEY find them unsettling. Oh hem and haw all you want but that’s what this fucking boils down to.

    Now correct me if I’m wrong, but didn’t these assholes keep to the required distance from the burial? If so, then game over. They can say anything they want. Also, as to this so called invasion of privacy, what of paparazzi? I’d say in many ways the Phelps cult was showing more respect than the paparazzi shows celebs. They at least keep a proper distance from them and don’t endanger their lives chasing them down the road. Ah, but those are celebs, right? Who cares if they get harassed, but the family of a fallen serviceman? Oh, that’s different, right? WRONG! FUCKING DEAD WRONG!

    Ex took the calm route and just substituted “anti-war activists”. It could just as easily be us atheists, next. “Oh, the mental anguish and trauma hearing those filthy words uttered blaspheming our God, your honor! I, I don’t see how I’ll ever be the same. I have nightmares and chills and look, I’ve had this debilitating facial tick ever since that renders me incapable of maintaining my livelihood… etc.” Oh you know it could happen, and this fucking case opens that door WIDE OPEN. If we’re going to start ruling against people who say what we don’t want to hear, once again I say we’re all fucked, and you’re fools if you don’t see that.

  11. That’s a fantastic summation, Philly. It should be more than sufficient to make these so-called rational people see the error of their thinking.

    But I can’t resist addressing one last personal note to SI, whose position here shocks me.

    SI: Libel and slander suits have always required proof of tangible damage. That’s why the Westmoreland case is irrelevant. The soldier’s parents didn’t sue for defamation of any kind. They sued for some bogus damage that should have been thrown the fuck out of court.

    You’re right that the First Amendment is a restriction on governmental action only. I have no right to stand in your yard and call you names. But I do have the right to stand on a public street and call the president names — or Fred Phelps names. I can even say nasty things about the “little” people who have enlisted to fight a war of which I disapprove, or shout unkind things about you. That’s what free speech means. Now, if my speech causes your reputation to be damaged, and if you can offer some evidence of a tangible, quantitative monetary loss as result of my speech, and if you can show that my speech was false (I believe that in many localities you’d have to show that it was “malicious,” as well), you can sue me.

    If, on the other hand, you want to go whining to a jury because I hurt your poo’ widdle feelings — that is, because I “intentionally inflicted emotional damage” — you’re free to try doing that, too. But the judge ought to fine you for bringing a frivolous lawsuit and kick you out of the courthouse on your ass.

    It doesn’t just “boil down to an incidental effect of a private right to sue.” You can’t bring a civil action out of the blue; you have to be seeking some remedy. And there has to be some sort of statutory (read law-driven, or “legislative”) rationale in order for you to be allowed to make use of the court system. In other words, there must be some law on the books somewhere that, either directly or indirectly, justifies your belief that your grievance is actionable.

    If we as a society condone the concept of “intentional infliction of emotional damage” as legally actionable, we can kiss the First Amendment goodbye. By condoning the verdict you wrote about, you’re puckering up for a big tyrannical smooch.

  12. I’m as big a fan of the 1st Amendment as the next person (I’d go so far as to say that it is the single most important aspect of the US Constitution that made America what it is), but I think you place far too much stock in it. It can be abused, under the right the circumstances, and this, by all appearances, is one of them.

    I have no problem defending the free speech rights of scumbags, so please don’t make the mistake of assuming I’d gladly see theirs go down the drain because they fit that description. I simply don’t see their free speech rights being attacked, or destroyed, except at their own hands, and for that I rub my hands in glee, because it’s true poetic justice. Nobody made them be so odious, and nobody is taking away their rights to picket funerals. Only their money and assets are being taken away, and all that will probably (but hopefully not) do is force them to set up another church, somewhere else, probably next time as an off shore entity beyond the reach of creditors. (I certainly hope they do not have tax exempt status.) As I noted in the post, it doesn’t seem to have stopped them from picketing, so how can you get so defensive about it? Bottom line, their church will die, and I say good riddance.

