What Speech Would Be Free In Alitopia?

Supreme Court Justice Samuel Alito is the lone dissenter in the high court's ruling for the Westboro Baptist Church in Snyder v. Phelps.

The case involved a March 2006 demonstration by Rev. Fred Phelps' and some members of his family at the funeral of Marine Lance Cpl. Matthew Snyder.

The protest at Snyder’s funeral -- one of many that members of the Topeka, Kansas church have organized, often (and in this case) bearing signs that read "God Hates the USA/Thank God for 9/11," "Thank God for IEDs," "God Hates Fags," "Pope in Hell," etc. -- was confined to a public area adjacent to the event. At their nearest approach, according to Chief Justice John Roberts' ruling, the demonstrators and the funeral party were separated by a distance of at least 200 feet.

Still, the Maryland U.S. District Court later awarded Snyder's father Albert Snyder $5 million in damages for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. (Snyder also filed tort claims on defamation and publicity given to private life, which were dismissed.) An appeals court overturned this award, ruling that Westboro's signs were entitled to First Amendment protection because they addressed "matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric."

The Supreme Court's 8-1 ruling upholds that judgment. You can read the whole decision here. With all due contempt to Fred Phelps and his offspring, I think the only thing wrong with this ruling is that language about "matters of public concern" and "hyperbolic rhetoric," because it seems to assume speech needs to earn its freedom through a combination of criteria. If, for example, Phelps had not used hyperbolic rhetoric but calmly made the case, "Snyder, I'm glad your son was killed by the enemies of this country," would that be protected speech? (I am relieved to know "Pope in Hell" is not provably false.)

Alito disagrees with the ruling in language that is surprisingly touchy-feely. "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he writes, citing with Snyder's "acute emotional vulnerability" and "severe and lasting emotional injury" in the face of a "malevolent verbal attack."

When he says "verbal attack," Alito is speaking literally. Referring to Stephen Breyer's hypothetical case in which "A were to physically 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," Alito concludes, "This captures what respondents did in this case."

That seems like a stretch to me. You are free to ignore nasty words in a way that you are not free to ignore physical violence directed at you. The analogy breaks down even further because in this case the offensive speech was not an assault designed to bring attention to the message. It was the message itself. While he believes the majority was wrong in its belief that Westboro's message was general in nature rather than specific to Matthew Snyder (and thus potentially actionable), Alito also seems to be supporting an idea I generally associate with Catherine MacKinnon: that some ideas are in and of themselves capable of causing "great injury" and a form of "brutalization."

Alito also seems to endorse the "funeral exception" Damon Root reported on back in October.

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  • ||

    the demonstrators and the funeral party were separated by a distance of at least 200 feet.

    Less than 70 yards. Not very far at all. Easily audible to the funeral party.

    I think this is the right decision. No one has a right not to be offended, and all that.

  • Rich||

    Back to futzing around with the, um, *Second* Amendment!

  • lunchstealer||

    Snyder didn't find out about about the protest until he saw a news report about it after he got home from the funeral.

    They did not even come close to disrupting the funeral.

  • kinnath||

    I agree that this decision was correct -- the WBC is clearly engaging in speech protected by the 1st.

    On the other hand, if I'm on the jury in the trial of a distraught parent of a dead soldier that unloads a clip into the WBC, I'm mostly like voting to aquit.

  • prolefeed||

    I think this is the right decision. No one has a right not to be offended, and all that.

    I take it that was understated sarcasm?

  • prolefeed||

    Oh, wait, I thought you were referring to Alito's dissent.

    Nevermind.

  • ||

    I'm sure Phelps will have many long and intellectually stimulating debates with the pope, at some point in the future.

  • Vermont Gun Owner||

    What's up with the Pope in Hell signs? I don't even get what they are trying to say.

  • MJ||

    A weird little Baptist pastor is virulently anti-Catholic, what is there not to get about that?

  • Fiscal Meth||

    He's like Woodrow Wilson with a congregation rather than a government, as it should've been with Wilson.

  • Fluffy||

    Here's why Alito is a dick:

    Given his background, he would no doubt SWEAR UP AND DOWN that he would protect your right to, say, hold a public demonstration where you read from the Old Testament Book of Jeremiah.

    And there is absolutely nothing in Westboro's material other than technical terms like "IED" or modern colloquialisms like "fag" that isn't in the Book of Jeremiah too.

    He just doesn't like these defendants. That's really the entirety of his dissent.

  • Other Derp||

    I don't think anyone likes the WBC...

  • Pope in Hell||

    I do.

  • Vicar in a Tutu||

    Me too!

  • Desmond Tutu||

    I assure you, that vicar was not in this Tutu.

  • Resto Druid FTW||

    That was a Smith's song, was it not?

  • WTF||

    Yep - The Smiths

  • Barely Suppressed Rage||

    Vicar in a Tutu?

    I'm familiar with Girlfriend in a Coma, but haven't heard that one.

  • celtigirl||

    Great track on "The Queen is Dead" album.

  • ||

    Vicar in a tutu
    I know
    I know
    It's serious...

  • Fiscal Meth||

    God does. Otherwise why would He make a point of telling them all about everything He hates?

  • ||

    Westboro Baptist, or at least representatives of the church, have been or are in the process of protesting at the funerals of some of the dead cops in St. Petersburg, Florida. I don't know too many details beyond that, but I hear Bubba the Love Sponge talk about it when I forget my sanity and the morning and turn on his radio show on my way to work. That guy is such a fucking boot-licker.

  • ||

    ...forget my sanity and in the morning and turn on his radio show...

    Where did that "and" come from?

    He also occasionally has Tucker Carlson on the show, so I really don't know what's going on half the time. He's either an authority worshipper or he's a quasi-liberal. I think I've heard him call himself libertarian before, though.

    Suffice it to say, recently I just listen to a CD on repeat during the morning commute.

  • ||

    He's either an authority worshipper or he's a quasi-liberal.

    Those aren't mutually exclusive, you know.

  • ||

    I commute over the bridge every day, and I just listen to books on CD. Our early morning radio isn't good, by and large.

  • Sudden||

    Adam Corrola needs a show back on radio.

  • Paul||

    This.

  • ||

    Well even worse is that I live in Orlando and for who knows what reason the people in charge over here think it's worth syndication in central Florida.

    And to RC Dean above, I know the two aren't mutually exclusive, and he may in fact be both. But he's either ranting about the violent rhetoric of Sarah Palin or the "War against cops" or he is talking about while he doesn't use drugs, he doesn't think it should be illegal to do so.

    So he contradicts himself quite a bit. It's not that he is one OR the other, it's that he plays both roles at the same time.

  • ||

    I'm glad the decision went the way it did, but just because speech is free doesn't mean you're free from responsibility for what you say.

    Fraud isn't protected speech. Threatening to kill someone if they don't empty the cash register isn't protected speech, ... It isn't protected in a criminal case--and it isn't protected in a civil case either. Even in a slander case, you get to recover damages from people who purposely used their untruthful speech to harm you.

