Supreme Court

A "Funeral Exception" to the First Amendment?

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SCOTUSblog's Lyle Denniston has a very interesting recap of yesterday's oral arguments in Snyder v. Phelps, the case stemming from the ugly military funeral protests staged by the anti-gay Westboro Baptist Church. Here's a snippet:

When the Supreme Court meets in private Friday to discuss Snyder v. Phelps, a profound question will hang over the discussion: Should we — and can we — set aside our emotional reaction?  If the answer, implicit or otherwise, is no, the Justices may then proceed to craft a way to write into the First Amendment a  "funeral exception" to the right to speak out in public in outrageous and hurtful ways.  It was apparent, throughout an hour of oral argument Wednesday, that emotion was more dominant than law, at least among most of the Justices.  Perhaps typically, Justice Ruth Bader Ginsburg, who did seem to want to talk about legal principles, could not keep from pronouncing that "this is a case about exploiting a private family's grief. Why should the First Amendment tolerate that?"…

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

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  1. Why should the First Amendment tolerate that?

    The First Amendment is designed to force – force – government to tolerate so very much in the way of speech from its citizens, even ugly speech.

    Not relevant to the 1st, but I heard an argument that the Westboro Church’s actions at funerals were nothing but a moneymaking scheme. They sue if they don’t get permits and they sue if their right to protest is interfered with. Supposedly they’ve already made a great deal of money.

    1. If that’s true, then perhaps they can be sued for extortion.

      1. No they can’t. They have a Constitutional right to receive a permit. At worst it makes them a professional plaintiffs’ group, but that’s a protected activity.

        1. They should start suing for empanadas too, but I bet that would piss off even more people.

    2. Long and short of it: If I was sitting on the jury, what those clowns are doing is “fighting words”. Getting the shit kicked out of them by the families….meh….

      1. agreed, you are for sure provocating someone in an extremely vunerable emotional state. One that for SURE would lead to a fight from me.

        1. I’ve wondered why these people haven’t had the shit beaten out of them on occasion.

      2. Good call; this may mark the long awaited return of the fighting words doctrine.

        1. And by long awaited, I mean long feared.

    3. A lot of the WBC/Phelps family are attorneys; civil rights lawyers even. Phelps himself is.

  2. As despicable as I think Fred Phelps and his loony followers are, I sure hope that the Supremes don’t go down this road. This case is like the perfect storm of red and blue pieties coming together to fuck the Constitution:

    “We must protect teh soldiers!”

    “We cannot tolerate hate speech about teh gays!”

    Yeah, let’s have a “funeral exception” and then next we can have a “wedding exception” and then there will be a “school parking lot exception” and then there will be a “public street exception” and then there will be a “public place exception” and then next thing you know there’s a “hate speech exception” and then we all might as well move to Vancouver because the scenery’s better and we’ve got the same tyrannical asshat thoughtcrime laws in both place.

    God lord this is scary.

    1. ^This. Douchebaggery aside, when it comes to civil liberties and rule of law, emotion should NEVER trump reason and logic.

      1. I’m not feeling so good…

    2. Why isn’t this a “reasonable time, place and manner” case, i.e., the loonies can say what they want, but cannot do so in an unreasonable time, place or manner?

      E.g., I can say whatever I like about Obamacare, but I cannot roll a sound truck up to your home at 2am, turn the amplifier to full blast, and announce my views over the loudspeaker.

      1. See some of the dicussion below.

        The basic gist is that you can make those types of reasonable restrictions so long as they are “content neutral”… but I can’t see how this case is about anything other than the content of what they’re saying.

        1. Based on what I am reading below, and having the facts of the case clarified, this is not a “time, place and manner” case. The protesters did not disrupt the funeral. If the lawsuit is based on what the protesters said on their website, how is this even an issue? It is protected by the First Amendment.

          My fear is that those justices who want to restrict “hate speech” will use this case to cut back on the First Amendment…much the same way Stevens used the desire to uphold federal marijuana laws in Gonzales v. Raich as a means of reaffirming Wickard, and undermining efforts to cut back on the scope of the commerce clause.

      2. Hey, that might actually work. Anyone know where Pelosi and Reid live? How about the rest of the mfs who voted for that bill?

      3. Forget that, why isn’t this a “punch the guy in the nose” case? As in “you have the right to say whatever you want, but if you say it at my son’s funeral you might get the everloving crap beaten out of you”.

        That sounds like a fair trade to me – just leave the state out of it altogether.

        1. This.

    3. Well, well said.

      “They were just doing it for maximum exposure”
      duh – if you want to maximise a public debate, thats what you do.

    4. Amen!!! “Asshat”…that’s beautiful.

  3. Funerals are a “public platform”? I guess if you’re at a federal cemetery, but do most soldiers get buried at Arlington? The rest of them are going to rest on private property, correct? Cemeteries are not a subject I’m well versed in.

    Oh, and: Yo, Fuck the WBC.

    1. The WBC stood where the police told them to stand–on public property 1000ft away from the church where the funeral was being held. They never went to the cemetery.

      They are also being sued in part for documents they posted on their website after the funeral that the soldier’s father came across when he googled his son’s name a couple weeks after the funeral.

      The ACLU brief on the case has a summary of the circumstances of the case.

      1. Fucked up the link.

        http://www.abanet.org/publiced…..LUofMD.pdf

  4. If they make an exception, it will pretty much guarantee an exponential growth in the “pomp” of military funeral services. The war dead’s funeral services will become an even more attractive venue for warmongering politicians (maybe anti-war politicians too, but how many of those are there) to go to and put on their serious, somber faces and ramble on about dulce et decorum est, etc, with no chance of being shouted down… in effect, to further politicize these tragic events by creating a criticism-free zone for the pro-war establishment.

    1. At least the anti-war groups have the decency to avoid picketing military funerals.

    2. Or not. But hey, hyperbole is your forte.

    3. The heckler’s veto of which you so lovingly speak is not protected by the 1st amendment either. If someone is giving a speech and you start shouting over them you can (and should) be removed, even on public property.

      And to say that forbidding heckling is somehow making a speaker immune to criticism is hysterical. Criticism can occur either quietly during the speech, in another place where the speech is being viewed on TV or something, and certainly after the speech in all sorts of media.

      1. You don’t allow for the option of a counter demonstration? Only one voice can speak at a time in public?

        So, if the Klan or the Illinois Nazis are making a speech, we must all stand there quietly and wait for them to finish? No heckling their parade? Only proper public decorum is permitted?

        What you speak of is courtesy, not speech.

      2. If someone is giving a speech and you start shouting over them you can (and should) be removed, even on public property.

        And with a “funeral exception” to free speech, after they’re ejected from the forum, they would be charged with a further crime, a political speech-crime.

        Since simple ejection from a private service is already legal, it’s that additional charge that is at issue with an “exception” to the first amendment, no? And would be, like, a bad thing in the eyes of free-thinking plebs, right?

        1. Forcible movement of a person requires that that person is not legally permitted to be in that place (or is unconscious and in need of medical treatment etc.). Otherwise it would be assault.

          1. Typically at a ticketed event, the event operator and site owner reserve the right to remove persons for any action they want. It’s usually on the back side of tickets or is in the TOS from where the tickets were purchased. Therefore, if you went to a ticketed event, you could be removed.

            If you attended a public event (parade, political rally, etc), your rights to heckle are protected. That’s why I kinda laughed when those staffers for Maxine Waters were removed from a public event Nancy Pelosi was holding in DC last month. Had it been a Team Red event, the ACLU and every other 1st Amendment crown would be raising hell, and rightfully so. Since it was the same team, they left quietly.

            link: http://thehill.com/homenews/ho…..er-pelosis

            Either way, this case is one of the most important cases to come before the SC in my lifetime. It will either serve as an upholding of our most basic right or it will begin the destruction of it. That may sound a bit melodramatic, but it’s true nonetheless.

      3. If someone is giving a speech and you start shouting over them you can (and should) be removed, even on public property.

        Define “someing giving a speech”. I want clear, bright line definitions.

      4. And to say that forbidding heckling is somehow making a speaker immune to criticism is hysterical. Criticism can occur either quietly during the speech, in another place where the speech is being viewed on TV or something, and certainly after the speech in all sorts of media.

        Awesome view of free speech.

        The right of the people to speak freely, using their unamplified voice in a public square of the government’s choosing, shall not be infringed.

  5. What if the burial ground in question was sold to a private interest and these gay haters were kicked off the property? Too simple?

    1. I’ve thought the same thing. Rent or sell it in advance.

      Are the protestors on public property at the cemetary?

      1. I think most of these funerals take place at houses of worship, but in any case the protests take place on whatever public property Phelps can find that is in view.

