Supreme Court

Free Speech and the New Supreme Court Term


The Wall Street Journal's Jess Bravin profiles two big free speech cases the Supreme Court is set to hear in its upcoming term:

On Oct. 6, the justices will weigh whether the First Amendment protects a Kansas church's campaign to publicize its beliefs by picketing military funerals with vulgar placards and insulting fallen soldiers' survivors in online screeds.

The father of a fallen Marine is seeking damages for emotional distress from the church, which believes that God is killing American soldiers to punish the U.S. for its tolerance of homosexuality.

A month later , the court is to consider whether states can bar minors from buying violent videogames, on the theory that these games cause damage to developing minds and this outweighs young people's constitutional rights.

Both cases add digital twists to constitutional doctrine. The church's Internet posting potentially exposes the entire world to its hurtful attack, while the videogame laws single out computer role-playing as uniquely dangerous to children while leaving violent music, films, comic books and other media unrestricted.


NEXT: Philosophy and Consequences

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  1. Neither one of these seem all that complicated. In fact, I’m amazed that they’re at the level they are.

    The science related to dangers of internet and computer gaming on minors is some of the worst science I’ve ever read.

    As for the church- they are assholes, yes, but that’s something they can do. It is protected speech and I have yet to hear/read any logical, rational arguments why it isn’t.

    1. “As for the church- they are assholes, yes, but that’s something they can do. It is protected speech and I have yet to hear/read any logical, rational arguments why it isn’t.”

      I think it’s a little more complicated than that.

      The question doesn’t seem to be about whether they should go to jail–it’s a civil case.

      I’m still thinking it’s protected speech, but I can see the argument that it might be a bit like slander in terms of recovering damages.

      1. The case will test the line or balance between the tort claim of intentional infliction of emotional distress (always a tough one anyhow) versus First Amendment-protected speech.

      2. I can’t really see an argument like that making sense. I mean, even with slander they have to KNOW that they are lying. Also, the damages aren’t to compensate for emotional distress, but for loss of future wages to to lies that would impact one’s social standing/character.

        It will be interesting to watch.

        1. even with slander they have to KNOW that they are lying

          …or act with reckless disregard for the truth. I.e., you don’t care whether it’s true or not; you’re going to say these awful things about the person to try to destroy his or her reputation in the community.

          There are many components to damages – not just lost wages. The problem always is showing not only all the elements of the particular tort, but then proving actual damages – which requires showing causation and a reasonable estimation of the amount; i.e., that they are not merely speculative.

          In most jurisdictions, however, intentional infliction of emotional distress is a valid tort claim. It usually is not pursued alone, though – typically it is tossed in with other torts. And it is a hard one to prove and get damages for – most jurisdictions require that you show you suffered physical manifestations of your emotional distress. You can’t just be “very upset.” You’ve got to show things like it made you lose sleep, or throw up, or something like that, to the point where your daily functioning is impaired – like you can’t do your job, you’re losing weight, etc.

          Anyhow, yes this will be an interesting one to watch.

          1. Mother-in-Laws to-be must be really nervous about this one.

            If all brides have to do is prove that the groom’s mother really intended to ruin the wedding all along?

          2. If you are making a regligious claim, ‘God wants soilders to die because he hates homosexuals’, its hard for me to see how one could refute that (You believe that is what God wants – couldn’t prove what you believe, or God believes for that matter). Indeed, if He is on our side, why did even one US soilder have to die? Or, since going to heaven is so wonderful, wouldn’t the logical thing be for every Christian to sign up for duty and fight the Taliban with love, not guns – if you die, you go to heaven?
            Once you get into the slippery slope of intentional emotional distress, could Obamacons sue Reason for casting aspersions upon whether his program prevented a great depression?

        2. Take the military angle out of it. Suppose someone was really angry at Monica Lewinski for ratting out Bill Clinton about their affair. And to express this anger, they showed up at Lewinski’s wedding with signs that said “God hates Monica because she sucked Bill Clinton’s cock and told”.

          That would be just as much political speech as what the Waynesboro people are doing. But I have a hard time seeing why it is also not a tort. To say otherwise is to say that because Lewinski got caught up in a political controversy, anyone that wants to has a right to ruin her wedding day.