    Should people purposely using speech to inflict emotional damage on a mourning family be held financially responsible for the emotional damage they do?

    I see perfectly libertarian arguments on both sides of that call.

    If I purposely disrupt and ruin your wedding to score political points? I expect to at least have to reimburse you for the cost of the wedding.

    I don't want to see the government getting into enforcing more and more speech laws, but holding people responsible for the damage they do to other people on purpose probably shouldn't be out of bounds in Libertopia either.

  • Fluffy||

    Fraud isn't protected speech. Threatening to kill someone if they don't empty the cash register isn't protected speech, ... It isn't protected in a criminal case--and it isn't protected in a civil case either. Even in a slander case, you get to recover damages from people who purposely used their untruthful speech to harm you.

    I think the problem here is that you've heard bad-faith arguments from people who hate freedom for so long that you've internalized them.

    The "speech" part of the fraudulent activity isn't the criminal part.

    The same goes for the armed robbery.

    Slander torts, I think, falsely invest a property right in something no one can own or should own. I would happily see them consigned to the dust bin of history.

  • ||

    That's absurd.

    Speech is just like gun rights.

    You're free to own a gun and use it responsibly. You're not free to use it to commit a crime.

    The second amendment doesn't protect armed robbery.

    The first amendment doesn't protect slander or fraud.

  • Fluffy||

    If I tell you I have a cure for cancer, that's protected speech whether it's true or not.

    It's only fraud if I take money from you while promising a cure for cancer and then fail to deliver that cure.

    That makes it pretty apparent to me that the criminal part of the commission of fraud has absolutely nothing to do with speech.

    Everyone who argues that laws against fraud prove that "we can limit free speech" is arguing in bad faith. They are deliberately holding up a non-speech example, so that they can then say, "...naturally, since this type of speech isn't protected, that means we can limit whatever other kind of speech we feel like."

    I wish I could say that I am surprised that you have been taken in by this argument, but I'm really not.

  • ||

    Freedom and responsibility are inextricably linked. We're responsible for what we choose to do, and we're free to do that for which we can be held responsible.

    Libertopia will only happen when everyone is responsible for their own behavior--when we're all free to do as we please with the understanding that we cannot avoid responsibility for what we do.

    Everybody who tries to avoid the responsibility side of each and every freedom we have is therefore necessarily subverting the libertarian cause. Embrace your responsibilities. You're responsible for the choices you make. You're responsible for what you choose to say.

    You're responsible for what you do.

    No really.

  • ||

    Freedom of speech doesn't mean freedom from the consequences of speech.

    I think there is a place for damages for pure speech. It needs to be closely circumscribed to prevent abuse, of course, but being responsible for the harm you cause has to be a core element of any free society.

    For example, if someone were to, say, call your boss and tell a bunch of lies about you, maybe back them up with forged documents, and get you fired and blackballed from your industry, I think you should be able to sue for damages.

  • Fluffy||

    I don't.

    The theory of the law that grants you damages for that is absurd.

    You can't own my good opinion of you. You can't have a property right in it.

    I can decide to hate you or to think you suck based on any criteria I want, or no criteria at all. I can arbitrarily like you, and arbitrarily not like you, and you can't say shit about it. If I like you today, and you gain a material benefit from that, that's great - but I can decide to hate you tomorrow, and you can't come and whine to me that you had a property right in my good opinion and that I can't change my mind.

    That being the case, you can't possibly have an actionable case against a third party who says something to me that changes my opinion of you. True. False. Relevant. Nonsensical. If you can't have a property right in my opinion of you, you can't possibly have an actionable harm resulting from the alienation of my good opinion of you.

  • Barely Suppressed Rage||

    The theory of the law that grants you damages for that is absurd.

    Oh well. A couple hundred years worth of well-developed common and statutory law disagrees with you on this point.

    You might not feel that it is the case, but reputation among your community is a very valuable thing to most people. A good versus bad reputation affects your entire life. Having your good reputation destroyed unfairly can have devastating effect on your lifestyle and livelihood. This is particularly so for most professionals (doctors, lawyers, accountants, etc. - reputation is everything for many fields).

    I agree that some defamation cases are downright silly. But they can be dealt with on a case-by-case basis, and this does not mean that the tort of defamation should be abolished.

    It's interesting to see how many self-professed libertarians argue vehemently for a faithful adherence to the Constitution and the principles it stands for, and hearken back to the original intent or original understanding (which, BTW, are not entirely the same thing), and yet seem to not care for the notion expressed by the Framers that "with great liberty comes great responsibility."

    You are absolutely free to say pretty much whatever you want, wherever and whenever you want. But if you start fucking with somebody's life or ability to make a living by spreading false and defamatory shit about them, you should be prepared to deal with the real and demonstrable damages you can cause to that person.

  • Fluffy||

    You might not feel that it is the case, but reputation among your community is a very valuable thing to most people.

    It doesn't matter if it's valuable.

    What matters is if you can own it.

    Please explain to me how you can own my opinion of you. That's a necessary starting point of any discussion.

    The common law, arising as it does from medieval legal traditions, will naturally contain within it any number of throwbacks. Where those archaic features can't be supported by rights-based argument, they lose, as far as I am concerned.

    BTW: the only reason slander has any effect is because the listener assumes that if the speech was false, "somebody would sue". Attempts at defamation in contexts where anything goes [anonymous internet boards, for example] generally meet with apathy and are utterly ineffective. You believe that in the absence of the potential for litigation for slander, reputations would be at greater risk, but you don't really have any evidence for that one way or the other. It's equally likely that in an environment where no one had any recourse for slander wild and outrageous statements would be so common that they would be completely ignored.

  • ||

    It needs to be closely circumscribed to prevent abuse, of course...

    As a lawyer I can't help but wonder who is going to closely circumscribe said damages to prevent abuse.

  • Matt||

    Every law is susceptible to abuse. Even in murder cases the government could maliciously prosecute defendants. That doesn't mean murder shouldn't be a crime.

  • ||

    True, but you have to draw the line somewhere. From a public policy standpoint, should extreme scenarios such as the Phelps incidents form a basis for a significant expansion of our judiciary?

  • Matt||

    How is this an expansion of the judiciary. All the first Amendment says is "Congress shall make no law...abridging freedom of speech"

    Torts are civil cases, they have nothing to do with criminal law!

  • sevo||

    "Should people purposely using speech to inflict emotional damage on a mourning family be held financially responsible for the emotional damage they do?"

    Prove the harm first.

  • lunchstealer||

    And prove that the harm can't be remedied some other way.

    I'm convinced that Snyder is mostly just angry that someone dared to be disrespectful towards his son, who as a Fallen Hero is sacrosanct.

  • sevo||

    "I'm convinced that Snyder is mostly just angry that someone dared to be disrespectful towards his son, who as a Fallen Hero is sacrosanct."