    I don’t think that a personal cause of action for anything, including intentional infliction of emotional distress, negligent infliction of emotional distress, slander or even assault will destroy the 1st Amendment, for the reasons I previously said and need not repeat. You may not like that aspect of the law, but it is well established, and it serves a societal purpose (or it wouldn’t be there).

    SI: Libel and slander suits have always required proof of tangible damage.

    No, that’s not true. Defamation per se does not require a showing of any damages whatsoever. This is usually in situation where the person has been accused, wrongly, of a crime of moral turpitude, or of having a loathsome disease, or something similar. You simply prove the defamation and ask the jury to punish the individual, in effect asking the jury “What’s it worth”. The value is in the severity of the defamation, and the need to punish the individual. No actual tangible damages are needed.

    I only brought up defamation cases as an example of personal injuries that supersede the first amendment, in all cases. Even in the Sullivan case, the court did not rule that libel cases are precluded by the first amendment. If you can prove your case, you still get to sue. As it should be. If you couldn’t, the First Amendment would be used as a shield for all kinds of abuses, rather than what it was intended to be, a restraint on the government.

    The same holds for any other personal injury. In this case, it is you that is substituting your judgment for that of the jury, who actually heard all of the facts of the case.

    Incidentally, did you see this? Apparently the state of Kansas has tried to make it a first Amendment issue, and has been shot down. I agree in that case they should leave it alone. Let them picket who they want. But a word of advice to them: make sure you’re looking over your shoulder, and you know your victims. Not everyone is willing to find a lawyer and go to trial on this. But some are.

  13. I simply don’t see their free speech rights being attacked, or destroyed… Only their money and assets are being taken away

    Yes, and a battered wife certainly hasn’t lost her right to disagree with her husband simply because she got punched in the chops the last time she did. I mean, she’s still free to disagree, right? Oh, she might get popped again, but she hasn’t lost her RIGHT to disagree. No siree.

  14. Bad analogy. Nobody’s threatening physical violence on these idiots. Just letting them know that if they hurt someone, emotionally or otherwise, they have to pay the piper. If they weren’t aware of that before hand, they are now.

  15. SI:

    I simply don’t see their free speech rights being attacked, or destroyed, except at their own hands, and for that I rub my hands in glee, because it’s true poetic justice.

    Well, let me approach this another way with you. Let’s drop all the legalistic philosophy. Let’s forget about the literal meaning of the First Amendment. Let’s forget about what is and isn’t defamation in a tangle of legal standards that vary from place to place. Let’s close the law books entirely, as if we were starting our own ideal system afresh. Let’s just think about what freedom is and isn’t.

    The bottom line: You seem to be willing to see someone punished for speaking out and saying things you don’t like. In fact, you’re reveling in that person’s punishment, aren’t you? Well, that puts you squarely with the majority in this country — any country for that matter — who believe in their own free speech but no one else’s. I do hope you never have anything unpopular to say, because a lot of people have very sensitive psyches and get emotionally damaged fairly easily.

    So, for the time being, go ahead and rub your hands in glee. But don’t do it too much. Because you’re next, buddy, unless you change your ways. I think you’d better stop going to Christian blogs and expressing your distaste for religion — because, as you know, your expression of those nauseating atheistic opinions is an intentional infliction of emotional damages. Not only against theists, but against GOD, too — and you know how readily he gets upset when you criticize him! I hope you have deep pockets when one of those religionists sues you, and I hope you’ll take it good-naturedly when the denizens of this great Christian country of ours all dance in the streets after you’ve been silenced.

    Or maybe, to play safe, you should just start limiting your comments to photos of cute kitties. Of course, you might inflict emotional damage on people who are allergic to cats. But that’s a chance you’ll have to take if you want to be free to speak at all.

  16. The bottom line: You seem to be willing to see someone punished for speaking out and saying things you don’t like.

    While I’ll admit that the end result would appear that way, it’s not the speech I want to punish them for. It’s not what they think and believe and say that I want to punish them for. It’s for the damage they have done. I’m not going to second guess the jury. If that jury thought that the Plaintiffs suffered emotional damage, who am I or you to say otherwise? I respect our judicial system too much to do that on inadequate knowledge. Your take on this would simply overthrow what the jury found as if it wasn’t true. If that’s the case, then the appellate courts will see that, and throw the case out, not because it violates the 1st Amendment, but because the facts don’t substantiate the legal ruling.