          Or to give another example. Suppose I sincerely believed that anyone who didn’t believe in my religion was going to hell. So I went to random people’s funerals and held up signs and told everyone there how their loved one was now burning in hell. If I can do that, then pretty much anyone can say about anything at a funeral and never face civil liability.

          1. Has anyone ever been sued for inflicting emotional distress on a woman entering an abortion clinic?

            I’d be surprised if that’s never happened.

            To some extent, on public property, people should have the right to tell other people that what they’re doing is wrong–even if doing that inflicts emotional distress.

            Should the guy building the Ground Zero Mosque be allowed to recover damages in court if protesters, at some point in the future, wave Mohamed bashing cartoons in his face?

            Anyway, I’m on the side of the jackholes on this one, but like most things, it isn’t cut and dry.

            1. I have never thought about the abortion example. But I think if you can sue the Waynesboro people you could sue abortion protesters. Allowing the suit wouldn’t say that the protesters couldn’t express their opinion. It would only stand for the proposition that you could not express it in such an outrageous fashion that you cause emotional distress and real harm to other people.

              It should also be noted that it is pretty hard to prove intentional infliction of emotional distress. You have to prove some kind of physical harm that resulted from the distress. It has to be more than “I just didn’t like that”. Even if the guy is allowed to proceed against the church, there is no guarantee he will win.

              1. This is ridiculous. If I’m on public property, I can say whatever the fuck I want, regardless of how it makes you or anyone else feel.

                If I think God is sending your son to hell, and I’m on public property, I can damn well say it. If I want to show up on the street outside Monica Lewinski’s wedding and say that god hates her for sucking cock, I can damn well do it. If she doesn’t like my opinion, too bad.

                1. “This is ridiculous. If I’m on public property, I can say whatever the fuck I want, regardless of how it makes you or anyone else feel.”

                  Then your issue is not with the 1st Amendment, it is with the entire tort of IIED. I seriously doubt the court is going to strike down the entire tort. The question is should the Waynesboro Baptist Church be immune from such suits because of the political content of their speech.

                  You most certainly do not have a right to say anything you want. If for example you stood outside a hospital and called crippled kids names and harassed their parents for having defective children and letting them live, you would be liable for a tort.

                  1. Westboro.

                    You are infliciting emotional distress on me thru your inability to get even fucking close to right on their name.

                    Expect the papers soon.

                    1. Fuck them. They are such scum I am happy not to know their proper name.

              2. “It would only stand for the proposition that you could not express it in such an outrageous fashion that you cause emotional distress and real harm to other people.”

                I guess that’s the crux of it for me.

                How do you tell someone that what they’re doing is morally reprehensible, that it’s tantamount to murdering a child…

                …all without hurting anyone’s feelings?

                I’ve seen some anti-abortion vans with huge signs on them and posters being carried around–that featured images of decapitated babies heads beside their bodies, essentially the aftermath of partial birth abortions…

                Those images probably do inflict emotional distress–and intentionally so. But just because I don’t agree with those people, or what they’re doing, or how they’re doing it, I’m not sure that should be the test.

                Sometimes the things people have to say cause emotional distress, and I guess that’s why I’m leaning toward the side of the jackholes here. You might have a right to be compensated for the cost of the funeral, but nobody has a right not be offended.

                1. nobody has a right not be offended.

                  Or, if you dont want to be offended, DONT BE OFFENDED. Its a conscious choice you make, choose otherwise.

                  1. I think we should ignore the baptist fuckwads. The only reason that I even know about them is because they get coverage by the media. If we ignore them, then the families of the soldiers can go over to the assholes, before the funeral starts of course, and kick their ass. Over and over again.

                2. Just to be clear – showing intentional infliction of emotion distress requires showing far more than that you were “offended.” As you say, nobody has a right not to be offensive. The tort is not with merely “offensive” speech. It has to be something more “shocking to the conscience,” I suppose, and your emotional distress has to go beyond merely being offended, typically involving physical manifestations.

                  Again, it tends to be a hard one to win on, for all the reasons discussed above – courts generally don’t like punishing people for their speech. The tort more typically arises in situations other than ones involving public protests. For example, an abusive employer who incessantly berates, harangues, belittles and makes highly inappropriate comments to a subordinate.