    I don't blame the guy for getting pissed, but if that's "harm" every time a politico flaps his lips, *I'm* "harmed".

  • lunchstealer||

    But not nearly as harmed as when they pass a law.

  • Paul||

    Ken, you get points for not using "Fire in a crowded theater" analogies, so I guess I don't get to take a drink.

    If I purposely disrupt and ruin your wedding to score political points? I expect to at least have to reimburse you for the cost of the wedding.

    The problem here is you've failed to create a bright-line definition of a "ruined wedding". My day has often been "ruined" by the speech of others. Am I entitled to financial renumeration? The problem with your argument is it places a burden of predesposed guilt on the person or group engaging in the speech. The group offended merely need to declare themselves so, now the burden is upon those engaging in speech to prove they didn't offend.

    From there we have European style speech codes and people five hours being questioned by police because they said something mean.

  • Paul||

    ... people spending five hours being questioned by police...

    Preview buttons and all that.

  • ||

    Well, I'm not arguing that this ruling should have gone the other way.

    But I'm definitely arguing that if I purposely set out to destroy your wedding and managed to accomplish that, then you have a case against me in court.

    The onus is still on you to go to court and prove there were damages, and such cases should be looked at on a case by case basis.

    All I'm really arguing here is that...I'm glad there was a dissenting view. In other words, I wouldn't simply dismiss the aggrieved party's case on libertarian grounds.

    I think they made the right call here, but if I were on the Supreme Court, and I thought they were making the right call anyway, I might have joined in the dissenting view myself. I think one could write a perfectly libertarian argument siding with the plaintiffs on this one.

    That's a great strength of libertarianism. We can disagree on almost everything.

  • Paul||

    But I'm definitely arguing that if I purposely set out to destroy your wedding and managed to accomplish that, then you have a case against me in court.

    But that carries such a broad connotation. We may all agree on some definitions of a 'wedding destroyed', but I'm pretty convinced we wouldn't agree on all of them. And it's the cases on the fringes which create openings for the intrusions into the center of liberty.

    If I'm going to have a wedding (god forbid), and a personal rival of mine prints an ad in the local newspaper saying something ugly about me and my upcoming wedding(specific content not specified on purpose), under your logic I can declare that the ad "ruined my wedding" and can therefore pursue financial renumeration.

    Your argument seems to obliterate the definitions of libel or fraud and seems to make the complainants level of offense the primary factor.

    Essentially, I can't think of a better example which would create an environment for the chilling of speech,

  • ||

    "And it's the cases on the fringes which create openings for the intrusions into the center of liberty.

    That's why I'm glad the verdict went the way it did.

    Apart from whatever precedent, however, I think people who've been wronged by someone out to destroy their ceremony--which may have cost them quite a bit--should still get a day in court.

    I suspect the fact that this apparently happened on public property probably made a big difference in this particular case.

    "Your argument seems to obliterate the definitions of libel or fraud and seems to make the complainants level of offense the primary factor."

    Which argument is that?!

    That people who have been unduly harmed by other people's speech have a right to seek damages in court?

    I don't see how you're getting to where you are from what I'm saying.

    Read what I wrote up top again.

    Liberty is intrinsic to responsibility--the two can't be separated in a free society. You're responsible for everything you choose to do--and whether we're free to do things is directly related to whether we can be held responsible for our choices.

    So, a free society depends on individuals being held responsible for their choices. There is probably no greater threat to our freedom than people being "free" to do what they please to others without being held responsible for their choices.

    That isn't freedom--that's coercion.

    Crime = Freedom without Responsibility

    Injustice = Responsibility without Freedom

    I didn't choose to cosign with all the deadbeat who signed variable home mortgages--but I'm being held responsible for what they did anyway?! That's an injustice--and now the government regulates what industry can offer borrowers and can effectively veto our choice to sign a home loan.

    If someone chooses to screw up your expensive ceremony--and nobody can hold them accountable?

    If you tell me it was done on public property, I'll probably give you a different answer than I would if you told me it was done on private property...

    ...but the fact that people screwed the ceremony up with their speech isn't the deciding factor to me.

  • prolefeed||

    If I purposely disrupt and ruin your wedding to score political points?

    You can only "disrupt and ruin" the wedding if the participants therein choose to take umbrage to your speech. If everyone there shrugs and thinks, "Glad I'm not a fuckstick like them", or serenely does a Zen master thing of embracing their protest as part of reality, is the wedding ruined?

  • ||

    I don't know.

    That's for a judge or jury to decide.

    If I was in the jury?

    I'd keep an open mind.

    I certainly wouldn't just acquit the defendant because when he was screaming throughout the ceremony, what he was screaming was religious or political.

    That's all I'm trying to get across here.

    The First Amendment says the government can't abridge your freedom of speech.

    Your boss can fire you if you say something stupid that loses him an account. All I'm trying to get across here is the idea that the first amendment somehow shields you from responsibility for the consequences of the things you say in all situations is absolutely ridiculous.

    Like I said up top, there's nothing magical about the first amendment rights that don't apply to everything else too. You're free to do as you please...you're free to use a gun responsibly--unless what you do infringes on other people's civil rights or property...

    Infringe on somebody's rights or property, and the injured party can go to the courts to try to recover damages...

    From a libertarian perspective, why is this not as it should be?

    The first amendment doesn't say, "You can harm whoever you please so long as the harm you inflict is inflicted by way of speech."--at all!

    I happen to think the only proper role of government is in protecting our rights--and from that small government, very libertarian perspective, I can see some good arguments for awarding damages in a case like this.

    Again, I agree with the verdict here, but that doesn't mean I can't see the other side on this. ...and by my eye, this case doesn't hinge on whether the damage was inflicted by speech. It's about whether it was on public property.

    If I don't like what people say in my house, I'll throw 'em out the door. ...and if they won't or don't leave, and I call the cops?

    The cops better not tell me I can't throw whoever I want off my property because of what these now unwanted guests said--because that would somehow infringe on their right of free speech?!

    I appreciate the concern for precedent. ...and that's why I support this decision. But I'm not about to sign on to the idea that people aren't responsible and can't be held accountable for unduly harming other people with their speech.

    I've given a handful of examples of why I think that's absurd.

  • Bob||

    As a certified bleeding heart liberal and severe critic of Justice Alito, I find myself agreeing with him on this issue on many levels. Have you ever looked into the eyes of a young mother as she leaves the grave of her fallen child, clutching a folded flag. Decency and common sense can not be dismissed in the name of free speech.

  • WTF||

    So any speech that makes someone feel bad can be prohibited? Seriously?

  • prolefeed||

    So any speech that makes someone feel bad can be prohibited? Seriously?

    So if I take umbrage at Alito's speech in this ruling, I can force him to recuse himself from all further SCOTUS rulings on the grounds that he might offend me?