    Frankly I don’t wish them to be punished for what they say and think. I think you know me well enough to know that. But I don’t see an award of this type as having any impact on my or anyone else’s speech. And, to turn it around full circle, if I ever said something that caused the type of mental anguish that a court felt had to be redressed, then I had it coming, didn’t I? I think I’m realistic enough (we are debating this in an academic vacuum) to know that it would take a lot more than simply saying something that hurt someone’s feelings to subject me to an award of this magnitude. Even if some Christian didn’t like my banner up there (one already complained)he can click away and go somewhere else. Try leaving your son’s funeral when these idiots show up.

    In this case, it wasn’t just the speech, but the actions of showing up at a quasi-private personal family-and-friends function, one to which the public is specifically not invited, and say things that have no place at a funeral, that have nothing to do with the death and burial of the decedent, that was intended to cause emotional pain to people who already have suffered one of life’s greatest emotional anguishes, that of burying a child, all to make a silly, nonsensical point so as to obtain publicity for their cause and presumably use it to drum up donations. There’s more than speech involved in that.

  17. No, it’s a perfectly good analogy. Both are penalized for exercising their rights, but you’re correct, they technically still have their rights, only if they try to exercise them, WHAM!

    It’s not what they think and believe and say that I want to punish them for. It’s for the damage they have done.

    What fucking damage?! Are you kidding me? Where does it end? At what point is something said hurtful and what point are you supposed to suck it up and take it? Where’s that tipping point? More importantly, how can you even conceive of a tipping point?

    You might want to give this a read:
    The protest for which they were fined was held in a public space. It was held in accordance with the state and federal law. It was held with materials that are not legally defamatory. While “God Hates Dead Soldiers” and “God Hates Fags” (two of Westboro’s infamous picket signs) are venomous and immoral, they are at their core not much different from those mainstream evangelicals who picket gays with signs like, “Repent or Perish” or other religious based condemnations of homosexuality…

    We have expressed great concern whenever the laws have been passed to ban or limit Westboro’s protests, and we have similar concerns over this new ruling. It’s very easy to look at Westboro’s grotesque legacy and jump right to a place where you feel any punishment is deserved. However, we have to dig a little deeper and look at these limitations — the likes of which could someday be used to limit any protests with which our government deems unsavory — with a critical eye. And at this point, our eye is not able to look at the jury’s verdict without blinking.

  18. SI:

    A few comments and questions, and then I’m done with this post:

    … it’s not the speech I want to punish them for. It’s not what they think and believe and say that I want to punish them for. It’s for the damage they have done.
    SI, that’s a totally dishonest statement. They didn’t physically assault anyone or destroy any property. They didn’t even hurt anyone’s reputation, because nobody except a lunatic pays any attention to them. All they did was speak their nonsense. Any alleged damage they did could only have been done through speech. So that is what you want to see them punished for. You didn’t like what they said. So hooray. Let the system take their money. But you’d better guard your own wallet.

    In this case, it wasn’t just the speech, but the actions of showing up at a quasi-private personal family-and-friends function, one to which the public is specifically not invited, and say things that have no place at a funeral, that have nothing to do with the death and burial of the decedent, that was intended to cause emotional pain to people who already have suffered one of life’s greatest emotional anguishes, that of burying a child
    Perhaps the family should have sued the Bush Administration for emotional damages. The original emotional anguish was caused by America’s war policy.

    All right, a few questions about the court proceedings. You don’t want to second-guess the jury, but let’s second-guess the judge. He’s a governmental official, right? I’m aware that the award was reduced, but let’s look at the original freedom-loving verdict. I didn’t hear the arguments in court and neither did you, but let’s look at the facts as we know them and ask ourselves:

    How could a jury possibly justify a $2.9 million award in compensatory damages. Compensation for what? What were the judge’s instructions on that one? You’re a lawyer: Can you think of any way that a compensatory award of that size would have been just?