      2. I think WBC’s MO is to protest on public land near the cemetary, not on the cemetary itself, for this very reason. I think in the case before the supreme court they were actually 1,000 feet from the funeral in question. As idiotic as I think these guys are, I cannnot endorse the government silencing them in the name of preventing emotional distress.

        On the other hand, if someone (maybe a militant neo-pagan) were to chain Fred Phelps to his truck and drag him along the road for a few miles, I would feel pretty good about that. I suppose my desire for vigelanteism to replace violence I cannot tolerate from the state shows a high level of cognitive dissonace on my part.

        1. Facts and circumstances. If a family memeber of the deceased were to punch out a WBC member, I’d find that more udnerstnadable than a cop shooting an arthritic dog.

        2. I think that every time these WBC fuckers picket a funeral, they should be surrounded with gays making out and hitting on Phelps. Why gays don’t jump on this opportunity is a mystery to me.

          1. You see what this guy looks like?
            It like asking me to f*ck Mama Cass to protest folk songs – I may hate folk songs (its just an example) but i wouldn’t f*ck her using your dick.

            1. On the upside, I’m sure she weighs less now than she did in 1972.

              Either way, I think necrophilia is currently against the law.

              1. Did they remove the ham sammich before they buried her?

            2. Mama Cass wasn’t all that bad-looking. Besides, chubby girls can be real sweet. Not only that, but women who enjoy the carnal pleasure of food are more likely to enjoy the other carnal pleasures as well.

              1. I could’ve gotten the trifecta with Mama Cass then?

                http://www.youtube.com/watch?v=LHchl4AxsE0

              2. This ^^^

                Chubby girls generally try harder to please, accommodate your desires, and can’t get away with having ‘tude, so don’t knock it if you haven’t tried it.

                1. The “This^^^” was intended to point to this: Besides, chubby girls can be real sweet. Not only that, but women who enjoy the carnal pleasure of food are more likely to enjoy the other carnal pleasures as well.

                  1. Not intended for me? Well, you know what prole, the Jerk Store called. They’re running out of you!

                    1. @Costanza

                      Learn to use links so I can just fucking click on your link instead of cutting and pasting, and maybe I’ll give you a “This^^^” too.

                    2. The preview showed it as a link. George is getting upset!

                      The Trifecta-sex, food and TV

          2. I’ve seen some examples of the gays getting a little gay near Phelps, but yeah, why not a “they terk er jerbs” South Park style pile of homo-love as close to every Phelps gathering as possible?

    2. AFAIK, Phelps and his gang protest on the public roads outside the cemetery. But, yes, if they enter the cemetery’s grounds the owners have the full force of law behind them to evict them, IIANM.

      From what I have heard, they apparently are scrupulous about getting permits from the relevant authorities to use the roads for their protests.

      I would not be at all surprised if the allegations of WBC’s mercenary motives that FoE brought up at 11:06 were true.

      1. My understanding is that they stand in the street/median/easement across from the church or cemetary.

  6. They weren’t even at the cemetery.

    And the judgment was based in part on statements the WBC made at their website.

    So basically, the plaintiffs aren’t even just asking for a “funeral exception” or whatever. They are seeking a ruling that states that on the day of someone’s funeral you can’t engage in speech that hurts the feelings of any member of their family, even if you do it far away from the funeral, and even if you do it online.

    In practice, of course, the courts would only apply this to unpopular defendants. I’m sure if I posted online that I was happy about the funeral of some executed murderer, no court would actually award any plaintiff a judgment against me for hurt feelings.

    Basically the entire tort of intentional infliction of emotional distress is a pile of crap, designed to hand out awards to plaintiffs popular with courts and with society in general, by validating their feelings, their popular feelings, as worthy of compensation, while pissing on the rights of anyone who holds marginal or unpopular views.

    And the SCOTUS looks like they’re getting ready to endorse this, rather than strike down a tort that should have been abolished long ago when the 1st Amendment was imposed upon the states. They’ll write in their opinion that they just want to find a way to let a long-standing tort continue to exist, but the real reason will be because they’re quisling fuckers who don’t want to stand up for this particular unpopular group of speakers in this particular circumstance.

    I would be happy to see any justice who backs the plaintiff in this case hanging upside down from a lamppost like Mussolini.

    1. Excellent post. Thank you for helping clarify my thinking on this matter.

    2. IIED is a worthless, overbroad tort. But is the SC the venue to overturn a civil tort?

      1. If there was some archaic common law tort out there that awarded damages for “alienation of worship” or something if you convinced someone to stop tithing to their church, and some churchman resurrected it and started winning judgments on the basis of that tort, yeah – the SCOTUS would be an appropriate venue for getting rid of the tort.

        1. Not even close. The difference is that IIED is predicated on harm, which is a valid tort. It’s just emotional harm instead of physical harm. It has been abused many, many times, but again, the Supreme Court rules narrowly.

          1. No, it’s not.

            Your feelings exist only because you hold them.

            Stop holding them.

            The entire notion that the feelings you feel because you discover I don’t like you are “harms” is ludicrous on its face, tyrannical, and incompatible with the first amendment. The only question is whether or not our quisling courts will sell us out again.

            1. So what you really want is to reverse a large body of tort law and not necessarily protect the 1st?

              1. My position is that the first has already reversed that large body of tort law, but our courts have to this point failed in their duty to recognize this.

                1. I now understand the basis of your original post

            2. “Your feelings exist only because you hold them.

              Stop holding them.”

              Are you suggest that emotional reactions are voluntary? What about physical pain? Pain is just a mental state, so surely torture is not actionable — just tell yourself that the pain is all in your head. Do you actually think that’s a valid standard for tort?

              Besides, even to the extent that you can control your ability to feel emotional pain, it would be much easier for the other party to control it by not deliberately inflicting it on you. You can usually help protect yourself from most other damages as well, but that doesn’t make you the proximate cause of them or eliminate the defendant’s liability for them.

              I’m not saying people can’t go full retard with IIED, but completely dismissing it isn’t much better.

              1. My thinking on the 1st Amendment and speech torts is thus; I’d prefer all the traditional speech torts to make a comeback and the courts simply to embrace presumptions that make them impossible to sue under.

                I favor the view that all harms are compensable but would embrace fictions that hold that such harms cannot be caused through speech.

                At least bring back/impose the parasitic physical harm requirement for all speech torts.

          2. BTW, in my churchman example, there is in fact an actionable harm there. It’s tortious interference with a contract.

            It would just never fly in our courts BECAUSE IT’S SO RIDICULOUS.

            But to me, IIED is just as ridiculous and I’m convinced everyone would see that if they weren’t so annoyed with the WBC.

            1. What contract? Tithing may be an article of faith but it is none-the-less voluntary, no?

    3. Agree 100% with you, Fluffy. Well said.

      1. I almost agree 100% with Fluffy, but I can’t agree with the concept that there are *no* statements that don’t go beyond the pale. What that would be, I can’t really say. Do you go with a reasonable person standard or do you have to look at the parties involved?

        I agree that recognizing IIED is a very slippery slope. Do you get to sue the Nazis in Skokie because their parade made you feel bad? Do you get a Holocaust survivor exception?

        1. Give me an example of something that “goes beyond the pale”.

          1. You’re asking me? Why do think I posed the question to you?

            I believe there is *nothing* that would meet that standard when you’re talking about the president or a congresscritter or anyone else that has put themselves in the political arena. Wear the big boy pants if you want to be in office. If anyone wants to the say that the president is a demon-worshiping commie that fucks sheep, fine with me.

            But to a private citizen…I don’t know, maybe some of Sug’s slashfic could qualify. Sure, *we* think it’s great…

            I think I’m still mulling this over and working it out. I keep going back to Falwell vs. Flynt and agreeing with that outcome. It’s not a clear and bright line aas to when emotional distress is actionable and when it’s not, which in that case, maybe IIED should be thrown in the trash on that basis.

          2. Simple; statements which would meet the old legal standards used to mitigate culpability in homicide cases. There’s a large body of law there.

        2. I almost agree 100% with Fluffy, but I can’t agree with the concept that there are *no* statements that don’t go beyond the pale. What that would be, I can’t really say. Do you go with a reasonable person standard or do you have to look at the parties involved?

          Unless you can come up with a more compelling argument than

          “well, I can’t think of any actual examples, but I’m willing to let SCOTUS carve out all kinds of exceptions to our inalienable right to free speech anyway”

          I’m gonna go with this: No fucking exceptions to speech content protection. You get to say what you want to say, be as big an arsehole as you want.