                3. John’s comment ruined any enthusiasm I might have for prosecuting the Phelpses and their associates:

                  ‘I think if you can sue the Waynesboro [sic] people you could sue abortion protesters.’

                  And there’s the problem – many of the folks who are in charge of public policy in this country tend to put prolife demonstrators in the same category as the Phelpses – ‘evil right-winger in need of repression.’ (The fact that Fred Phelps was an Al Gore supporter and won an award from the NAACP doesn’t detract from his ‘right-wing’ nature in this scenario).

                  In fact, many people in control of public policy in this country probably see prolife protesters as *worse* than the Phelpses. They can at least sympathize with the idea of denouncing U.S. soldiers (like back in the good old Vietnam War days, or in the Bush era before the Iraq War became run by the Right People), but they cannot sympathize with the idea of criticizing abortion – and, of course, to their mindset, any criticism of abortion (especially at the site where the abortions are performed) is an attack on the woman getting the abortion. The woman is often suffering from distress – and the ‘prochoice’ crowd tends to blame this distress on the presence of demonstrators, not on the fact that that the woman is considering doing something her innermost conscience tells her is wrong (often under pressure from ‘loved ones’. If the woman sees anti-abortion placards (even the ‘love them both’ and ‘pray to end abortion’ placards which don’t have any pictures of actual abortions), then she may well feel that these outsiders are trying to echo the voice of her own conscience which she has done her best to suppress (or which her boyfriend has bullied her into suppressing) – not surprisingly, the woman could well be induced to blame her distress on the outside forces who criticize abortion, not on the inside forces of her own conscience.

                  If the ‘prochoice’ crowd thought they could do IIED suits against their opponents, they would. And of course, they wouldn’t just sue the individual demonstrator, but the entire organization sponsoring the demonstration.

                  That’s why IIED needs to be restricted to things which don’t involve public protests and exercise of First Amendment rights – reserve IIED for the frat-boys who subjects some poor freshman to a nasty hazing, or certain extreme and abusive instances of workplace misbehavior, etc.

                  The Larry Flynt case in the 1980s pointed out the problems with using IIED against political protest. “Who cares whether your criticism is true – it offends me!” That way, you don’t need to sue for defamation, you can focus on *feelings,* and we know how the presence of opinions contrary to our own hurts our feelings. That’s why Flynt won – even though he talked about Jerry Falwell having sexual relations with his mother in an outhouse. And Flynt wasn’t even trying to persuade Falwell to spare his child’s life – Flynt’s only motive was to be cruel. But Flynt rightly won because Falwell couldn’t be allowed to collect damages just on his hurt feelings from political speech.

  2. Video games are the new boogie man, and will continue to be so until something newer comes along. Same as it’s always been. Before games it was music, before that it was comic books, before that it was pianos, etc…

    1. You missed paper-n-funny-shaped-dice roll playing. That was Teh Evul! ™ for a while, too.

      1. Is it evil to allow nerds to feel cool and like part of a group? I would think so.

        BAN IT!

    2. and will continue to be so until something newer comes along.

      There will be nothing new coming along.

      Video games are the last and ultimate art form.

      1. Haha, right, just like everything has been invented.

        Probably it’ll be virtual reality next, which will combine all previous vices. That may actually be the final one.

        1. Probably it’ll be virtual reality next,


          What do you think video games are if not Virtual reality?

        2. Wouldn’t that just be considered a subset of video game?

      2. There will be nothing new coming along.

        Video games are the last and ultimate art form.


        1. The idea of a brain interface is cool….but why invent it when we already have a brain interface…they are called eyes and ears.

          1. Because you would access to another human being’s innermost thoughts and emotions, and that person might be a lot more creative than you are in one or more areas. It could be the ultimate role-playing experience. Wouldn’t it be wild to temporarily step into the mind of a member of the opposite sex?

            People could sell their experiences, good, bad, and horrible: This is what it was like to be raped. This is what I saw in the Cambodian killing fields. This is what I remember from walking on the moon.