  • B||

    Yup. "Obscenity" essentially means "it makes me feel very bad" - and obscenity is NOT protected speech, even though the 1st Amendment says nothing about obscenity, because obscene things make some people feel very bad.

    Why just look at this case:
    http://www.chieftain.com/news/.....03286.html

    Phillip Greaves wrote a book that some people don't like, now he's in jail in Florida awaiting trial, and even though a conviction would set a terrible precedent even the ACLU won't defend him, because some people disagree with him so strongly that they feel very bad.

  • ||

    Free speech can not be dismissed in the name of emotionalism.

    Fixed.

  • sevo||

    "Decency and common sense can not be dismissed in the name of free speech."

    Yes the absolutely *CAN*, and should be.

  • ||

    Decency and common sense can not be dismissed in the name of free speech.

    Sigh. Bob, free speech is all about protecting controversial, offensive speech. Non-controversial, inoffensive speech needs no protection.

    "common sense" = a rhetorical device where the speaker/writer cannot articulate an actual argument, but invokes the fiction of a priveleged, universal belief system which no reasonable person can oppose.

    Rights cannot be dismissed as a convenient response to emotions.

    Not trying to be mean. Nobody* here agrees with WBC's message, but we accept their free speech rights as the price of a free society.

    *Nobody = non-troll regulars

  • B||

    "Sigh. Bob, free speech is all about protecting controversial, offensive speech."

    Barring the ped exception, as in the case of Phillip Greaves:

    http://www.chieftain.com/news/.....03286.html

  • Warty||

    Fuck you, you girly little authoritarian prick. Thanks for demonstrating that the right and left hate freedom equally, though. Asshole.

  • WTF||

    ^^THIS^^

  • Paul||

    Bob, your comment is bookended by:

    1. As a certified bleeding heart liberal and severe critic of Justice Alito

    2. Decency and common sense can not be dismissed in the name of free speech.

    I have to assume that as a "bleeding heart liberal" you are a very young one. Perhaps in college? I'm guessing the 2 Live Crew debate probably serves as no guide in how "bleeding heart liberals" buttressed their stance in regards to protecting the speech of this group against conservatives who attempted to censor them because their speech was deemed outside the bounds of "decency and common sense".

    Oh this topsey-turvey world we live in.

  • Barry Loberfeld||

    “Alito also seems to be supporting an idea I generally associate with Catherine [sic] MacKinnon: that some ideas are in and of themselves capable of causing ‘great injury’ and a form of ‘brutalization.’”

    RE MacKinnon (from HERE):

    And in 1984, a 23-year-old woman in Minneapolis, then the epicenter of the anti-pornography campaign, took gasoline and immolated herself. When confronted with the news of this horrific and pointless tragedy, Catharine MacKinnon simply responded: "Women feel very desperate about the existence of pornography. This doesn't single her out. People make choices on how [to protest it]." Unbelievable. The feminist who cries for the nonexistent victims of "snuff films" (feminism's blood libel against men) can't even conjure a tear for a young woman who actually set herself on fire in the name of MacKinnon's own movement. The feminist who wants to hold others responsible for the violence they (allegedly) inspire gives absolutely no indication that she believes herself in any way responsible for inspiring this act of violence, much less that she should be held so legally. The feminist who propagates a dehumanizing lab-rat ideology of behavior, who denies that adults can make truly free decisions regarding their own lives (such as a young woman posing for a magazine), now tells us that people can "make choices" -- such as a young woman dousing herself with gasoline. Observe how MacKinnon doesn't even seem worried that -- or particularly bothered if -- other women might make similar "choices."
  • Fiscal Meth||

    I've said it before and I'll say it again. No public roads, no problem. Nobody would let WBC protest a funeral on their street and even if they did, the family could reschedule somewhere the proprty owners wouldn't allow it and sane people could boycott anyone who allows their property to be used for that sort of disgusting harassment.

  • Tim Cavanaugh||

    I think a government that decided controlling domestic travel was not one of its compelling interests would have decided invading Iraq was not one of its compelling interests long before that.

  • Fiscal Meth||

    I'm pretty sure WBC isn't making a princpled stance on libertarian foreign policy. No troops in Iraq doesn't mean no crazy a-holes harrassing the bereaved, but private roads probably would. Though you're obviously right that it won't happen anytime soon.

  • Charles Novins||

    I agree. I've followed this case for a while and never thought it really was a "free speech" case at all. Had the protesters trespassed - silently - on the cemetary property, they would have been lawbreakers, period. Got nut cases following you? Get a more private venue for your sensitive proceedings. The shock here is that one Justice dissented. It's bad, but unsurprising, that the Court couldn't identify the primary issue...but they ultimately got it right.

  • Matt||

    It's important to note that this was a CIVIL TORT, not a CRIMINAL case.

    Libel and defamation have been and should continue to be valid torts.

    Clearly this speech shouldn't be criminalized, but holding someone civilly liable for defamation seems pretty fair.

    Alito doesn't seem to have raised this point but he should have.

    Now in this case it wasn't a pure libel suit but an "emotional distress" suit (not sure if there's a distinction -- can someone clarify that? Maybe it was still technically considered libel but with emotional trauma as one of the "damages").

    In any case this is a lot more subtle and nuanced than the heavy hand of the government criminalizing speech. I think both sides made valid points, but on the whole I'm skeptical of a $5mil award just for speech -- that seems very excessive -- and I agree the Court's decision.

  • ||

    Are you a plaintiff's lawyer? Because that's pretty much the only segment of society who would benefit from such a tort. Do you really want to open up that can of worms? Imagine I'm at a Cubs game and I yell "Albert Pujols sucks!" and it turns out his kid is sitting in front of me. Bam. Lawsuit. Or somebody cuts me off in traffic and I yell "learn to fucking drive!" and the lady decides she can't drive any more because of the stress I've imposed upon her. There's another lawsuit. At some point you have to draw the line simply for judicial efficiency.

  • Sudden||

    Imagine I'm at a Cubs game and I yell "Albert Pujols sucks!" and it turns out his kid is sitting in front of me.

    Being a Cubs fan would be considered punishment enough by any court.

  • Barely Suppressed Rage||

    I'm at a Cubs game and I yell "Albert Pujols sucks!" and it turns out his kid is sitting in front of me. Bam. Lawsuit. Or somebody cuts me off in traffic and I yell "learn to fucking drive!" and the lady decides she can't drive any more because of the stress I've imposed upon her.

    Wrong. Neither of those would constitute an actionable tort under existing law.

    The tort is not that Phelp's speech merely was offensive or upsetting. As I recall from what I read about the case a while back, there were two primary issues: (1) defamation - they specifically used the son's name and made really awful statements about Snyder and his son on the WBC website - they made allegations in the form of factual statements about how dad Snyder had raised his son, which were untrue. And (2) intentional infliction of emotional distress - which is a relatively "new" tort in the grand scheme of tort law, and many, if not most, state courts are pretty skeptical about such claims. They're hard to prove and last I knew, the threshold was pretty high for proving it. You have to prove not just that your "feelings were hurt", but you have to prove that the person acted with the intent - i.e. purposefully and willfully - to cause you such severe emotional distress as to manifest itself in physical illness. That typically requires a qualified medical expert to testify as to your condition and that your condition was caused by this person's actions.