          If you create noise pollution by shouting through a loudspeaker at 2 am, then you can be forced to quit creating that noise pollution, but you can continue to say whatever the hell you want at a reasonable volume.

          1. The one exception would be slander. Or is it libel. Ummm, yeah slander. Unless its on your sign or website, then libel.

            About a 50% chance I got that right.

            1. Right, but that exception is already there, so there’s no need for SCOTUS to rule on that concept.

          2. You gotta read down prole. I already abandoned IIED. Not because my imagination isn’t sufficient to come up with a solid example, but because you need an objective standard to enforce. Otherwise, it’s all up to the listener to define what’s objectionable speech.

            I’m gonna go with this: No fucking exceptions to speech content protection. You get to say what you want to say, be as big an arsehole as you want.

            I agree insofar as prior restraint goes. But having a right doesn’t absolve you from damages from exercising that right. No libel? No slander? Fraud? That’s a shitload of jurisprudence to throw overboard.

            1. For whatever it’s worth, a subjective standard has a place in IIoED – if the intent is proven, so what if the statement wouldn’t offend anyone else as long as it was meant to and did.

              Don’t confuse IIoED with NIoED.

    4. very good points.
      One minor thing – they are a 1,000 feet away – 10 football fields. I really doubt the mourners could actually see this guy.
      O, one other thing. Why should they care what insane people think? (or is there way down deep the thought that maybe the death was for naught?)

      1. One minor thing – they are a 1,000 feet away – 10 football fields.

        A football field is over 300 feet long (including the endzones), so more like 3 football fields, but point well-taken otherwise.

        1. Mr. Speedy Fingers just dropping by, eh?

      2. One minor thing – they are a 1,000 feet away – 10 football fields.

        Last time I looked 10 football fields would be 3000 feet or 1000 yards.

      3. Dude, 1000 feet != 1000 yards.

        1. What is that is english.

          1. Like you would understand it in English.

        2. Some of the weirdos use metric yards here.

      4. Asside from feet/yards issues, you are completely right. Snyder learned of the signs’ content from TV news coverage after the funeral. He did not see the signs during the funeral.

        So everyone involved should stipulate that the funeral was not disrupted by the protesters, so this is really about what can be said that gets broadcast by a third party (the news) or published on a website, to which you do not invite the aggrieved (he didn’t find out about that part until he did a google search to find any online memorials to his son).

    5. They are seeking a ruling that states that on the day of someone’s funeral you can’t engage in speech that hurts the feelings of any member of their family, even if you do it far away from the funeral, and even if you do it online.

      The Phelpses accused the Synders of raising their son Matthew for the devil and hell.

      1. Were the Snyders forced to listen to the turds at Westvalley Baptist Church (joke from last week’s thread)? Are they being strapped to a chair like Alex Delarge with their eyes pried open? Are they forced to sit in the pews at Westhampton?

        The answer to these questions is no, therefore and emotional distress caused is a direct result of the Snyders acknowledging people who are 1000 yards away on public property doing what we have always had a right to do. Oh, and the Snyder’s computers aren’t forced to go to the Westlake Church’s website every time they log on, is it?

        I’m sorry, but avoidance is the responsibility of the offended, not the offensive.

        1. Oh, and the Snyder’s computers aren’t forced to go to the Westlake Church’s website every time they log on, is it?

          True.

          But other people could go to the web site and read that the Snyders raised their son for the Devil and Hell. That could injure the Snyders reputation.

          1. It’s just opinion, though. What Phelps said cannot be completely disproven.

            If he said their son fucked a donkey in the ass on Tuesday April 2nd, that could be disproven and libel would come into play. However, an opinion, cannot be disproven because the holder of it will still hold it regardless of what the object of the opinion thinks.

            If I said Obama was a stupid fuckwit and his mother raised him to destroy a great country, that would be my opinion, and cannot be held as libelous. If I said Michele Obama was a hermaphrodite with hamhocks for arms, I could be held for libel because it could *could, I say* be disproven.

        2. (joke from last week’s thread)

          I was already looking to see if it was a John post.

  7. I think the question is more complicated that just the 1st ammendment.

    It is clear to me that the government must tolerate all speach. Congress cannot pass laws to prevent anyone from protesting the government pretty much anywhere or anytime.

    But this case is whether or not a party (e.g., the Westboro church) can harm a private individual while conducting protected political speach and can that private individual seek damages through civil action.

    I’m not sure the government actually has a role in this particular problem. The Westboro church took many actions directly aimed a Mr. Snyder (including publication of inflamatory speach on the web), and Mr. Snyder sued for damages under state law. It’s not obvious to me that Mr. Snyder suit is prohibitied by the 1st ammendment.

    1. OK, so if I and a bunch of my friends want to protest the government on the sidewalk in front of your house between midnight and 6 am, that’s my right?

      1. Comply with local noise ordinances and you got it.

        1. Local noise ordinances usually prohibit prolonged noise-making in residential areas during those hours, which prevents me from choosing a time and place of my choosing.

          And there are usually ordinances against loitering silently in front of someone’s house at 3 AM, for obvious reasons.

          1. Right, except when the law takes into consideration what the person is doing inside the home you are protesting, it is discriminating against the protestor, in favor of whatever politically favored activity is going on inside the house.

            Like, assuming noise ordinances are obeyed, it is illegal to protest a funeral, but OK to protest, say, a seder.

            You know who else protested seders, right?

          2. Local noise ordinances usually prohibit prolonged noise-making in residential areas during those hours, which prevents me from choosing a time and place of my choosing.

            You should be able to stand outside my house on the public property that is the roadside protesting governmental action at midnight to 6 am — quietly, so you don’t wake people who are sleeping. Maybe hold a sign, maybe talk at a normal conversational tone.

            The issue of how loud a volume you can use is different than the issue of the content of your speech. The former should be subject to reasonable restrictions, the latter not at all.

          3. That has not stopped the patriotic bikers who out-noise the WBC freaks.

      2. If the Westboro church tells Mr. Synder that “your son died because the US supports faggots”, that is political speech.

        If the Westboro church tell Mr. Synder that “your son died because you raised him to support faggots”. That is not political speech, that is a personal attack. The Westboro church did this.

        At orals, the Westboro church claimed that Mr Synder made a public statement like “when will this insane war end”; therefore, Mr Synder is public figure so personal attacks are protected speech.

        This case is not about state restriction on political speech. It is solely about two things: 1) did the church attack and harm Mr. Synder; 2) Can Mr Snyder sue the church.

        1. “your son died because you raised him to support faggots”

          That’s absolutely, positively and without limitation religious speech.

          Every last Old Testament prophet made statements at least as personal and incendiary.

          did the church attack and harm Mr. Synder

          No free society would recognize your hurt feelings as the result of someone else’s negative opinion of you as actionable.

          You have absolutely no right to my positive opinion. None. No matter how vile my hatred of you, you are not harmed in any legitimate or actionable sense by it. If you suffer as a result of your feelings over my opinion of you, get different feelings.

          1. I didn’t say the personal attack always amounts to an actionable tort. I said it wasn’t political speech.

            The determination of whether or not the personal attack is an actionable tort is what the fucking CIVIL courts are for.

            This is not a 1st amendment case. This is a tort case. I can’t say whether the judgement against WBC was correct, but I am certain the appeals court was wrong to reverse the judgement on 1st amendment grounds.

            1. Are you under the misconception that only political speech is protected under the 1st? You sure seem to be arguing that Westboro should lose because their speech isn’t political.

              1. Truth in advertising laws do not apply to political ads. You can lie your ass off in a political add and the FCC will do nothing about it.

                Right or wrong, political speech is given absolute deference under the 1st. However, there are limits placed on non-political speech by the body of law that exists today.

                So in the case of the WBC, if they stay on message and say hideous things condemning the results of government action, they are untouchable.

                In this case, they strayed off message and posted hateful messages about an individual. The current libel laws differentiate between public and private figures. And the WBC argued in orals that Mr. Snyders prior comments in the press made him public figure, thereby making his claims of IIED moot.

                At this point, I am not totally certain what the WBC is claiming is their defense.

          2. If I could sue everyone that offended me, I’d pauperize Congress in a matter of weeks.

            1. pauper…I’d do it in nanoseconds.

              1. I’d do it in nanoseconds.

                Oooo, look at Mr. “I’ve Already Got A Script Setup To File 635 Torts”.

                1. 535 torts, unless they added an extra 100 congressarseholes when i wasn’t looking.

                  1. 540something, Im suing the fuckers from DC and Puerto Rico too.

                2. “I’ve Already Got A Script Setup To File 635 Torts”

                  Sounds like the protagonist (if you can call him that) in Accelerando.