            Also, another sci-fi writer (Robert Silverberg) extended the idea to other species. Wouldn’t it be interesting to experience the mind of a dog, a cat, a fish? If a trout has a brain the size of a pencil eraser (just guessing), what kind of mind could that generate? Wouldn’t it be interesting to experience?

            1. If a trout has a brain the size of a pencil eraser (just guessing), what kind of mind could that generate?

              Your typical Democrat Congress critter?

              Wouldn’t it be interesting to experience?


            2. If we get to the point in which technology allows us connect our brain to a Dog or a rape victim or whatever we would cease to be human and would become something else.

              And with the death of the human race art would die with it.

              If that bothers you then i will change my statment:

              Video games are the last and ultimate art form of the human race.

              We good now?

  3. I’m going for broke and saying that both cases will be decided in favor of the First Amendment.

    The Westboro protests allow for the worst in religion to self-identify and have actually formed an unholy alliance between the usually conservative pro-military crowd and the usually liberal pro-butt sex crowd.

    The video games case, well, let’s just say that if the Supreme Court prohibits the states for barring minors from buying violent video games, I’ll personally take it as a victory for all the kids who grew up in the 90s hearing their President, First Lady, Attorney General, and a grumpy senator for Connecticut accusing their favorite past-time of inciting school violence.

    1. Westboro has nothing to do with religion. They exist as a “church” solely for the purpose of protesting stuff, getting punched and sueing for damages.

      That said, they seem to be well within their first amendment rights.

  4. Imagine the works we could create if we could direct people’s liberty in directions beneficial to society!

  5. I don’t understand why the video game issue would go to the supreme court. If movie theaters can restrict viewing of rated R movies (“under 17 not permitted without parent”) why is buying a video game different?

    1. I believe the difference is that theaters (and rental places) do such things voluntarily. This is testing if the STATE can mandate such protections as law.

      1. To keep things into perspective, the reason film studios and video game companies began self-rating was to avoid an inevitable attack by the government.

        1. Books don’t carry a rating because it’s been (near) universally understood that the First Amendment protects expression in literature. It’s when the government uses this crap argument that the medium of [removed]film, video games) allows for flexibility in protection. It’s kinda like when a liberal douche argues that the Second Amendment doesn’t protect machine guns because “the founders would never have anticipated this technology.”

    2. Good analogy. Wrong direction.

      There is no power listed in the Constitution suggestion that the government can restrict who gets to see this expression of that expression.

      The default is always that the issue is out of the governments hands: freedom unless otherwise authorized.

  6. Related to First Amendment issues – did anyone else see this Nat Hentoff column?

    I’m liking this guy.

  7. You can maje a credible case for restricting violent games (and other media) from children as they aren’t consensting adults. I don’t agree with it, but you can. Hell, we do it with porn and that doesn’t really bother me.

    You just fucking can’t make a credible case for restricting that douchebag Phelps and his retarded family. Free speech has no value if you can’t offend people while using it.

    1. And how often do children (ages 8-18) obey state laws restricting access to porn. They get one way or the other and I’m sure the law has produced some unintended consequences (sexting controversy?).

    2. I will make the case against Phelps. This is not a criminal restriction. This is civil liability. If Phelps had been arrested rather than sued, I would agree with you. But he is just being sued. If your speech damages someone in a tangible way, why should the fact that it has some kind of political content prevent them from recovering damages?

      1. Except that in a lot of cases Phelps isn’t lying. A lot of his rhetoric is about how our military servicemen and women are in hell because they protected the rights of homosexual Americans.

        Phelps has the right to say that people are in hell and he’s also correct in saying that our military does protect the rights of homosexuals.

        1. > He’s not correct that they’re in hell, but I’m sure he can defend his statement on religious freedoms grounds.

        2. Sure they have a right to say that. But if they say it at someone’s funeral and cause real harm to another person, why are they immune from making that person whole?

          1. But did they cause the harm, or did the other person cause the harm to themselves?

            I think I just made the “sticks and stones” defense – but does that make it any less valid?

            1. By that logic then no one could ever have a tort of intentional emotional distress.

                1. Well, maybe not never, against a child, sure. But against a typical adult, no. There might be some weird other circumstances, but generally, that is exactly what Im saying.