    A general rule of tort law for eons has been that you "take the plaintiff as you find him" (also known as the "eggshell skull" rule, after a famous, standard first-year torts class case), meaning that you can't say, "Well that speech wouldn't have caused ME to be upset, so NOBODY should be upset by it."

    Anyhow, neither of your hypotheticals would be actionable torts, even if Snyder had won his case.

  • Tim Cavanaugh||

    Actually, he does raise it. Read the dissent. He cites a post on the Westboro web site that (to my eye) is pretty clearly directly related to Snyder. This is the closest he comes to establishing that there is a defamation/personal damage claim at stake here (one that is a little more persuasive than his claim that bystanders might think Matthew Snyder was gay or that God had damned Snyder personally).

    I'm with the other eight in thinking this still doesn't meet any standard for dismissing First Amendment protection. But it comes close enough to make you think.

  • Matt||

    I skimmed the dissent -- it just didn't seem to me that Alito really "drove the point home" that "hey, this ain't criminal, it's civil." He had to he'd get flack for this.

    Nevertheless as I stated earlier I agree with the Court's decision. ClubMed, clearly "Albert Pujols sucks" at a baseball game isn't slander or libel. He's a public figure and it's part of the tenor of the event for fans to let off steam and rib the players. Plus it's a pretty broad, nonspecific statement.

    But there are legitimate cases of libel and slander that do occur and can inflict real damage on an individual's career, reputation, and even provoke violence against someone. To me, allowing people to sue for damages in those cases is a protection of individual liberty.

    I don't think this case necessarily met the standard for libel. I don't think many people take anything WBC says seriously except a few lunatics, so I have a hard time believing there was a lot of provable slander. And I'm always skeptical of emotional distress claims unless it's something extremely severe. And like the Court said, this is part of WBC's regular routine, they'll move on to someone else very soon.

    But as Tim said, there is enough there to make you think. It's not exactly a no-brainer (maybe just a mouse-brainer or cow-brainer. A brain of some kind is required).

  • Gray Ghost||

    Where is the 1st Amendment implicated in this? If Maryland or another state actor tried to stop Phelps's protest, I'd agree that the 1st applied, but this is a civil tort suit between two private parties for, among other things, intentional infliction of emotional distress (IIED). The 1st Amendment doesn't apply here.

    So look to the elements of the tort of IIED in Maryland, and see if they apply in this case. Without having RTFA, I am guessing that Snyder suffered no severe emotional distress or couldn't provide proof of damages, and therefore didn't meet his burden of proof. Especially after reading lunchstealer's claims that, "Snyder found out about the protest the next day on the news. He wasn't even aware of the protest during the funeral. And he didn't find out about their website's essay on Snyder until he did a google search for his son." No distress, no damages, no IIED tort. Easy, and a lot shorter than I'm sure either the majority or dissenting SCOTUS opinions were.

    Now, if Phelps actually caused severe, incapacitating emotional distress to Snyder---by say, showing a video of his son getting killed, waving around his son's body parts: you pick the outrageous conduct---and Snyder gets hospitalized with a heart attack as a result, then I think you have a good case for damages. But not here.

    IIED claims are historically disfavored anyways, so no surprise that Snyder was unable to meet his burden. But 1st Amendment law is the wrong way to go about analyzing this case.

  • Fluffy||

    Where is the 1st Amendment implicated in this? If Maryland or another state actor tried to stop Phelps's protest, I'd agree that the 1st applied, but this is a civil tort suit between two private parties for, among other things, intentional infliction of emotional distress (IIED). The 1st Amendment doesn't apply here.

    That's idiotic. The civil tort only has force because the state courts enforce it.

    That's like creating a bunch of torts that award 7 figure damages if someone endorses the Democratic party in an election, or if someone opens a synagogue, but then shrugging your shoulders and saying "Huh? Who, me? This isn't a state action, it's just the civil courts doing their thing!" when litigation crushed the Democrat party or Judaism.

  • Matt||

    Torts are often (and were in this case) a civil dispute between two individuals or groups -- one individual is suing another for redress of grievances or compensation. The government's job -- a very valid one I might add -- is to sort the mess out and settle the dispute.

    Like everyone's saying torts to IIED are very hard to prove. Your examples of the synagogue or voting are woefully short of any reasonable standard that should every be applied in such torts.

  • Fluffy||

    Torts are whatever the state says they are.

    You're acting like torts have some existence independent of the state, and they don't.

    If the state can make IIED a tort, it can make my other examples torts. Why wouldn't it be able to?

  • Gray Ghost||

    You don't have a 1st Amendment right to commit a tort. Many people, myself included, have problems with the tort of IIED, because of its potential chilling effects on speech, but it's currently still a tort. It's true, the 1st can change conduct that would be tortious into conduct that isn't, like what's considered defamatory for public figures versus non-public figures. And perhaps you can try to carve out a 1st Amendment defense from the elements of the tort, in a similar manner to the 'parody of public figures' defense that Larry Flynt got the Supreme Court to buy when Falwell sued him over that fake ad in Hustler. But absent trying to make another exception to the tort, if we're trying to figure out whether IIED's been committed and if damages ensued, the 1st Amendment doesn't matter.

    (They shouldn't even need to ask about the 1st in this case since Snyder didn't suffer severe emotional distress, therefore he didn't meet the elements of the tort. Usually, the Supreme Court loves any excuse it can to not have to do deep navel gazing into Constitutional law, so it's surprising they granted cert here.)

    Consider if you were suing an anarchist civilly for breaking your store windows during a political protest, and the anarchist tried to assert a 1st Amendment defense that his window-breaking was political expression. That may be his motivation, and his protesting may be protected, but he still owes you compensation for the harm he caused.

    Similarly, Phelps probably has all sort of political and religious motivations for making his protests. Those motivations are deserving of 1st Amendment protection. The state can't tell Phelps that he can't make his protests on state land. And that's fine, but if Snyder was actually damaged by those protests, and Phelps's conduct meets the other elements of the tort, Phelps still has to pay. Phelps's 1st Amendment rights aren't defenses to paying those damages.

  • Fluffy||

    Consider if you were suing an anarchist civilly for breaking your store windows during a political protest, and the anarchist tried to assert a 1st Amendment defense that his window-breaking was political expression. That may be his motivation, and his protesting may be protected, but he still owes you compensation for the harm he caused.

    That analogy is grossly inadequate because the "harm" being claimed here is that Snyder had to hear speech. Or, more precisely, had to know that speech was undertaken, since he didn't actually directly hear it.