          3. To be clear, the WBC has a 1st amedment right to stand in the public right-of-way and say whatever hideous things they want to say so long as they are addressing their greivances with the government.

            If the step over the line and start targeting private individuals, then a jury decide if that amounts to damages.

            1. Cases such as this should actually be dismissed before a jury is even empaneled.

              Otherwise this is a perfect opportunity for CoS-style squelching speech through lawsuits.

              1. The suit was about the WBC intentionally inflicted emotional distress on Mr. Snyder.

                It could be that the judgement that Mr. Snyder got was a just outcome. Or it could have been that the appeals court should have thrown out the judgement because the actions of the WBC did not amount to IIED. Or it could be the jury should have rejected the claims. Or it could be that the original trial judge should have canned the suit right from the beginning.

                But this should never have been about the 1st amendment.

                1. The first amendment is incorporated against the states.

                  The civil courts are state bodies.

                  That means that the civil courts should not be allowed to enforce any tort that if written as a law would violate the first amendment.

            2. The public figure / private figure distinction exists nowhere in the first amendment. The distinction between political speech and nonpolitical speech exists nowhere in the first amendment.

              You’re a public figure as soon as I say you are. Our dispute is political as soon as we disagree about it.

              1. I don’t agree, but I understand.

                1. Ah Fluffy, I never took you for a Shelley v. Kraemer man.

                  Are you really sure about what you said at 12:28?

          4. Let’s take it to more than words.

            Let’s say you have a crazed and hateful stalker. This person photochops pictures of you having sex with animals, submissive BSDM, takes excerpts from your personal diary which are unpopular opinions and ideas and plasters them all over town and in your community. Doing so damages your standing in the community and understandably inflicts emotional distress with you.

            Do you have an actionable tort over this speech then, or are the hurt feelings still just your problem?

            1. The libel rationale is much different.

              Libel regards the good opinion of third parties as a tangible good. You can benefit from the good opinion of third parties. If I engage in false speech about you that damages that good opinion, I have taken something from you, and the court attempts to define compensation for what I have taken.

              I don’t agree with libel laws in general, but at least there’s a reasonable chain there between a good to which you are entitled, my action taking that good away, and your compensation before the court.

              But here we’re talking about the good opinion of a party to the case. You never possessed any right to my good opinion, because you never had it. If I express the fact that I hate you, you don’t lose anything. You are simply becoming aware of a true fact.

              There is no basis for compensation here other than “You’re mean” which just isn’t good enough.

              1. I am gobsmacked by your logic and reasoning (I mean that in a good way)
                OK, I looked up ‘gobsmacked’ and it implies negativity.
                OK, I am impressed by your logic and reasoning!!! 🙂

            2. You have actionable tort over the libel, and theft of your personal property, and if it impacts your financial situation, but not because your feelings were hurt.

            3. Do you have an actionable tort over this speech then, or are the hurt feelings still just your problem?

              RTFFA (Read The Fucking First Amendment). All these tort laws about hurt feelings violate the First. SCOTUS not yet coming around to a proper understanding of the First doesn’t mean the First is null and void, it means the SCOTUS justices who support these violations are violating their oath of office and should be removed because of that and replaced with justices willing to follow the constitution.

              1. RTFFA (Read The Fucking First Amendment). All these tort laws about hurt feelings violate the First.

                So are torts over libel, slander, defamation and fraud. Nowhere are they mentioned in the 1st, but yet we recognize all of these as legitimate actions.

                1. Our present free speech jurisprudence has very little to do with what the free speech clause of the 1st Amendment actually means which is basically “no prior restraints.”

                  That is what the term of art meant. One can argue about the interactions between the freedom of the press and free speech clauses but it’s commonly excepted that the 1st Amendment speech clauses originally meant something far narrower.

                  Not that I’m a fan of that.

        2. That is not political speech, that is a personal attack.

          No, a personal attack would have been if someone punched him in the nose.

          If I was WBC, I’d trot out one witness who heard Mr Snyder say on the playground when he was a kid, “Sticks and stones may break my bones, but words will never hurt me.” That should make this open and shut.

          We’d be a lot litigious as a society if we all lived by the words we said on playgrounds when we were 10.*

          *Except maybe smear the queer. I’m not gay but that wouldn’t be cool.

          1. I have no problem with fluffy or anyone else here saying IIED is bullshit and should be stripped from tort law.

            I am just positing that the WBC/Snyder case should be decided on IIED issues and not on the 1st amendment.

            1. But IIED is bullshit because of the 1st amendment. Hence it should be decided on the 1st amendment.

              1. If you want to overthrow IIED on 1st amendment grounds, go right ahead.

                However, the WBC/Snyder case was brought under IIED and should be decided under IIED.

                We appear to be heading towards a worst case scenario where the supreme court does neither of those two options and carves away a chunk of the 1st ammendment instead.

              2. IIED doesn’t always involve speech.

        3. “If the Westboro church tell Mr. Synder that “your son died because you raised him to support faggots”. That is not political speech, that is a personal attack. The Westboro church did this.”

          Are the Snyders raging homophobes? If not, one part is religious speculation and the other part is debatably true.

  8. The WBC is careful about obeying all ordinances relating to protesting. In other words they broke no laws, so the court will have to invent a new standard out of thin air that will restrict the first amendment. The test seems to me to be, would any other message be allowed at the same venue? People holding signs in support of the soldier would surely be allowed. To me, to carve out an exception because of the particular message (which is both political and religious) is blatantly in violation of free speech.

    1. The state did not take action against the church. A private individual sued the church. The question is whether probition against governemnt restriction of free speach applies to a private entity trying to sue another private entity.

    2. The soldier’s family is suing WBC for “intentional infliction of emotional distress,” a common but overbroad tort. Phelps counters that their speech is protected political rhetoric and therefore immune to such a tort.

      The case isn’t about barring WBC, it’s about the legality of suing them for their speech.

      1. So the WBC can just tell the civil court to screw off?

    3. …but McCain-Feingold is okay in my book.

      1. C’mon, let’s not start this again. The amount of anonymous spoofing has really sucked lately. Call yourself, “Spoof Tony” or something and your point will still be clear and 100% valid, but let Tony be Tony.

    4. Tony|10.7.10 @ 11:29AM|#

      The WBC is careful about obeying all ordinances relating to protesting. In other words they broke no laws, so the court will have to invent a new standard out of thin air that will restrict the first amendment. The test seems to me to be, would any other message be allowed at the same venue? People holding signs in support of the soldier would surely be allowed. To me, to carve out an exception because of the particular message (which is both political and religious) is blatantly in violation of free speech.

      OMG, I totally agree with Tony about something.

      * head assplodes *

  9. As despicable as I think Fred Phelps and his loony followers are, I sure hope that the Supremes don’t go down this road.

    West Texas Boy, you said it better than I. Phelps and his clan are dispicable. But, I don’t want the thin edge of the wedge pushed in any farther than it is already with the concept of “hate speach” being different than free speach.

    And, yo, fuck Phelps and his followers.

    Oh go piss off: Irresponsible Hater|10.7.10 @ 11:15AM|#

  10. Would any of you folks defending WBC have the chutzpah to picket and shout insults at someone’s funeral?

    1. And that question is relevant, how?

      1. It is relevant if you are willing to walk the walk and not just talk the talk.
        Whatever happened to good old-fashioned decency and respect? Where I live, drivers pull onto the side of the road when a funeral procession is approaching. They don’t know or care about who’s being buried.

        1. Walk what walk? To believe in the 1st Amendment, one has to do all the things that one believes are protected?

          You are a fucking idiot.

          1. No, I’m just not a libertarian.
            And you are a perfect example of what’s wrong with libertarians. You think you’re superior to us rubes out here in the sticks who aren’t interested in rebelling against everything that smacks of conformity – where it’s government or religion.

            1. I ment to type “whether it’s government or religion”.

              1. I wish all the government and religion-hating anarcho-libertarians would just move to the Left Coast, secede from the Union, and leave the rest of us alone.

                1. You have made me feel unloved. Because of my emotional distress, you now owe me $5 million.

            2. We are superior to you. We actually stand up for principles and reason over emotion.

            3. Please troll elsewhere fucktard.

              1. Sticks and stones, buddy!

            4. So, I think you (Cbalducc) are gone by now, but in case you’re not, the proper example of “walking the walk” would be asking if one would recognize WBC’s right to protest if they were doing so at THEIR loved one’s funeral. Still not sure if it’s relevant, but if that’s the road you want to go down in arguing the issue, then THAT’S the question to ask.

              1. If they want to stand on public property being dicks at a funeral of a relative of mine, I might speak out about them being dicks, but I would still defend their right to say whatever the heck they wanted.

