November 01, 2007

Am I The Only One Troubled?

I may be about to make myself the most unpopular guy in the blogosphere with this post. I may even be accused of defending the indefensible. But I'm taken aback by the untoward celebration of a decision that imperils the free speech rights of Americans, even though the folks who lost this case are among the most despicable to slither from beneath a rock in the last several decades.

I'm talking, of course, about the nearly $11 million in damages a jury awarded to the father of a Marine killed in the war, against the Fred Phelps Klan for picketing the funeral with their usual array of disgusting signs and offensive chants, songs, and slogans.

A grieving father won a nearly $11 million verdict against a fundamentalist church that pickets military funerals out of a belief that the war in Iraq is a punishment for America's tolerance of homosexuality.

Albert Snyder sued the Kansas-based Westboro Baptist Church for unspecified damages after members demonstrated at the March 2006 funeral of his son, Marine Lance Cpl. Matthew Snyder, who was killed in Iraq.

The federal jury first awarded $2.9 million in compensatory damages. It returned in the afternoon with its decision to award $6 million in punitive damages for invasion of privacy and $2 million for causing emotional distress.

Snyder's attorney, Craig Trebilcock, had urged jurors to determine an amount "that says don't do this in Maryland again. Do not bring your circus of hate to Maryland again."

So let's be clear about the goal of this suit -- it was to punish speech conducted in a public place, speech that is fully protected by the Constitution, on the grounds that it is hurtful, offensive, and outrageous. That troubles me very deeply, and it is my profound hope that the decision is thrown out on appeal as incompatible with the First Amendment.

And what is particularly disturbing to me is that folks who are usually supportive of freedom of speech are celebrating this decision against these loons.

I already see the next suit -- filed by some pro-abortion woman against picketers in front of the local abortion clinic After all, doesn't she have the right to seek medical care unharassed, without her privacy being invaded and emotional damage intentionally inflicted? Or a couple of summers back when local Democrats picketed the home of SwiftVets' John O'Neill on his daughter's wedding day -- I could see a suit being filed to suppress that speech, which I found disturbing but recognize as constitutionally protected.

So you see, it isn't that I carry a brief for the Fred Phelps Klan and their cult -- I don't. It is just that I worry about the First Amendment implications of allowing civil damages for legal, constitutionally protected speech in a public place on these grounds. Imposing civil damages for hurt feelings threatens our essential liberties. It isn't Fred Phelps whose speech I want to see protected -- it is everyone else's.

A similar question is raised at The Liberty Papers.

UPDATE: For those who object to the time and place (a public street proximate to a funeral), let me ask this question. If instead of a soldier this had been the funeral of a KKK member, and instead of the Phelps Cult it had been the a local black church or the NAACP proclaiming that God Hates Racists, would you view the judgment rendered in this case acceptable or appropriate? If not, are you seeking to punish the method used or the message you despise?

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Comments on Am I The Only One Troubled?

I couldn't agree more. In fact I tried to say so over at STACLU, but Jay hasn't decided to approve the post. These are the comments I made late last night, which are being censored from their blog.



Everyone is so eager to pounce on someone who insults your fallen brothers, that you are willing to over look the facts of the case.

Fact one: Phelps may be insane - that has nothing to do with the liberty issues involved.
Fact two: There is no guarantee in America to not be insulted or to not have ones feeling hurt. (Ēemotional distressĒ please I thought this site was run by a bunch of soldier, not a bunch of feminist.)
Fact three: We have the right to express hate. In fact, let me express the fact that I hate the actions by the Phelps group.

But I also hate a bunch of sissified ninnies who defend a private cause at the sake of my personal liberties. This has all the makings of a perfect ACLU case on the Snyder side, but because of the emotional attachment you soldiers feel, you canít separate the two.

Sorry guys, I agree with most of what you do around here, and I disagree with Phelps. But your rejoicing over his lose can only be because of an emotional attachment to the war and your career. Because if you love liberty, then you know you cannot rejoice over oneís mans lose of liberty without mourning your own!