    There's no window broken. The "harm" is that Snyder has to know that other people engaged in speech. And declaring that a tort is like making a tort out of, say, not quartering soldiers in your home. Yeah, I know the Constitution says you don't have to do that, but it's hurting my feelings SO BAD to know that you aren't quartering soldiers in your home that I think I deserve damages. So pay up.

  • Matt||

    Fluffy you're taking the concept of state abuse of torts to the extreme and using a slippery slope argument. Clearly torts have potential for abuse. Like any other law. But don't throw the baby out with the bathwater. The courts have a very legitimate role to settle disputes and enforce private contracts.

  • Sudden||

    How could this be remotely construed as libel? My understanding of the WBC signs is that they are directed at the government of the U.S. and that they're stating that the loss of U.S. troops is a consequence of them fighting for a country which tolerates homosexuality. There is nothing specifically targeting either the fallen soldier or the family of the fallen soldier, but a more broad (even if absurd and offensive) critique of U.S. policy towards homosexuality.

  • Barely Suppressed Rage||

    Read the history of the case and facts leading to it.

  • Angus MacAskill||

    Libel and defamation have been and should continue to be valid torts.

    Why? Do you claim that I have some sort of property right that extends to other people's brains? (Specifically, the part of their brain that constitutes their opinion of me — assuming that such a thing exists at all.)

    Because, from a libertarian standpoint, that's the only way to show that libel and defamation are valid torts: show they constitute an infringement on my property right.

  • Barely Suppressed Rage||

    It is not your individual opinion that is at issue in the tort of defamation - it is the person's general reputation in the community. Who else owns that, if not the individual? And don't try to tell me that your reputation means nothing to you and has no value. See what I said about that above.

  • Fluffy||

    There is no such thing as "a general reputation in the community".

    There is only a set of thoughts about you in the brains of the individual men around you.

    To prove to me that you can own the thoughts of any one of those men, you'd have to prove to me that you can own MY thoughts about you, too.

    I can think whatever I want about you. So can anyone else.

    If we can think whatever we want about you, you don't really have any claim on what we think about you. And how we decide to make an individual determination about what we think about you would seem to be beside the point.

  • Angus MacAskill||

    And don't try to tell me that your reputation means nothing to you and has no value.

    Sure, a reputation has value. But like anything else, that value is a subjective assessment that happens in the minds of others. You have as much "right" to control the value of your reputation as you have to control how much people value the labour or goods you're selling. That is, no right at all.

    If everyone in the community suddenly decides they hate you, tough shit.
    If everyone in the community suddenly decides they don't like the hot dogs you're selling, tough shit.

    Incidentally, you are making the same flawed argument as the pro-intellectual-property crowd: that you have some vague property right that encompasses ideas held in other people's minds.

  • Barely Suppressed Rage||

    Well you'll have to excuse me if I disagree that it's flawed.

    And I don't see the need to argue that I have any ownership or property interest in your personal opinion of me.

    I have an interest in my reputation in the community. As you say, "if everyone in the community suddenly decides they hate you, tough shit."

    Sure. But if that sudden change is caused by your malicious spreading of falsehoods about me, your actions have cause me damages.

    Why should you be able to spread false and defamatory information about me, damaging my business or ability to earn a living, and not have to be held account for your actions?

    It's a bullshit argument - "I'm a libery-loving libertarian, which means I can do and say anything I want with no repercussions, and if you don't like it, tough shit."

    Whatever happened to having responsibility associated with your freedom?

    My propery right is not in some vague idea encompassed in your mind - my property right is in the entirely foreseeable effect your actions have on my ability to earn a living or other damages caused by your spreading provably false statements about me.

  • ||

    Although Alito's reasoning may be "touchy-feely," I give him a gold medal for guts and common sense. The first amendment was never meant to sanction this type of behavior. I shudder to think of a world where every funeral, wedding, graduation, concert, lecture, etc. is held hostage to the "free speech" of fanatics.

  • T||

    Yes, it's really being "held hostage" when people are across the street from you holding signs. That's definitely a hostage type situation. No way your event inside a building could possibly continue in the face of such behavior.

  • ||

    That wouldn't be so bad. If it happened all the time people would ignore it more easily.

  • ||

    "common sense" - See my 1:42 PM above.

    The first amendment was never meant to sanction this type of behavior. Uh, no.

    The gay community events I attend are often protested by WBC and similar-minded people. Suggest you learn to deal with this as we have.

  • ||

    I'd like to see the name Matthew Snyder be replaced with Matthew Shepard. Were the WBC to have protested that funeral how would the LGBT movement have felt?

    For many people posting here, the connection to the military is probably a "friend" who you barely knew when he/she walked across the stage at your high school graduation. Just remember, it is easy to be unemotional when you have no emotional connection to the issue. I'm not arguing for emotions to be taken into consideration when making decisions, but sadly it is not as cut and dry as many would argue on here.

  • Bradley||

    A First Amendment that protects only inoffensive speech gives you the same "free speech" protection offered by authoritarian states everywhere: the right to freely express uncontroversial ideas that everyone agrees with.

  • sevo||

    PBSeeker|3.2.11 @ 1:37PM|#
    "...common sense..."

    Define common sense. Objectively.

  • PBSeeker||

    Chief Justice Roberts stated in his decision-"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." My problem with this reasoning is that the Snyder funeral is not part of a "public debate." There is a difference between free speech in the context of petitioning the government for a redress of our grievances and harassment of private citizens at private events. This is where "common sense" and judgement come into play. The fact that so many Libertarians fail to see the difference is pretty pathetic. It reminds me of the people who are trying to say the Commerce Clause can be stretched to justify the Feds mandating Obamacare.

    As for the callous disregard of some for the realities these protests inflict on the families mourning their loved ones, there's not much more I can say...Tonio, if you are subjected to harassment at gay funerals, I will not "deal with it," I will fight it and condemn it.

  • ||

    PBSeeker, I think your comment above is the most poignant one made on this thread. I am not a great Libertarian (may not be one at all, still learning about it), but one of the first things I came to understand was that there was a level of civil responsibility involved that states that a person does not try to inflict any type of distress on another. It's called respect. If a majority of a people lose that, it won't matter if they have the right to free speech because there probably won't be a country to have it in.

  • sevo||

    "It's called respect. If a majority of a people lose that, it won't matter if they have the right to free speech because there probably won't be a country to have it in."

    And if "respect" has to be enforced by the government, there won't be a country worth living in.

  • sevo||

    "This is where "common sense" and judgement come into play."

    Do I stutter? Define "common sense" or shut up.

  • PBSeeker||

    "...or shut up."

    Rude,dictatorial and a free-speech hypocrite. I like my way better.

  • lunchstealer||

    Before this thread descends into the inevitable crapfest, I'd like to point out a few things.

    Snyder found out about the protest the next day on the news. He wasn't even aware of the protest during the funeral. And he didn't find out about their website's essay on Snyder until he did a google search for his son.