        2. I can’t tell if you’re being hostile or not, so I’ll just respond.

          I am not disagreeing with you about decency and good manners at all – note my handle, for crying out loud. I was driving through a small town near my hometown this summer and came across a funeral procession and some people even got out of the car and bowed their heads. I know about good manners.

          But my point is that whether or not any of us have better manners than WBC is irrelevant.

          As libertarians, we wish to be allowed to regulate ourselves and we would hope that Fred Phelps and his dispicable crew would regulate themselves appropriate, too.

          But we certainly don’t want the United States government to start defining “old fashioned decency and respect” which I think is the implicit premise of your original question, no?

          And if I completely misinterpreted your reasoning, just disregard this entire post.

        3. The 1st admendment doesn’t apply to what I WOULD do, it applies to what ANYONE WOULD do. I would never in a milllion years protest a funeral even of someone I hated, but that’s not the test of the 1st admendment. It protects ALL speech even that which you and I hate. It doesn’t apply to decency at all, there is nowhere in the Constitution that I’m aware of that says that people must be decent.

        4. Wow, that standard’s gonna be pretty rough on pro-choice men…

      1. My grandparents were flying their flag high when Ted Kennedy dropped dead. I could see showing up at his funeral and celebrating.

    2. I’d be happy to picket Fred Phelps’ funeral. I might even yell “God Hates fags like Fred Phelps!” as loud as I could through a bullhorn.

    3. I don’t think anyone is defending the WBC. They are defending the WBC’s right, however unpalatable you might find it, to be despicable worms. Those are two different things.

      1. This is lost on so many people. I’m sure you all get the same looks I do when I defend some asshole’s rights when they are clearly as asshole. Too often, a clear explanation of what I am defending, not whom, doesn’t get people to understand because emotion rules in this world.

        1. Agreed. Defending “the thing” and the rights which enable “the thing” to happen aren’t the same, but your average person is either unwilling or unable to separate the two.

    4. Well, would you be willing to squirt milk out your ass?
      We owe our right to storm squirters II to the noble young women who do such a thing.
      Most people wouldn’t be willing, but we owe our freedom to see such filth and perversion due to these freedom loving fetishists.
      I would be willing to do such a thing, but nobody, NOBODY would want to see such a thing…due to those 3 bean chalupas for breakfast.

    5. If it’s Hymietown Jackson’s funeral, or *uck Schumer, or Wicked Eliot Spitzer, absolutely.

    6. I regularly pull to the side of the road when a funeral procession passes. I also would have had no problem at all protesting and yelling insults outside the funerals of Ted Kennedy or Robert Byrd.

    7. I wouldn’t picket a funeral because I’m not an asshole.

      I do firmly believe, however, that there is a 1st Amendment right to be an asshole.

    8. If WBC is ever protesting near me, I plan to got there with a sign that says:

      God Hates Figs
      Matthew 21:18-22

  11. If you read the history of the “shout fire in crowded theater” example, you will find that the justice who said it pulled it out of his ass. It had nothing to do with the case before him. In fact he made a terrible decision in that very case. Wouldn’t it be nice if free speech actually meant it? But laws and rules and even the Bill of Rights were made by humans, thus too squishy for a peaceful anarchist.

  12. It was apparent, throughout an hour of oral argument Wednesday, that emotion was more dominant than law, at least among most of the Justices.

    Imagine my surprise.

    Those Westboro guys are the scum of the earth, but they have the right to protest. Unfortunately, they’re too fucking cowardly to protest at the front gate of Fort Benning.

  13. I’m not sure why the plaintiffs took the approach they did. I would have presented it to the Court as follows:

    (1) The 1A has never provided immunity from the damages caused by speech. Libel, slander, and fraud are all valid claims under the 1A.

    (2) We are not seeking prior restraint or an injunction here. We are seeking damages. First Amendment jurisprudence relating to prior restraint or injunctions does not apply.

    (3) This case does break new ground in seeking damages for intentional infliction of emotional distress. We think, however, that applying standards developed under libel and standard cases to this kind of claim is appropriate. Where the plaintiff shows the defendant acted with malice or reckless disregard of the damage they are doing, they can and should be held liable.

    1. Thank you for the clear and concise summary.

    2. To hand the Court a club, there’s always the time, place, and manner line of cases. I may be wrong, but I think that was the basis for requiring abortion protesters to stay so many feet away from abortion clinics.

      Also, speech can have components that are rightly actionable. If someone set up a 10,000 decibel loudspeaker in my neighborhood, I can damn well stop him from using it, especially at night, and can seek damages for his use of the speaker. Ditto if he placed a blimp 10 feet over my house with a message on it.

      I’m a believer that freedom of speech should be as strong as it can possibly be, but the reality is that we recognize all sorts of exceptions, from copyright to perjury.

      1. The issue always boils down to whether or not the restriction is “content neutral.”

        From what I’ve seen so far about this case, it’s about nothing but content. How can “emotional distress” claims not be?

        1. Sorry, I should’ve noted that–I did in another comment below. That’s absolutely correct, and I doubt they can do it in this case unless they’re going to create some “zone of privacy.” The problem is that there could be a ton of unintended consequences if they do that with funerals.

          1. Universities have already done this.

            Every university campus I know of has a designated free speech zone (which is generally designated as such just for the inevitable crazy preacher yelling about how we’re all going to hell).

        2. The issue always boils down to whether or not the restriction is “content neutral.”

          See, you’re falling into the prior restraint trap. That’s a prior restraint standard, not a damages standard.

          This isn’t/shouldn’t be a prior restraint case.

          1. That’s true enough, but I could see the Court coming up with some sort of “zone” to deal with the issue, anyway.

      2. Look, I don’t agree with the whole “time, place and manner” dodge, but even if I did – the WBC complied with the permit process here. Having done that, they should have an absolute safe harbor against any claim that the time, place or manner of their speech was actionable. The state should be estopped from claiming that there is a time, place or manner problem with your speech after they specifically issue you a permit for it. And that includes the state’s civil courts.

    3. (3) represents a damned slippery slope. Political criticism is sure to inflict emotional distress, intentionally. A group protesting outside an abortion clinic, shouting “don’t kill your babies!” is going to inflict emotional distress (and this is intentional — they’re obviously trying to produce an emotional response).

      A huge variety of speech is going to be liable to lawsuits if the SCOTUS were to sanction such an argument. Think about what the Church of Scientology does with copyright lawsuits now, but imagine it spreading to everyone who’s been harshly criticized in public.

      I’ll stick with the captive audience exception to put WBC in its place, thank you very much. Much narrower.

      1. I could see some content-neutral restrictions maybe being allowed, but that’s a difficult road to walk when dealing with speech issues.

        As far as the IIED claim “trumping” the First Amendment, I don’t see any way of that happening unless it’s on the grounds of the traditional carevouts. Like, for instance, defamation. So if the protesters are making false statements, they could be liable under defamation and maybe even for IIED, but only to the extent that the content is maliciously false.

        1. Where does the line come with regard to opinion, which is neither true nor false by definition, and false statements?

          “Gods hates fags.” “Your son died because of the gays” are clearly opinion.

          Is “I don’t know if Fred Phelps fucks sheep” maliciously false? Up thread, I posited someone photochopping you having sex with animals. How obvious does the photochopping have to be for it to be false statement or malicious opinion?

          1. Opinions are protected and not generally actionable, though it is possible to couch actionable defamatory statements in the form of an opinion.

            Also, clearly hyperbolic statements are usually not found to be defamatory.

            A decade or two ago, calling the son a fag if he weren’t gay would likely be defamatory. Not sure if that holds today.

            1. Sure, but how hyperbolic does it have to be to be actionable? Obviously, there is a line that has to be crossed.

              I started out the thread thinking that Snyder may have had an actionable tort, but now I’m not so sure.

              If you don’t have an objective standard for what speech is outrageous and not protected speech, it’s a quick slide down the slope of finding whatever the recipient and/or the dominant culture finds to be offensive.

          2. “Gods hates fags.” “Your son died because of the gays” are clearly opinion.

            What about, “you raised your son for the Devil”?

            1. We’d have to call the Devil as a witness, but I’m not sure his testimony would be admissible, as he’s a known liar.

            2. It’s clearly religious speech. It shouldn’t be any more actionable than telling someone they are going to hell because they are gay.

              1. It’s clearly religious speech. It shouldn’t be any more actionable than telling someone they are going to hell because they are gay.

                The “raised his son for the Devil and Hell” phrase was a statement that the Snyders performed an act (in this case, raising Matthew Snyder for the Devil and Hell). It is far different than merely calling the Snyders devilish (which would be protected as a mere statement of opinion).