    $6 million punitive damage award for “invasion of privacy”? If the family had wanted a private funeral, they could have had one. But they didn’t; instead they had a military funeral which is, by definition, not private. It was paid for by the American public, and the corpse was buried in a public cemetery, the most public cemetery in the country. Not to mention that the whole affair was a very public occasion for both the marine corps and a blood-thirsty administration, who either directly or indirectly, took that wonderful opportunity to propagandize about the “sacrifice of our boys.” I wasn’t there, so I don’t know specifically what was said, but if the rah-rah military aspect weren’t going to be invoked, the funeral would not have been a military one. I can empathize with the attendees’ pain that a loved one died. But this funeral was a taxpayer-funded demonstration. So, no, it wasn’t a “private” funeral. It was a very public one. The family invaded their own privacy when they chose to go that route.

    [Side Note: I suppose you know about the Respect for America’s Fallen Heroes Act of 2006, a blatantly unconstitutional law that forbids protests within 300 feet of any cemetery during a military funeral. A number of states have passed similar laws. I’m not the only one who finds those laws horrifying; so does the ACLU. I’d like to think that you do, too.]

    OK, let’s get to the $2 million dollars punitive award for “emotional damages.” That’s a totally bogus construct, as I’ve said in all my other comments. If the father needed medical care because of his “emotional damages,” then perhaps a compensatory award could have been justified — if it could have been shown that his emotional distress was caused by the picketers. Similarly, if he missed work because he was too distraught to perform his duties, maybe that would justify a compensatory award, too. Maybe. But a total of $10.9 million, more than two-thirds of which was a punishment? For speaking out? In a country that supposedly champions free speech?

    That’s a dangerous precedent for you to be doing a jig about.

  19. Ex and Philly

    A couple of things.

    First, according to the Complaint filed by the father, his son was not buried at Arlington, he was buried at the family’s Catholic Church, St John’s Catholic Church in Westminster MD (hence the Maryland law suit. If it was in Arlington, it would have been filed in VA, where I believe Arlington is, south of the Potomac). So it was not a public funeral, it was a private one, one where a reasonable person would expect a certain amount of privacy, one where you would not expect your son’s funeral to be used by people who are not making a point about the funeral, but about something entirely unrelated to the funeral, primarily for their own propagandistic purposes. In effect, the church turned an otherwise private occasion into a public circus.

    Here’s the Complaint.

    Second, there was a count for defamation per se, which as I mentioned above, requires no damages to be proved. However, the Judge wrote a memorandum opinion when he cut the damages, which does tend to explain where the jury award came from. It looks like the defamation claim was dismissed on summary judgment, so the award was based more on the invasion of privacy claims, not the speech part of the complaint for what was put up on the websites. Read the opinion.

    Third, your respective arguments are not so much in favor of free speech, as they are against the legal basis for the judgment in the first place. You can’t imagine such a large sum of money for hurt feelings, or something like that. Look at what you’ve written up there. I don’t dispute, and have not even attempted to dispute, the speech element of the controversy. Standing alone, what they say is free speech. All I’ve been saying is that I will not substitute my judgment for that of the jury who probably spent days listening to testimony before they came to their verdict, or that of the judge, who did the same, and I don’t think either of you are qualified to pronounce on the verdict any more than I am.

    If the verdict is upheld on appeal, I won’t shed a tear for the defendants, and neither will you. If it’s overturned on free speech grounds, I’ll accept that, but if it’s overturned on the basis that there was no evidence to support the verdict, then you’ve got valid grounds to complain. I simply don’t share your concern for the first amendment. The more I read about this, the more I’m convinced that the verdict will be limited to its facts. There are no broad 1st amendment ramifications here. As the trial Judge noted: “Quite simply, the Supreme Court has recognized that there is not an absolute First Amendment right for any and all speech directed by private individuals against other private individuals.”