    This is another place where the verbal assault = physical assault metaphor breaks down. If somebody punches you in the face, you don't have to wait til there's a news report or do a google search to find out about it.

  • SIV||

    The Phelps family are about the only civil libertarians the Demobrats have.

  • T||

    For once, the SCOTUS has upheld an idea dying a painful death in America: not every action that upsets you is punishable under the law. Sometimes, people are just assholes and you have to learn to live with that.

  • ||

    A more interesting question is, does this ruling overturn hate speech laws?

  • Sudden||

    The sad part is that probably 4 of the 8 justices that ruled appropriately on this case would not rule that way if the ideas presented by the WBC were so unpalatable that they were self-defeating. If someone were to make a similar protest that was simultaneously offensive to tolerant or liberal sensitivities while at the same time being worded and expressed in such a calm and well-articulated manner as to be persuasive to some, it would almost certainly change the dynamics of the ruling.

  • CrackertyAssCracker||

    Did you get that from actually reading the opinion, or is that just a guess*?

    *NTTIAWTT

  • ||

    I think I'm for this ruling, but where I'm stuck is harassment is illegal, and how does this fail to meet the basic standard of harassment, when they are obviously coming out of their way to purposefully harass grieving families and disrupt funerals? If they were shouting sexual enticements at the family members they could be arrested.

    What about the right to quiet enjoyment of private property? Can I blare white noise from the loudest speakers ever made at your house at 2 in the morning and claim it's my free speech? Or to answer Fiscal Meth's scenario, if I was your neighbor, to do so from my own personal property?

  • Barely Suppressed Rage||

    how does this fail to meet the basic standard of harassment, when they are obviously coming out of their way to purposefully harass grieving families and disrupt funerals

    RTFA and read the history and facts of the case. They were far enough away that it wasn't harrassment. Dad Snyder didn't even know they were there until later, after the funeral, when he was at home and reading about it on the web.

  • ||

    In this *specific* case maybe, but there are plenty of examples where they were interfering as plain as day. Where's the line?

  • Charles Novins||

    The law governing harassment is a mess, indeed, and I have trouble myself imagining how anyone could make it sufficiently objective for purposes of law. That said, as the current law generally stands, harassment is more like stalking, conceptually. Many statutes require two or more incidents against a single victim, that sort of thing. This particular fact scenario doesn't fit well with most current variations of harassment law. NJ's statute specifically prohibits "annoyance," but our Supremes long ago voided that part of the statute by simply redefining the word for legal purposes. Thus, laymen reading the statute will still find that it is a criminal offense to "annoy" someone in NJ. Even when the law's not an ass, it likes to appear as one.

  • SIV||

  • ||

    Those are ridiculously high numbers for this asshole, but when your competition is other politicians, I suppose just showing up would get you a decent haul.

  • Gregory Smith||

    Fascinating, I can't exercize at home because my neighbor complains about the noise, but Fred Phelps can disrupt any funeral without any impunity.

    In the meantime, Pastor Terry Jones had his church VANDALIZED for wanting to burn the Quran. Where was the media defending him then? How come the sheriff charged him for security?

    I guess some free speech is better than some other free speech.

    Oh and SCOTUS, when are you gonna get rid of the so-called "obscenity" laws? What was done to the producer of Girls Gone Wild was just as offensive as what Phelps does to grieving families burying their dead.

    Shariah4America wants to redesign White House and destroy Statue of Liberty.
    http://libertarians4freedom.bl.....words.html

  • lunchstealer||

    Snyder didn't find out about this protest until he got home and saw coverage on the local news. So this case isn't about disrupting a funeral, because the funeral was never disrupted.

    And if the Racist Pastor Terry Jones knows who vandalized his church, he could both press charges and bring a civil suit against the vandals, because they caused actual damage.

    Just as Snyder could do if the Phelps crew vandalized any of his stuff. Because vandalism isn't protected by the constitution, and speech is.

    I mean, frankly protesting the funeral of an armed government agent has to be a form of 'petitioning for redress of grievances'. Phelps' grievances are bullshit, but the government doesn't get to decide that.

  • Fluffy||

    I think it has to be reiterated, because everyone keeps ignoring it, that THE BASIC TEXT OF THE BIBLE should be just as actionable for "the infliction of emotional distress" as Westboro's online essays, if Alito is correct.

    Westboro's message boils down to a very simple one: When people commit sins, God punishes the polity in which they live with misfortune. That's it in a nutshell.

    This is a message I naturally completely reject as an atheist. But it's not even remotely unusual or unorthodox a religious message.

    The Bible repeats this message over and over: "God doesn't like sinners, and he wipes out nations where people sin. And he's fucking coming for you next!" Woe unto you, Israel. Alas, Babylon.

    If Snyder can sue Westboro and win, I should be able to sue every denomination out there that endorses the Bible publically. If I can't, and if the reason boils down to "Juries will punish Westboro but not the Catholic Church", then the tort infringes upon religious speech and political speech.

  • Paul||

    The real question here is, did the Westboro church members thump their bibles while engaging in speech? That would change everything.

  • Barely Suppressed Rage||

    Fluffy, you seem to not have read the basic facts and substance of Snyder's complaint.

    The issue was WBC's comments directly specifically and directly at Snyder and his son themselves, not just their general message that Snyder found offensive.

    Seems like a lot of people commenting here - on both sides of the issue - have not followed this story at all and are reacting solely to headlines and a brief skimming of some internet articles.

  • Fluffy||

    So what?

    There is no way to prove one way or the other what the Flying Spaghetti Monster thinks about Snyder's dead kid or gays or the US or anybody or anything else.

    So even if we were to agree on the general propriety of defamation law, there is no way for the element of falsehood to even be proven here in the first place.

    There is absolutely no variation on "God hates you and that's why you died" that could possibly be employed that would make the slightest fucking difference to me.

  • Barely Suppressed Rage||

    Well, that's not the argument made. I guess you're just not going to read the actual facts of the case and just continue flogging your opinion of it anyway.

  • SIV||

    I haven't RTFA, or all the comments, but I recall Alito went all-squishy(as in totally against) on the 1st Amendment in his dissent on Mary Beth Buchanan's dog-fighting video case

  • ||

    How did all these hypocrites vote on the Bong Hits 4 Jesus sign that was off school property? That's what I fucking thought.

    Also, Alito is the most emotional justice in recent memory. (mouthing) "That's not true!"

  • SIV||

    Joe Wilson was more to the point.

  • Gideon Darrow||

    "What speech would be free in Alitopia?"

    Not much, apparently. It's worth bearing in mind (as SIV noted) that he was also the lone dissenter in ''United States v. Stevens'' last year:

    http://en.wikipedia.org/wiki/U.....v._Stevens

    So suffice it to say he doesn't have a particularly robust conception of free speech.

  • SIV||

    Thanks, I was too lazy to look it up.