                To give another example, calling Abraham Foxman a thieving Jew is more actionable than calling him a greedy Jew. (Claiming that Foxman embezzled money from the ADL is unquestionably actionable.)

        2. Are their statements false? Did Mr. Snyder raise his son to protect faggots?

          faggot (n.) – 1. branch or twig, or bundle of these
          2. unit of measurement for bundle of sticks
          3. British meatball commonly made of pork offal

          Anyway, how hard would it be to get a permit to protest outside of the WBC compound with every variety of person they despise in full parade dress? It would be awesome to see military uniforms alongside gay dudes wearing nothing but feather boas and giant sunglasses and spray painted with rainbow glitter in all the right places.

          1. Did you know that the reason people started calling them faggots was cause the British would bind a bunch of them together and burn them at the stake, much like witches.

            1. I did not, but now I think I understand why they call cigarettes “fags.”

    4. So Mr. lawyer type, can the SC simply state that the appeals court was wrong to vacate the judgement on 1st amedment grounds and then send it back to the appeals court to revist WBC’s appeal? Or was WBC’s appeal based soley on the 1st?

    5. The 1A has never provided immunity from the damages caused by speech. Libel, slander, and fraud are all valid claims under the 1A.

      That’s not because of the civil nature of the offenses (as opposed to criminal), it’s because of the cultural history of those things being truly harmful, and not serving any useful purpose. Fraud, as well as threats and perjury, are examples of criminally punishable speech acts.

      So I don’t think the argument that the 1st amendment doesn’t apply to civil actions holds water. The federal court system is set up by Congress, so allowing it to punish speech acts amounts to a Congressional restriction on that speech.

    6. But don’t potential damages, while not technically a prior restraint, cause a chilling effect on speech?

  14. A “Funeral Exception” to the First Amendment?

    And the wedding exception.
    And the graduation exception.
    And the worship exception.
    And the hospital exception.
    ad nauseum.

    1. You forgot the political exception.

      1. No, I didn’t.

        1. Hey, don’t you take all the credit!

  15. Wouldn’t it be nice if free speech actually meant it?

    You are free to speak, and free to bear the consequences of speaking, even when those consequences include liability for damages.

    1. So the real problem is about allowing people to sue because someone hurt theiw feewings.

    2. And at the end of that road, we could end up with libel laws like Britain’s.

    3. Your willingness to ignore the 1st Amendment causes me distress. I’d like to sue you for $50,000.

    4. Or jail time.

  16. WBC should leave the dead alone and protest at an active base. All you need is a picture ID.

    1. But that would take 2 things:

      Balls and conviction.

      They have neither.

  17. I do think that they have to be allowed the public protest. I’m not sure they have to be allowed the public protest wherever or whenever they want to have it? I know that the KKK has to get a permit to hold a demonstration in Columbus which is usually held at the Statehouse. I’m not sure if they have to allow them to hold their rally there or if they can make them hold it down the street? I wonder if there are any cases where protesters were allowed a protest but denied a specific public location or date/time? What if I wanted to protest on the Whitehouse lawn? Furthermore can the time of the protest be restricted. In the Columbus example if there was already an event planned for the Statehouse would the State be able to say yes you can have your protest there but you need to pick another time or day. if so it seems like they would be able to make the same restriction for a funeral service? I do think these folks from Westboro are shovel ready projects though.

    1. Perhaps a solution to this is for people burying soldiers to also get a permit to have a gathering all around the property so it is occupied at the time of their son or daughter’s funeral. If Phelps steps onto another’s protest area he may be in violation of some other law. I don’t know, just trying to think of ways to beat the turd at his own game.

      1. Yeah, let’s combat a stupid person by passing a stupid law or adding another stupid regulation or restriction.

        That’ll teach em. Meanwhile the rest of America becomes collateral damage.

        1. I mean he’d be in violation of a different already existing law, not a newly created one for this person. Isn’t it already true that you can’t jump into another group’s protest to break it up? Isn’t that why cops always cordon off competing protests into separate groups? It’s just a buffer zone.

          1. They didn’t stop the SEIU or AFSCME thugs from breaking up tea party groups (or biting ears off). It didn’t keep plants from bringing racist signs to tea party events even after they were asked to leave.

            I know this is just selective prosecution, but isn’t that what the whole deal here is in the first place.

            That and I misread your earlier post. Sorry about that.

  18. Another factoid that seems to mostly have gotten lost in the debate is that the WBC also posted some pretty hateful shit about the dad and the family on its website. Basically accusing the dad of sending his son off to be killed in the defense of homosexuals and deserving the wrath of God or some such nutbaggery.

    I dunno – to me, this one is not quite so cut-and-dried as some would have it be. It seems to me that at some point there is an extent to which you are not engaging in the kind of speech activity the First Amendment was meant to protect. Not saying I’ve got a good answer to that question – it’s certainly more of a qualitative than quantitative divider. Although bright line tests generally are desirable, they’re not always possible. And I don’t know that absolutism always is either.

    I’m reserving judgment until I get a chance to read the briefs and the transcripts of the oral arguments.

    1. It seems to me that at some point there is an extent to which you are not engaging in the kind of speech activity the First Amendment was meant to protect.

      So you want to revise the First Amendment to prohibit certain kinds of speech?

      Go ahead, propose a constitutional amendment and try to get it passed. But don’t try to get SCOTUS to abrogate it unilaterally.

      1. Are we going by the original understanding of the Constitution, or are we using someone’s modern interpretation of what we think the words now mean, or can be read to mean?

        There are various schools of thought on interpreting the Constitution. I tend to adhere to the original understanding school, because as far as I can tell, it is the best method for establishing consistency of meaning, which is desirable because it allows predictable outcomes. We know what the rules are up front, rather than hoping some court or creative plaintiff comes up with some attractive new meaning for words that have been there all along.

        So the question is then what is “the freedom of speech”? Under modern sensibilities, we easily could argue that it means you can say whatever the fuck you want, whenver the fuck you want, consequences be damned, and anyone who doesn’t like it can kiss my entire fat, hairy ass.

        Except that there is no historical support for that interpretation.

        Of course, then there is the argument that just because it never was that way before doesn’t mean it should continue to be that way. After all, there have been all kinds of fucked-up and horrible things done by the U.S. government over the years. So just because “the freedom of speech” never would have been understood to protect this hateful shit doesn’t mean it shouldn’t today.

        Which is all really just to say it’s not so easy-peasy as you’re making it out to be, and it’s not so clear and clean-cut that’s its an abrogation of the First Amendment. Witness the fact that a federal District Court ruled one way and the Court of Appeals ruled another, and the SCOTUS took up the appeal. If it were so damn obvious and easy, it’s not too likely to have made it that far.

        What kind of “speech” is protected under the First Amendment and what is meant by “the freedom of” it has been the subject of litigation for generations. It is akin to the question of what kind of “arms” are protected by the Second Amendment and what actually is “the right to keep and bear” them.

    2. If SCOTUS carves out a 1st Amendment exception for hurtful speech on the internet, there won’t be anything left except the porn.

  19. Where the plaintiff shows the defendant acted with malice or reckless disregard of the damage they are doing, they can and should be held liable.

    How do we define “actual damages” in this situation?

    1. “I cried a bunch” as testimony should do the trick. Cause, I mean, no one has ever faked tears. Never.

      1. So reparations would be a bottle of water and a packet of salt?

    2. We could apply the standard libel and/or slander (depending on the method of transmission and audience) definitions.

  20. There is already a “captive audience” exception to the freedom of speech, which is consistent with the notion that freedom of speech must not imply the right to an audience. If I walk into a lodge in a public park where no events are scheduled and start speaking about marriage being stupid, I can’t be removed because of 1st amendment rights.

    If I walk in during a wedding reception at that lodge and make the same speech, I can be removed because it’s likely the guests do not want to hear such a speech, and you can’t expect someone to leave their family member’s (or their own) wedding reception to avoid unwanted speech.

    1. you can’t expect someone to leave the facilities they have contracted to use to avoid unwanted speech.

      FTFY

      1. In that case, the family of the dead soldier can be considered to have contracted with the cemetery, so protesters can be removed in that way.

        1. The WBC protesters weren’t inside the boundaries of the cemetery though.

  21. If there were a way to bump the WBC into the ditch without shitting on the First Amendment, would anyone here be against it?

    Oh, and BTW, hats off to the Patriot Guard Riders for showing up to so many of the Phelps protests.

    1. If there were a way to bump the WBC into the ditch without shitting on the First Amendment, would anyone here be against it?

      Counter-protests by decent congregations might be enough. Get enough people singing hymns and the asshats might actually start to feel bad about what they’re doing. Or get so pissed off they attack the counter protesters. Either way, Score.