                2. We have one. And I don’t think the Supreme Court is going to strike it down. So the issue is does Waynesboro Baptist church get immunity from suit because of the political content of its message.

                  1. WESTBORO.

                    Please, try to get fucking close on names. Its really fucking annoying.

                    Also, “we have one” what? Weird other circumstance? Nah, nothing weird about dead soldiers, been happening for millenia. Their parents/spouses/etc are typical, sane adults.

                    1. robc,

                      You can argue that IIED torts shouldn’t exist. But since they do, unless you believe that SCOTUS is going to invalidate that type of tort altogether (highly unlikely), you’ll have to either come up with a better defense of the Westboro loonies or simply agree to disagree with IIED torts.

                    2. Or I can continue to rail against IIED torts. I never agree to disagree. Im going to make everyone who disagrees agree with me. Eventually.

                    3. I’m all for protecting the Waynesport Church (that’s for you, Rob). That being said, I think IIED claims can be somewhat justified in NARROW circumstances. First, I can see them in situations where it’s in addition to underlying claims. In other words, you beat the shit out of somebody, you get $X. You beat the shit out of them in front of their kids, and the kids have to go to counseling for the next ten years at a cost of $Y, you get $(X+Y). I can even see it where there is a concrete cost associated with the IIED claim (again, generally speaking, mental health treatment costs). But I think the most important thing is that actual, concrete harms be shown. To me that’s a reasonable way to distinguish between actual harms/costs incurred and your basic hurt-feelings claim.

                    4. That should read “you beat the shit out of somebody, THEY get $X.” This ain’t no WWE.

                    5. That should read “you beat the shit out of somebody, THEY get $X.” This ain’t no WWE.

                      Dang it. Was getting the car warmed up for a trip to chicago to make some bucks.

                    6. “To me that’s a reasonable way to distinguish between actual harms/costs incurred and your basic hurt-feelings claim.”

                      That is how the tort works. I am offended isn’t enough. You have to show that you were so upset that you couldn’t work or became physically ill or something like that.

                    7. But is the physical illness due to the offense or due to your own lack of self esteem?

                      I would argue the latter. So suck it up, its your own damn fault.

                    8. Can we start calling them the Wayans Bros church?

          2. Stealing Obama’s rhetoric I see?

            Making them “whole”?


        3. It doesn’t matter whether Phelps is lying or believes (or can even prove) he’s telling the truth. You’re confusing the tort of defamation with the tort of intentional infliction of emotional distress.

      2. My post below notwithstanding, this does raise some tricky issues.

        For instance, if you say something about a business or politician, can they file a civil suit for lost income or votes or distress?

        In that formulation, the civil aspect could certainly be used to chill speech and I would want to prevent its use for that.

        Today its the Phelps, tomorrow its you commenting about welfare or social security or what have you and causing its recipients distress.

        1. if you say something about a business or politician, can they file a civil suit for lost income or votes or distress?

          Again, don’t confuse defamation with IIED.

          If the person is a high-profile businessman or politician, they generally will be subject to a different rule as a “public figure”, rather than as a regular ol’ citizen. The idea being that a public figure has to put up with a little more invasion of privacy and false light on their character than the typical average Joe or Susie does. The public figure has less of an expectation of privacy or that people won’t say outrageous and stupid things about them. So although defamation typically requires only a defamatory statement that you communicate to another, for a “public figure”, it also requires malice – i.e., you were purposely trying to ruin the person’s reputation and do them harm.

          Go to Google Scholar and enter “New York Times v. Sullivan.”

      3. John, without looking into the case more I agree (and will be posting more about that below).

    3. You can make a more than credible case that the kid’s guardians should keep those kinds of material away from them.

      Explain to me why the Obamatron & Co. Should be involved. Or the Statehouse. Or city hall.

  8. I’m a huge 1st Amendment guy. I support a broad interpretation. I’d rather err for inclusiveness.

    But the first amendment prohibits Congress from making any law restricting speech. How do civil penalties for injuries arising from that conduct fit that?

    Sure, I guess Civil penalties could be seen as government making rules restricting speech, but still, allowing for damages for emotional injuries arising from that speech should still be legal, yes?