    As for the Respect for America’s Fallen Heroes Act of 2006, I’ve already commented on the Kansan version of the statute. Look at what I said a few comments up stream. I’m totally against governmental restraints on speech of any kind. And I have money automatically deducted from my bank account on a monthly basis by the ACLU to back that up, though in all honesty, it was the Dover trial that first motivated me.

    Now why don’t you admit that what really pisses you off is that those lawyers might actually make a nice bundle on this case, and will probably be the only ones that do. 8)

  20. The jury was suckered in by Snyder’s emotional sobbing about how the event makes him vomit when he thinks about it, how he can’t think of his son without thinking of them and how it all has forced him into therapy and the stress has exacerbated his pre-existing conditions. So let’s get this straight, punitive damages were awarded because WHAT THEY SAID through signs and through an “epic” on their website upset Mr. Snyder. This is EXACTLY what I described above with my little bogus testimony from someone claiming emotional distress from hearing atheist comments. Exactly the same fucking thing. Not a free speech issue? Really?

    Next is this issue of “intrusion of seclusion”. (For those unclear on it, intrusion upon seclusion occurs where there is an invasion, through conduct offensive to an ordinary person, of an individual’s information in which he or she has a “reasonable expectation of privacy.”) Now what gets grossly overlooked here is Snyder admits he never saw the Phelps protest at the funeral. He only saw the protest on tv and later, when looking for info on his son online, found the godhatesfag website and read the “epic” they wrote on his son. So the first case of intrusion, the actual witnessing of the intrusion, didn’t take place. In the second, there were no private details, no invasion of an individual’s information, that were made public.

    The issue of intrusion in this opinion is too closely married to the punitive judgement in light of Snyder’s boo-hooing about seeing the coverage of the protest and reading the epic on the website being ‘a wound that may never heal’ (I forget exactly how it’s worded in the opinion). In fact, I’d say the two are being confused, so that intrusion is being decided BECAUSE of the belief that Snyder suffered damages, and not on the merit of whether there was an actual intrusion, and if that’s the case, what’s the substance of the damage? He got upset at seeing the Phelps’ signs and reading what they wrote on their website. SO it all boils down to an issue of free speech, essentially, can you be found at fault if something you say upsets someone. That is fucking frightening.

  21. SI:

    Well, I was misinformed about the cemetery. Sorry.

    Still, that doesn’t change my bottom line. Any punishment of pure speech — and that’s all the Phelps family did was speak and write — is frightening.

    As to the complaint, I’ve read it. If I had been the judge, I would have dismissed it as totally without merit. That probably explains why I’m not a judge. But there are lots of allegations in the complaint that are just thrown out as bald assertions meant primarily to appeal to the emotions. There are no specifics about what the so-called damages were.

    There are are a few points for you to consider:

    1. The mere fact that the plaintiff refers over and over to defamatory content on the defendants’ website ought to scare the living shit out of you. It does me.

    2. In the Summary of Plaintiff’s Claims, the complaint lists many irrelevant — but highly incendiary — facts about the beliefs of Westboro Baptist Church. None of those statements has anything whatsoever to do with any of the specific claims brought by the plaintiff. They’re included merely to engender an emotional response. The same kind of incendiary comments could just as easily be made about atheists.

    3. I’ve always thought that in order for a defamation action to be successful, the plaintiff must show that he or she has actually been defamed, that someone has believed, or might believe, the assertions. (See Hustler v. Falwell). Did the plaintiff make any attempt to show that the assertions were given credence, or might be given credence, by anyone? Apparently, the judge sees the situation in the same light, since he threw out the award for defamation, per se. However, given that the punitive “defamation” award was for $2 million, but the punitive “invasion of privacy” award was for $6 million, I don’t think it’s unreasonable to make the inference that the jury was either instructed by the judge or told by the plaintiff’s lawyers how to disburse the awards to best withstand legal challenges. It’s doubtful that someone in the jury room finagled that, don’t you think?