      1. How long would they be doing these protests if they were ignored by all?

        1. Normally, I’d agree with the “you don’t have a right to not be offended”, but when that cunt from WBC said as much, it really bastardized the whole concept.

          But it’s kinda hard for everyone to ignore these fuckers… even if the press doesn’t show up, the people at the funerals won’t be able to ignore them.

          1. Well, if the people at the funeral are that concerned about the “thoughts” of these lackwits then they have no one to blame but themselves. Whatever vile idiocy they spew doesn’t change reality one iota.

            1. So, do nothing then?

              1. Well, I guess you could complain about it to your friends and family if you wanted to but, yes, do nothing regarding WBC. Don’t look at them. Don’t wave at them. Don’t talk to them. Above all, don’t do anything to get the media involved. Don’t dignify their idiocy with any kind of response whatsoever. Don’t feed the real life troll.

            2. Do you have children? If my son was killed and this group protested, there is no way in hell I could ignore them. I’d take a baseball bat to them and gleefully serve jail time for the damage I would inflict.

              1. Exactly, symbol-person.

        2. exactly.
          You know, decades ago it became unfashionable to go to freak shows. Cable TV has replaced the physical freaks with intellectual and emotionale freaks. When will we learn that ridiculing and laughing at them reflects more on us than them.
          Phelps is a sad, sad human. Paying attention to him prevents him from moving on.

  22. What happens if I go to somebody’s funeral and say, “I always hated that guy. What an asshole.”?

    Will the bereaved mother’s anguish be converted to a dollar amount?

    1. What happens if I go to somebody’s funeral and say, “I always hated that guy. What an asshole.”?

      This is why I have specified that there be no service.

      1. I’m leaving everyone who shows up to the wake a six-pack in my will. It might cut down on those sort of comments.

        Maybe.

        1. My wife has been told to secretly feed me to my enemies in hopes that they choke.

          1. You need to watch fewer Peter Greenaway movies.

            1. You get served the cock. Bring your appetite. And a shirt you’d like to choke to death in. I know how stylish you are.

              1. Can you actually choke on a cocktail weenie?

              2. Sugar, no one is going to choke on something you need tweezers to grab hold of.

                1. It’s thick. Like a soup can.

                  1. It’s a choad? Gross.

        2. Sweet. Can I get some jagermeister too?

          1. I was really hoping to keep the puking to a minimum, so I wasn’t planning on having any Jager.

        3. I’m leaving everyone who shows up to the wake a six-pack in my will. It might cut down on those sort of comments.

          Maybe if you specify that it is good beer, and make the gift contigent upon people being semi-nice to you.

          Otherwise, you’re gonna have a bunch of cheap bastards show up at your funeral just for the beer.

      2. I say go all out and have a Viking funeral.

        1. I was talking to someone the other day and decided then I want to be cremated, but in some silly oven all neat and tidy with a tasteful urn.

          I want a funeral pyre and a damn big one at that. And an open bar.

          1. but *not* in some silly oven…

            1. Longboats. Dirges. Thrall women. Fire. How can you beat that?

              1. Open bar. Didn’t I say that?

                Once you go Viking, you get all the maritime stuff involved. I don’t want the Coast Guard shooting up my longboat just at the pinnacle of the fire.

                1. You should read the page I linked to–there is mention of intoxicants, sex, ritual sacrifice, and wailing.

                  1. Too fussy for my tastes, though you almost had me at “thrall sex.” Is there a no wailing option?

                    IMO, No funeral should be any more complicated than a good kegger, which with a decent pyre is win-win. No need for the extra bonfire.

                    1. A kegger? What’s so memorable about that? You need an epic send-off, something people will be talking about for years.

                      Besides, your friends will appreciate the thrall women.

                    2. Don’t worry, you’re invited. Hell, you can be one of the ceremonial drunken gasoline pourers.

                      I’m going to auction off the right to blow the pyre explosives at the end.

      3. thats why I have a computerized voice recognition system that recognized not nice words, and ignites 600 pounds of TNT.
        Nah, just kidding. I just want to decompose – nobody could get close enough due to the stench.
        What!?!! local regulations prevent me from rotting?!? Damn gubermint…

  23. If all property was privately owned(including roads), there would be no problem. Westboro would just get turned down everywhere they tried to get permission to demonstrate.

    1. Yes, and so would everyone else with an unpopular viewpoint. You have destroyed free speech in order to save it.

      1. No. Freedom of speech doesn’t mean it’s anyone else’s duty to provide me with a forum to demonstrate in any way I want anywhere I want. Allowing one group to demonstrate from your property while denying another group is a form of speech. There are plenty of people who would allow Phelps to yell his crazy shit from their peoperty. It just won’t likely be right next to a funeral in progress.

  24. I’m not sure that you can stop the WBC in a way that wouldn’t be abused in the future. I’m just going back to hoping Phelps and everyone who agrees with him gets ass cancer and IBS.

    1. I’ve always assumed the solution to the WBC was to shoot first and rely on jury nullification.

      1. You might want to consult an organization with a long history of getting out of murder charges through jury nullification, for example the KKK.

        1. Well, there is an obvious track record showing this is a somewhat viable approach.

          1. I see it as a track record showing jury nullification being deleterious to the rule of law, but tomayto tomahto.

            1. Short of revolution, jury nullification is the last defense the popultion has against bad law.

              Of course it’s a little difficult to differentiate between revolution and terroism while it is happening. And it is quite common for bad people to use jury nullification to subvert good law.

            2. Better 1000 guilty Klansmen go free for murder than 1 also guilty WBC murderer go to jail.

              To horribly paraphrase.

  25. Is there such a thing as an actual WBC congregation, or is it just the inbred cretins of Clan Phelps, hanging out on a ratty old flea-infested couch on his front porch?

    1. Sort of. Most of the congregation are family members, but there are some outsiders. Apparently they own an entire city block in Topeka where they hold services.

  26. Normally, I hate Christ-fags, but I like these WBC folks.

    1. Too wordy. try…

      …I hate…fags,…I like these WBC folks.

    2. Ah, further confirmation of what a contemptible shitpile shrike is.

      1. As if we needed any.

  27. Surely there are enough folks angry about these cretins that 24 hour survelliance could be placed on every WBC member. Every time they try to buy groceries, pump gas, go to Walmart, etc. someone would alert the store owner to the presence of these assholes and ask that they be denied service. Say you’ll serve them and your gas station, etc. will go up on a website to be boycotted by everyone who thinks funeral protestors are worthy of shunning. If these creeps can be self-sustaining, that’s fine, but I think if the larger community knew whom they were dealing with, the whole WBC crap would collapse.

  28. If the assholes were on private property (such as a cemetery) then the first amendment does not apply. If they were harassing people even on public property, then the authorities should remove them.

    1. Actually I think the property owner should dispense savage beatings upon the tresspassers, starting with the women.

  29. I’m not against IIED laws. Let’s say an angry neighbor comes to your house and, knowing you are watching through the window, shoots your dog in front of you. Should you be able to only sue him for tresspass or destruction of your property?

    1. I think the logical Ayn Rand libertarian answer here is, “yes” but the fact that you don’t is ultimately just illustrative of our political differences, no?

    2. Your trolling on this board has caused me severe emotional distress. See you in court.

    3. Yes, obviously, even to this fervently anti-objectivist libertarian.

    4. In that case, you could possibly claim “denial of companionship” or something quantifiable. The dog is actually dead. If the dog was not dead, the dog would be providing you with some positive good.

      IIED says that you should be able to get damages even if I just say, “Man, I wish your dog was dead,” even though that’s unquestionably true speech, makes no threat, etc.

      1. If the dog was not dead, the dog would be providing you with some positive good.

        That’s debatable.

        1. Look, man, just because your dog sucks is no reason to take it out on the rest of us.

    5. Pet hate crime? Are pets a protected class?

      1. Depends on gender and coat color.

        1. And if the owner has insured them, such as show dogs or breeding pedigrees.
          There are dogs in Asia whose breeds are dying off due to unfashionability that are considered protected.

          1. “…breeds are dying off due to unfashionability that are considered protected.”

            In case they become retro? or what?

    6. I’m not against IIED laws. Let’s say an angry neighbor comes to your house and, knowing you are watching through the window, shoots your dog in front of you. Should you be able to only sue him for tresspass or destruction of your property?

      Yes. The dollar amount of compensation should be pretty high for such an egregious act. And you should be also be awarded the right to go shoot his dog in front of him.

      Next question?

      1. To clarify: the dollar amount of compensation should be worth what the dog was worth to YOU, not the fair market value of a similar mutt.