  • ||

    You can't own my good opinion of you. You can't have a property right in it.

    Fluffy, I think I see where you're coming from - that there are no damages except damages to property.

    I just have a hard time saying that when someone acts wrongfully (they lie with the intent to get you fired) and cause actual quantifiable damage to you (you lose your job), you shouldn't have any legal recourse at all.

    Sure, you didn't own the job, and you don't own your reputation. Still . . . .

    Lets say you are arrested, wrongly, because the cop hates people like you (black, Jewish, whatever). I don't see that you're right not to be arrested is a property right, so you shouldn't have any recourse against the cop?

  • Barely Suppressed Rage||

    Except I reject the proposition that your good reputation is not yours or not valuable. Your reputation among the community is what is at issue in a defamation case - not the defamer's personal opinion of you.

  • Fluffy||

    That's not entirely what I'm saying.

    Your liberty is something that belongs directly to you and as such it can certainly be alienated by a magistrate, or by a private individual for that matter.

    But my opinion of you doesn't belong to you. And no one else's opinion of you belongs to you. If we acknowledge that anyone can change their opinion about you for any reason at any time, it defies logic for there to be a presumption that you have an ongoing defensible interest in it the same way you have an interest in your own liberty.

    You're basically arguing that if I decide I hate you because voices in my head tell me to hate you, you're shit out of luck and have no recourse. But if I decide it because Episiarch emails me that you're a dick, you can sue Episiarch. And that strikes me as absurd. Either you have an ownership interest in my opinion of you or you don't.

    I think the old concept of "alienation of spousal affection" is a good metaphor. That concept only made sense as long as the affection of a spouse was regarded as a possession. If your spouse can leave you whenever they want, that affection really can't be a possession. Treating it as one denies the agency of your spouse.

  • Paul||

    Fluffy, are you saying that libel torts should all be invalid?

  • CrackertyAssCracker||

    I think he is.

    He just about has me convinced too.

  • Barely Suppressed Rage||

    You're basically arguing that if I decide I hate you because voices in my head tell me to hate you, you're shit out of luck and have no recourse. But if I decide it because Episiarch emails me that you're a dick, you can sue Episiarch. And that strikes me as absurd. Either you have an ownership interest in my opinion of you or you don't.

    You're totally missing the point of the tort of defamation.

    I'm not suing because your opinion of me changed. I'm suing because Epi's purposeful action of spreading filthy lies about me caused me measurable damages. It's not about an ownership interest in your opinion - it's about an ownership interest in my own well-being, lifestyle, ability to earn a living, etc., which Epi's actions (in your hypo) directly damaged.

    By the way, in your hypo, no I couldn't sue Epi for e-mailing you that "Barely Suppressed Rage is a dick." That is purely opinion, which is not defamatory.

    Again, I really think alot of the heat in this whole discussion comes from a lot of people not understanding

    (1) the facts of the Snyder v. Phelps case

    (2) the actual claims Snyder made against Phelps

    and

    (3) the actual nature of the tort of defamation

    Defamation is not as common or as easy to prosecute as some seem to believe. It is a valid tort, as when a person defames someone, they can cause real, measurable damages, for which the should be required to compensate the person, just as if they had stolen money from them.

    Trying to paint the issue as whether someone has a "property interest in your opinion of them" is disingenuous and is akin to the SCOTUS majority characterizing the issue in Bowers v. Hardwick as whether the Constitution protected "a fundamental right upon homosexuals to engage in sodomy." The issue was not whether engaging in homosexual sodomy is a constitutional right, but whether the right to engage in consensual sex with another adult in the privacy of your own home was covered under the "right to privacy" the Court had found earlier.

    Sure, you can try to define the question at issue in a way that helps your argument, but that doesn't make it right.

  • Barely Suppressed Rage||

    As abhorrent as I find the (in my opinion) inbred WBC cretins and their message of nutbag hatred, I have to say that the majority reached the right decision here w/r/t the First Amdt.

    What I really find offensive, however, is that the appeals court ordered Dad Snyder to pay the WBC's fucking legal fees. And as I recall, it was many tens of thousands of dollars. That's just plain fucking evil.

  • Tim||

    The case should have been thrown out simply because there was no contact between the two parties. The court orginally awarded damages but there was no fraud or even a contract saying that one party owed the other party some money. If the court limited itself to simply enforcing agreed upon contractual obligations then these cases would not come up. This is an important issue to defend our rights because I can't imagine a world where each one of us can be sued just by our mere existence, actions, or anything else that revolves around the decisions we undertake in our lives. Could the same court also strike down sexual harassment lawsuits based on 'freedom of speech'?

  • ||

    If Maryland or another state actor tried to stop Phelps's protest, I'd agree that the 1st applied, but this is a civil tort suit between two private parties for, among other things, intentional infliction of emotional distress (IIED). The 1st Amendment doesn't apply here.

    So Jerry Falwell should have been able to collect from Hustler Magazine for intentional infliction of emotional distress after all?

  • Gray Ghost||

    Haven't read the Hustler v. Falwell opinion in awhile. Provided Jerry Falwell could show severe emotional distress, and Hustler met all of the other elements of the tort, then yes, Falwell could collect. Which is why, I'm guessing, the Supreme Court felt it had to come up with a parody of a public figure exception.

    Me, I don't think Hustler's ad got to "extreme and outrageous conduct" or that Falwell suffered severe emotional distress. It's parody. Falwell's an intentionally public figure. Grow a pair already. Different case from an ordinary citizen getting harassed.

    Keep in mind, the emotional distress must be severe. I'm not getting paid to go through and collate examples of what courts call "severe emotional distress," but my example up above of the guy getting a heart attack from the outrageous conduct, would be what I call severe. 'I was sent into a black depression for three months', with the following attached doctor's notes, and admission to a mental hospital, that sort of thing. Feelings getting hurt doesn't cut it.

    So I would have tossed Falwell's complaint on those grounds and not bothered coming up with a new defense in the law. Of course, not having gone to Harvard Law, I'll never be on the Supreme Court.

  • Matt||

    Gray Ghost you're right on the ball.

    I have a hard time believing that short of chronic, clinical psychological torture that is ongoing for months (someone being locked up and verbally abused for months), nobody should collect $5million for emotional distress (as the guy in this case was awarded). That seems really unfair -- most people will never see that amount of money in their lifetime, and had the Court upheld that it may have encouraged others to file frivolous IIED claims.

  • juris imprudent||

    You are free to ignore nasty words in a way that you are not free to ignore physical violence directed at you.

    There used to be a doctrine about fighting words. If Snyder had embedded a brick into one of those impossibly dense skulls, it should be considered just.

    The existence of the WBC convinces me [further] that God does not exist. Because any God that I could ever respect and worship would have worn out his smite button on those fuckers by now.

  • Saharvey||

    You know what is going to be great? When Fred phelps dies. They protest at his funeral should be epic.

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