    My mind almost doesn’t see this as a FA issue, and I’m not sure it would be a travesty if it went against the church.

    Having said that – knowing what I know, I would vote for the chuch and in favor of broad reading of the FA.

  9. The church’s Internet posting potentially exposes the entire world to its hurtful attack I utterly fail to see how Phelp’s case is ‘electronic’, and as far as I can tell, the whole deal is on emotional distress (“fighting words?”) at the point of protest. Nothing at all to do with the intertubz.

  10. I’m not following the Fred Phelps case in any detail. A few thoughts/questions:

    (1) Are the Phelpsers being sued for libel or slander? Isn’t “intentional inflection of emotional distress” a pretty common add-on for damages in libel/slander cases? What’s new about this case that got it to the SCOTUS?

    (2) Libel/slander actions don’t typically/necessarily raise 1A concerns. Freedom of speech does not mean freedom from responsibility for the consequences of your speech. If you say something that causes damage, you have to foot the bill.

    1. Yes. There’s a difference between government regulations placing restrictions on the speech and the right of a private citizen to sue another for emotional distress. Other cases involving emotional distress are allowed to be pursued. I’m not sure that protesting a war, for whatever reason, necessarily means you have the right to harass (and it is clearly harassment) people burying their children. There are other times and venues that they could exercise the same free speech. I’m not sure this is constitutionally as straight forward as one might think at first glance.

      1. This is pretty much my view on Phelps. Making it illegal to hassle people at funerals bothers me about as much as kicking the Hare Krishnas etc. out of airports. Free speech and the Republic survived that quite easily.

        1. There is nothing here that would make it “illegal” to protest at funerals.

          This is about a civil case for damages between private parties. The idea is to hold the Phelpses accountable for the repercussions of their actions – not the government holding them accountable, but the affected family.

          1. I stand corrected, but still on the side of reining in Phelps.

          2. The government being the one forcing the Phelpses to pay… The government making you pay for pissing people off is effectively making it illegal, with the penalty being a fine of whatever the tort result is. Or how would the families enforce the ruling to made whole?

            1. In the old days, Phelps and company would have the snot beaten out of them by the funeral party, and everyone would say they deserved it. We’re too civilized for that these days, alas.

  11. From the article, an unexpected outbreak of ethics from Justice Kagan:

    Because her previous job as solicitor general involved her in formulating government positions in cases now before the Supreme Court, she has recused herself from about half of the docketed cases.

    I believe this is much broader than her earlier position on what she would recuse from. I suspect the other Justices landed on her like a ton of bricks.

  12. Justices landed on her like a ton of bricks.

    I think Scalia’s third chiny chin chin weighs about 8 lbs.

  13. I’m initially inclined to agree with some of the commenters above that the Phelps case does not appear to be a First Amendment issue to me. The cause of action at issue is the civil tort of intentional infliction of emotional distress (IIED). The First Amendment does not protect folks from civil liability based on what they say. For example, if you provide me with knowingly false information about an investment and, in reliance thereof I lose a million dollars, you can’t shield yourself from a civil fraud suit by asserting your First Amendment right to make the false statements.

    To me the issue is the scope of IIED claims. Now if the government specifically passed a law saying that courts must recognize IIED claims stemming from anti-military stataments, THAT would be a First Amendment issue.

  14. WTF is an ’emotional injury’? Its a term lawyers made up so that when someone gets their feelings hurt, the lawyers can sue.

    Its complete and utter bullshit.

    1. I will give you an example. An angry ex boyfriend stands out in front of ex-girlfriend’s wedding with pictures of her in lingerie that he had taken with the caption “the bride is a whore”. The bride is humiliated and devastated over her wedding day being ruined. She goes into a deep depression and stops eating and attempts suicide.

      That would be an open and shut case of IIED. The First Amendment would not save you.

      1. The First Amendment would not save you.

        But maybe it should.

        1. Although that would be slander, unless she did exchange money for sex.

          1. Slander is spoken. In print, it’s libel.

            1. I knew that and was being careful to get it right and somehow missed we were discussing a caption on the sign. Doh!

        2. Why should the first amendment protect your ability to torture and harass people? There is no political freedom involved here. There is no interest beyond the base interest in being an asshole.