Oh and by the way, itís a big bunch of bunk to say that an $11 million dollar judgment isnít taking away a manís liberty.

|| Posted by PaulTN, November 1, 2007 07:57 AM ||

Before all you Free Speech enthusiasts get bent, you should keep in mind that firstly, this was a civil trial. Secondly, the findings had nothing to do with free speech as you would be so quick to defend. The case was based on Invasion of Privacy, Defamation and Emotional Distress. You see, the 1st Ammendment allows for free speech, however, it does not protect one from the consequences of what is said. Now, you may wish to argue for or against the findings that privacy was invaded, or defamation occurred, (carrying signs that say "God hates Fags" when the soldier in question was, in fact, straight), but the plaintiff, nor the court challenged anyone on freedom of speech.

|| Posted by Syd B., November 1, 2007 08:22 AM ||

You are correct. This was a civil suit, and therefore, the Constitution does not apply. It still adds fuel to a powerful movement, and at the end of the day, is a bad, bad, bad decision. See my post on the topic.

|| Posted by rightwingprof, November 1, 2007 08:54 AM ||

"Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Let me hit the important part here: "CONGRESS SHALL MAKE NO LAW ..."

Are you telling me that the grieving father who filed the lawsuit was actually Congress?

Was the Federal Government the plaintiff in this case?

Was the Federal Government involved in this case in any way -- other than as arbitrator between two private citizens?

If not, why are you bringing the First Amendment into this?

Anyone who complains that parts of the Constitution (the Interstate Commerce Clause, for instance)are being expanded into areas that don't concern it -- well, these folks should not be expanding any other part of the Constitution -- including the First Amendment -- into areas that don't concern it.

|| Posted by LawDog, November 1, 2007 10:42 AM ||

Right on SydB,rightwingprof,and Lawdog.
All the rest of you getting bent out shape,CHILL OUT.
Those protesters should have cooled their overwrought heels in jail for a protracted length of time.Better still,spend A LOT of time in a Funny Farm,as they are seriously mentally ill.
What a sad sad time for that grieving father.His freedom to mourn was seriously impacted by that flow of hate gushing out of those sick mouths.

|| Posted by Ellie, November 1, 2007 02:19 PM ||

I think the point to all of this legal action is not the erosion of your constitutional rights, but the way in which a reasonable person should express them. The funeral of a soldier is not the place, perhaps on the church website, they own the medium, they control the message. Klan Phelps is out there with the express goal to cause pain, pure and simple.

Would he have gone away if he was asked to? Hell no. If I shout "fire" (falsely)in a crowded stadium, is this my right to free speech? Or would a normal person realise that they are potentially putting a lot of lives in danger over what would be considered a prank?

Think about it before you cry about free speech.

|| Posted by Graham, November 1, 2007 02:58 PM ||

So what you are saying, Syd, is that someone may engage in Constitutionally protected speech about their religious beliefs on a public sidewalk, but that any private individual may then use the courts to punish them for the speech by claiming that the speech somehow inflicted emotional distress upon them, or that it invaded their private time. Such nonsense would render the right to freedom of speech null and void, because unpopular speech could then be suppressed via the civil courts imposing judgments (like this one) that essentially render such speech too personally perilous to engage in.

|| Posted by Rhymes With Right, November 1, 2007 03:05 PM ||


The Constitution does not apply in the civil courts of the United States? My, what a novel concept!

|| Posted by Rhymes With Right, November 1, 2007 03:06 PM ||


Because a cause of action for those torts is still taking place in courts set up by Congress under its Article III powers. Congress cannot authorize a court that will interfere with the legitimate exercise of a right under the Constitution.

Similarly, no reasonable reading of the Constitution or the last 100 years of civil liberties jurisprudence would legitimately allow any interpretation of the Constitution to permit a court to stop or punish constitutionally protected speech -- or permit the executive branch to issue an executive order to stop speech. The First Amendment as currently interpreted does not merely extend to restrictions upon Congress, but also upon the other two branches of government and the states (via the 14th Amendment).

|| Posted by Rhymes With Right, November 1, 2007 04:09 PM ||


Jail time? On what charge? Engaging in free speech on a public street?

And involuntary commitment is only permitted when an individual is found to be an imminent threat to the life or safety of themselves or others due to their mental illness. You couldn't prove that here in a million years. As disgusting as these folks are, they have no history of violence.

|| Posted by Rhymes With Right, November 1, 2007 04:12 PM ||


Gotta disagree with you here. A public street, even during a funeral, is a legitimate venue for speech. I may hate the speech in question, but it is not my place to deny them access to a public forum.

And let me point out that there is no comparison between this speech and yelling fire in a theater. Indeed, it was more akin to burning a flag, which is constitutionally protected. What you apparently want is a heckler's veto.

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