    4. The plaintiff doesn’t say where the picketing took place. It’s a cinch that Phelps and his crew weren’t trespassing. Isn’t religious speech on a public thoroughfare protected in this country? I don’t like Phelps’s religious beliefs, but I don’t like any religious beliefs. Could I sue for emotional damages if a minister gave a loud sermon in the park across the street from my house? What if he talked about how hateful atheists are? How about if he included those assertions on his website? And let’s say he knew me and mentioned my name specifically, saying that I was damned, and the father of demon spawn, and ate Christian children’s brains for breakfast? Is that an invasion of privacy? Of course not. The assertions are nonsense.

    5. From the complaint: The defendants’ actions and statements were highly offensive to a reasonable person.
    Wow, I really want that piece of bullshit to be a standard for taking action against speech in the future. You do realize, don’t you that most Americans find atheists statements “highly offensive to a reasonable person” (if by “reasonable person” you mean the average American moron).

    6. The Civil Conspiracy section of the complaint is pretty scary, too. If you and I travel to take part in an anti-war protest, or an outdoor atheist convocation, and if people’s feelings are hurt by our “outrageous” behavior, we’ve engaged in just such a conspiracy ourselves.

    This whole case goes to the very heart of the concept of free speech. Speech isn’t free if punishments can be imposed just for hurting someone’s feelings. The judge’s opinion specifically states that the punitive damages are meant to have a deterrent effect. Don’t you find that chilling, you whose outrageous, godless assertions on your website intentionally inflict emotional damage on Christians every single day? I have it on good authority that quite a few of your theist visitors throw up and cry for about three hours every time they read a new one of your posts.

    Do I have to spell out the parallels any more clearly to you?

  22. I have it on good authority that quite a few of your theist visitors throw up and cry for about three hours every time they read a new one of your posts.

    That’s a low blow. We all know it’s because of my writing style, not my content. 😉

  23. Not only weren’t they not trespassing, they were far enough away that the family didn’t even know they were there until afterwards when they watched the news.

  24. IANAL, but my tendency is to agree with Exterminator and Phillychief regarding this case. I’m leery of judgments, laws, etc., that limit or penalize free speech.The Westboro gang’s actions are reprehensible, tasteless, undignified and disrespectful, to say the least, but they are not crossing legal lines. The fact that the family became aware of the “harassment” after the fact doesn’t sit well with me either. It’s obvious that Phelps and his motley crew did not interfere with the funeral. Clearly, the family’s grieving did not end when they left the cemetery, and in a very deep way it will never end, but any pain and suffering caused by the Westboro gang occurred well after the fact. I think this judgment was based on emotion and distaste for Phelps rather than sound legal grounds. That bothers me a lot.

  25. I with you on this, Spanish.

    I think Ex at al are seeing a free speech issue where it doesn’t apply (no government repression involved) and are reifying the whole principle of free speech. They’ve gone too far into the abstraction of a principle from reality.

    And the argument that it’s different from defamation because there is no measurable loss is absurd. Behaviour like this directed at grieving people could lead to the family’s suffering extreme depression, PTSD or committing suicide. Is that worth less than a financial detriment caused by a loss of reputation.

  26. Heather

    Thanks. I agree, obviously.

    I think the issue comes down to the question of whether you believe free speech is absolute, without exception. IOW, anyone can say anything to anyone else anywhere they want, without fear of consequences. I don’t think that’s what our Constitution intended. It was supposed to be a restraint on government, not a carte blanche for individuals to use speech to harm other individuals.

    You have to look to the intent behind the speech. If you are speaking because you have something you think needs to be said, that you think is important, no matter how reprehensible the idea is, then that speech should be left untouched. However, if your intent is to simply say a reprehensible thing for the pure sake of reprehensibility, in order to garner public attention for your cause, (on the theory that even negative attention is good) then I think you should be held accountable for intended or unintended consequences if your speech. Does that dampen the unfettered exercise of speech. Damn right it does, as it should.

    Defamation is a good example. You can’t say things that are untrue, that you know are untrue, that cause damage to other individuals. You are held accountable for that, and you have to think before you speak. That’s a prior restraint and perfectly acceptable.

    The critics in these comments have really not attacked that principle. They have simple said that in this case the Father hasn’t proven his case. The judge and jury disagreed. I’ll defer to the them.

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