          1. 1st A doesnt just protect political freedom. Torture? Dont see it. Harassment, eh? If she was a whore, Im not sure truth is harassment.

            The First Amendment was created to protect assholes. Have you not seen who are FFs were, a whole generation of freakin awesome assholes.

          2. I’m sorry, I must have missed the part of the first amendment that says only political speech is protected.

            I thought it said that congress shall make no law abridging the freedom of speech.

            1. How does holding a person liable for the foreseeable results of their outrageous speech or other conduct constitute Congress making a law abridging the freedom of speech?

              1. It certainly would act to “chill” some types of speech.

                The threat of a lawsuit even got the editors at H&R to post a story last week imploring us to not egg that asshole on. Therefore, our free speech was chilled because of the cost associated with defending a frivolous lawsuit. Based on this alone, I think most posters here would agree that allowing for liability (to the tune of $$$) for free speech is essentially passing a law to abridge said free speech.

                1. It arguably might “chill” speech, but does it constitute Congress making a law infringing upon it? Or is it simply the case that you are free to speak your mind but at a certain point, and under certain circumstances, it is possible for your “speech” to become tortious such that you can be held liable for damages that your “speech” caused to another? I.e., with great freedom comes great responsibilities?

                  1. What damage does speech cause to another person? If they take offense to your speech, and are somehow damaged by it, that is their own damn problem.

              2. If there was no law about it, their wouldn’t be any chance of having to pay for hurting people’s feelings. So it seems pretty clear that’s a law affecting the use of speech, which I would argue is abridging the freedom.

      2. So the girl in your situation, gets upset that someone she allowed to take promiscuous pictures of her in the past, is now showing those pictures in public? Sounds like a personal problem. If she didn’t want the pictures shown, don’t allow them to be taken.

        “The bride is humiliated and devastated over her wedding day being ruined. She goes into a deep depression and stops eating and attempts suicide.”

        Again, sounds like a personal problem. Can’t deal with your own past? Sue!

        1. No it sounds like her boyfriend is a dickhead who intentionally inflicted emotional distress in revenge. You don’t like the tort. We got that. But so what? The tort exists and it is not going away. The more interesting issue is does political content of your speech immunize you from suit.

          1. “No it sounds like her boyfriend is a dickhead”


            “who intentionally inflicted emotional distress in revenge.”

            – False. He showed a picture, and stated his opinion. If someone doesn’t like it, tough cookies. They are free to state their opinion in response.

            “You don’t like the tort. We got that. But so what?”

            Umm, I was posting my opinion on the topic. If you don’t like it, don’t bother reading or taking the time to respond.

            “The tort exists and it is not going away. ”

            Because assholes like you believe that ‘You hurt my feelings!’ is reason enough to sue.

            “The more interesting issue is does political content of your speech immunize you from suit.”

            I don’t really give a rats ass what you find more interesting. I find it interesting that we even entertain these types of lawsuits. Its shit like this that leads to certain lawyer types suing the shit out of anyone who posts something remotely negative about them.

          2. The tort should not exist. It is a creation of the pussies that pass for Americans these days. Slander or libel are available. If its is true, or an opinion, how someone reacts is immaterial.

            Again, we need to beat the living shit out of these Baptists from Waynesboro, or Westboro, or Bora Bora.

    2. + Skewes’ number.

  15. I realized once why its so hard to offend me – I dont value other people enough to give a damn what they say.

    1. Xacly. Let us unpussify America.

    2. I believe I come from a similar point of view. But I’d still be pretty pissed if someone called my daughter a cuntpickle.

      1. Let’s say some boy called your daughter a cuntpickle. And let’s say that boy had a car. And then let’s say that the boy’s car showed up with four slashed tires the next day. What’s wrong with that?

        1. “What’s wrong with that?”

          Damaging property is a crime. However, if your daughter wanted to tell that little shit that he has a small penis and is going to make girls laugh for the rest of his life, and she wants to say it in front of all their friends, so be it.