        Now, if that angry neighbor says he would like to shoot my dog, and then doesn’t do that, that shouldn’t be actionable.

  30. Let’s say an angry neighbor comes to your house and, knowing you are watching through the window, shoots your dog in front of you.

    Because his child is dying?

  31. I’ve always thought protests like these are a fucking dopey way to get a point across. The concept of public property is a privilege they are able to take advantage of because of statist infrastructure. What would they do if local streets reverted back to ownership of the adjacent property owners? Should public easements on private property be open to free speech, or would public street easements only protect people who are traveling?

    1. If all property were owned by private actors, this problem would be diminished. Ditto issues with regulating speech on school campuses.

      1. If all property were private it would be difficult to go anywhere.

        1. We could still agree on easements, pretty much as we do now.

          Of course, if we lived in Libertopia right now, we’d probably have teleportation, making your argument moot.

          1. I suppose government is preventing would-be inventors from inventing, somehow? Seems to me without the NSF we wouldn’t have much advanced technology or research.

            1. As a former NSF-funded research thrall, I’m laughing and laughing at that statement. You’d be surprised at how much research funding is eaten up by overhead–research foundations, government administration, etc.

              I’d say the one open issue is how really friggin’ huge “pure” research projects would happen in a system without government involvement in science. I imagine that, in the absence of government involvement, private coalitions (perhaps in connection with universities, though not necessarily) would pool resources and share in any findings that have economic value.

            2. Seems to me without the NSF we wouldn’t have much advanced technology or research.

              Yes, the personal computer you wrote that on was invented by a government employed scientist.

              Without NSF funding, research would be more focused on learning things that result in the creation of things people actually want. This would result in a much wealthier society, with fewer people dying due to not being able to afford health care or food or whatnot, especially in poorer countries that would have more opportunities to trade with us.

              Perhaps you think that is a bad thing.

        2. If all property were private it would be difficult to go anywhere.

          Are you saying that a totally free market wouldn’t exploit the profit opportunity by providing roadways that people would pay to drive on?

          Are you also positing that if some OTHER basic need, such as food, isn’t provided by the government, people would starve?

          1. Yeah, because that’s just what happens in shitholes with small, impotent governments.

        3. Property ownership is not that straightforward. If “the public” has been regularly traveling across private property for a reasonable period of time, and the property owner does nothing to restrict this, it becomes a public right of way easement. On private property. The property owner owns it, but can not prevent anyone from traveling on it. The only way the easement goes away is if the property owner can prove it hasn’t been exercised for a reasonable period of time. This is how roads worked in the United States before governments subsidized road improvements.

          1. Well that’s just swell. Gut private property rights to justify all property being private.

            1. If you’re not living on a piece of land, and you’re not mixing your labor with it, do you really own it? (leaving aside titles and property taxes that say you do)

              And if you want to prevent an easement from forming on your property, you simple exercise your ownership rights by prohibiting people from traveling across it. If you don’t want to be a dick, all you have to do is stop one person every now and then, which shows that you are the one who decides who may cross your property and when.

      2. Endorsement, IMO, is a sort of forgotten element of free speech. Providing property for a cause or movement you like is a form of speech. Public property forces me to endorse and finance speech that I wouldn’t without compulsion. I’d rather be forced to pay for medical procedures that people can’t afford than be forced to pay for SEIU to stand in the streets and block me from getting to work because they “need” to agitate against my freedom.

  32. Don’t get me wrong; on the whole I think allowing the plaintiffs to win here sets us off down an expensive and slippery slope.

    I just think there are much better arguments to made for their side than I have heard so far.

    And I am persistently annoyed by the idea that freedom of speech means freedom from responsibility for speech.

    Prior restraint is one thing. Being held responsible for the harm caused by your speech is another. I’m pretty sure that IIED should not be recognized as a claim for “mere” speech, but lets at least try to get the context and stakes right in discussing it.

    1. Those people claimed that the Snyders raised their son for the Devil and Hell.

      A reasonable person can conclude that this inflicted emotional distress, and that the Phelps bunch had reason to believe that it would.

      1. Really? I’d laugh at Phelps if he tried that with me.

        He’d have to try a fucklot harder than that.

        1. I agree. What caused the emotional distress was the roadside bomb or bullet that ended his life. They should sue that guy for IIED, not these asshats from WBC.

  33. Regardless of the outcome of this case I sincerley hope someone silences these WBC assholes permanently. Call it a public service. Is it a crime to publicly hope for the death of assholes?

    1. Probably not unless the asshole in question is the President.

      1. We know it’s not a crime for the president to openly call for the death of assholes, so I guess hoping for it would be ok for us simple citizens.

        I believe Holder reiterated it yesterday: https://reason.com/blog/2010/10…..harsanyi-o

  34. IIRC, The Snyders didn’t actually see or hear Phelps and his clown club during the actual funeral, that the rub came from the personalized attacks WBC made against the family and their deceased son in other venues, primarily on the internet.

    Phelps has spent the vast majority of his life dancing along the thin line of insanity that erupts into full bloom any time an issue in front of more than a single American is present involves the terms ‘speech’ and ‘religion’ – with Phelps blending the two masterfully into a legal blunt object, which he swings with abandon, and, in the past, for profit.

    I agree with Kinnath in this instance, that it isn’t a 1A issue, and dragging the 1A argument into it merely clouds the specifics of the case (which is what Phelps & his ijits count on). No one stopped WBC from making their speech, from expression of their views. IMO, this is a rights extend to the end of another’s nose situation. And here, Phelpsians overstepped that line by personalizing the attack specifically at the Snyders – as such, the Snyders should have legal recourse to address this infraction, which they were doing through the legal system, such as it is. As such, all the principled wailing (to the point that grieving parents should be advised to basically burp and get over it) is an unnecessary and tangential red herring.

    It’s amazing that in a country of 300 million+, with hundreds of law schools, and millions of practicing attorneys, that not a single one of them can come up with a way to outfox Fred Phelps and rub his nose in the shit that he so gleefully stirs up.

    People wail about this becoming an ‘exception’ – and thus an entre into the no other variables slippery greased slope straight into pineapple up the ass hell argument – however, no exception is necessary if one considers this divorced from the 1A red herring the Phelps’ employ with such effect. It does rely upon a modicum of faith in the jury system (yes, yes, come ye with your examples of how the system is broken, can’t be trusted, had a bad outcome, etc etc) to allow 12 citizens to evaluate the merits of an IIED claim. If such a jury can see past the 1A subterfuge and get to the heart of the issue, what the fuck is everyone else’s problem here?

  35. Hard case.

    Bad law.

    Ahhhhh, shiiiit!

  36. I haven’t read the briefs or anything, but did anyone consider whether WBC’s speech constitutes “fighting words” and is therefore not 1A protected? I know there’s a raft of exceptions to the Chaplinsky case, but could this be a legitimate extension of it?

  37. What part of “congress shall make NO LAW prohibiting/abriding…” don’t they understand?

    1. *abridging

      1. He can say what he likes.

        Where he likes.

        When he likes.

        Pick 2.

  38. I think Phelps has the right to say what he wants on public land near a cemetary.

    I’m not offended if the gubment doesn’t not allow him to say these things before/during/after an actual funeral. So long as such restrictions are content-neutral, I think they typically pass constitutional muster. After all, these funerals are private events, not public.

    I *might* have a different opinion if it were a state funeral, paid with state funds. But these aren’t, are they?

    I also think he should be allowed to say whatever hateful things he likes on his own website.

    It would also be a damn shame if a hacker fubared it.

  39. “this is a case about exploiting a private family’s grief. Why should the First Amendment tolerate that?”…

    The same reason the first amendment tolerates the NEA giving more phat cash to Democrats than pretty much anything else combined.

  40. “maximum publicity.” Snyder, he said, sought only to bury his son, not to make any kind of statement. The Chief Justice was openly skeptical of the small church’s claim, made by its lawyer, that “it is not an issue of seeking maximum publicity; it was using a public platform to bring a public message.”

    Excellent, so every time an incumbent gets on my tv to ‘publicise some cause’ his only purpose is to achieve ‘maximum publicity’ and his speech should be barred. I think I’m liking this funeral exception.

  41. Phelps ultimately hurts his own cause. His antics disgust people and has probably nudged many to rethink their own stance against gay marriage.

    Of course, that is assuming his cause is more than just being an attention whore.

  42. Have you heard the WBC members singing to Ozzie’s “Crazy Train” with their own invented lyrics? These guys are goofy….

  43. Supreme court decision and family distress aside, there’s a very cool irony in the Bikers’ anti-Westboro protests, even blocking entrance to cemeteries.

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