          1. But what if he’s the reincarnation of John Holmes? It used to be that if someone called your daughter a cuntpickle in your presence (assuming he was about your size), you could slap him and kick his ass if he fought back. The police would come, maybe, and you’d say, he called my daughter a cuntpickle. They would slap the guy some more and everyone would go home. Today, someone would record it on their phone, and post it on Youtube. Then the police would come and arrest you, and you would be sued by the guy’s parents, and your daughter’s social life would be toast.

            This is why I prefer a quiet tire-slashing.

            1. Ah, the fighting words doctrine.

              I have never had it properly explained, although the concept intrigues me.

              Still I can’t condone infringing on someone’s property rights because of their speech.

  16. John,
    Where can I buy an emotionaldistressometer?

    Does Hewlett Packard make them?

    1. Fuck off J sub D. You dickwad. IIED is a very old tort. You don’t like it, take it up with the common law.

      I am just telling you what the law is. It is not my problem it puts your panties in a wad.

      1. IIED is a very old tort?

        Citation Please.

        Oh, and FYI, the law on this is not cut and dry. The only case of IIED that made it to the Supremes has been shot down.

        Read Me

    2. Where can I buy an emotionaldistressometer?

      Most companies who make a financialdamagesometer carry one. Google around.

  17. “A month later , the court is to consider whether states can bar minors from buying violent videogames, on the theory that these games cause damage to developing minds”

    You can say the same thing about Obama’s speeches. Maybe we can ban them too.

  18. So when does Wolk v. Reason make it to the Supreme Court?

    1. Hi, I fuck kids.

      It is not as bad as it sounds. I meant young goats.

      I love Osama, too. He runs the kwiky mart in my neighborhood.

      Heil Hilter!

    2. SHHH! You fool! Don’t speak his name! You’ll draw his attention to us!

  19. And in other great First Amendment news, the American Academy of Pediatrics has called for the complete ban of all tobacco ads in any media accessable to children (i.e, all media), and severe restrictions on alcohol ads, all in the name of protecting kiddies. The group warns:

    “Unlike traditional advertising, media depictions of legal drugs are generally positive and invite no criticism, because they are not viewed as advertising,” they write. “The result is that young people receive mixed messages about substance use, and the media contribute signi?cantly to the risk that young people will engage in substance use.”

    (Traditional advertising is not generally positive?)

    Also..did you know that “having a TV in the bedroom is associated with greater substance abuse and sexual activity in teenagers”? Funny how it is associate with lesser sexual activity in adults….

    For more of this, see…..obacco-ads

    What the article leaves out is the docs also demand a ban on erectile dysfunction ads earlier than 10pm.

    1. Thanks Number 2 for proving my point about the pussyfying of America.

  20. What the article leaves out is the docs also demand a ban on erectile dysfunction ads earlier than 10pm.

    Is there a more odious subspecies of advertising than the smarmy, leering, yet oh-so-nobody’s-naked boner drug ad?

    1. How about the bad-smelling pussy ads?

      1. Yeah, rather than showing the lady walking in a field of flowers, they should show her being followed around by a bunch of cats.

    2. Perhaps not, but what does that have to do with children’s health? That they may grow up thinking that erections lasting more than four hours is a good thing?

  21. After 30+ years of video games and, oh, 15 years of free internet pr0n easily accessible to minors, crime rates are lower’n ever.
    I demand all those hyperventilating morons from the 80’s and 90’s explain this.

    Oh, and Satanic Heavy Metal is still around…

    1. And Snoop Dog and Alice Cooper do care commercials. Marilyn Manson probably would to if he wasn’t such a loser. Kids shocking their parents is not the end of civilization.

    2. And Snoop Dog and Alice Cooper do car commercials. Marilyn Manson probably would to if he wasn’t such a loser. Kids shocking their parents is not the end of civilization.

    3. Speaking of Heavy Metal as a youth I was perfectly willing to break just about any law short of murder to watch that movie simply because it had cartoon boobs and graphic violence.

      The easy access teen males have to boobs (not even cartoon!!) and graphic violence in my opinion has lessened their need to seek it out through alternate often illegal and dangerous means.

      Teen males need boobs and graphic violence the same way they need air food and water. Preventing them from getting their daily allotment of it creates civil disorder.

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