Wednesday, March 31, 2010

If You Thought Things Couldn't Get Crazier... probably ought to read this story: Dead Marine's Father Ordered to Pay Protester's Legal Costs.

Yes, my friends, in one of the most incredible and incomprehensible legal decisions since the Supreme Court's body blow to the electoral process in Citizens United v. Federal Election Commission, Mr Albert Snyder has been ordered by the 4th Circuit Court of Appeals to pay more than $16,000 to the Westboro Baptist Church for legal costs incurred when the Snyder family sued the church in 2007 for privacy invasion, intentional infliction of emotional distress and civil conspiracy as a result of its demonstration at the funeral of Mr Snyder's son Matthew, who was killed in Iraq in 2006. Westboro Baptist is, of course, the alleged church which is notorious for its demonstrations at the funerals of soldiers killed in the line of claims these deaths are God's punishment to the United States for "the sin of homosexuality."

Now, I am a strong believer in freedom of speech, but I am also a strong believer in courtesy and compassion. By grossly interfering with the grief of the families of dead soldiers, the members of this church show neither. Their rigidly moralistic beliefs are monstrously offensive and deserve condemnation by all decent people.

The larger constitutional question is, of course, whether there are limits on the practice of free speech. Is all public expression, no matter how loathsome, protected under the law? What guidelines can be established that cannot later be twisted to forbid any unpleasant or unpopular expression? The Supreme Court has agreed to hear the case, but - given its ruling in the Citizens United case - I don't look for a rational decision.

In the meantime, I think we've finally found a "religious" organization that can match the worst of radical Islamic beliefs. The only upside is that the foul displays by Westboro Baptist don't encourage murder in the name of an imagined God.

Thank heaven for small favors.

Have a good day. More thoughts tomorrow.



Bandit said...


The Mistress of the Dark said...

I shake my head at this..

Anonymous said...

Actually, I believe the 4th Circuit has done the citizens of the USA two favors. Had the 4th Circuit affirmed the father's rigth to privacy and non-disturbance, the decision would apply only within the 4th Circuit. Thus Phelps and his phollowers (thrown in just for the linguist!) could harass families everywhere except in the 4th circuit until another family sued successfully. If the Supremes rule for Federal Election Commission, the case law will apply nationwide. The case gives the Supreme Court the opportunity to reverse Brandenburg v. Ohio, which reversed Schenk v. United States, which declared the 1st Amendment does not apply to dangerous speech, the prime example being crying "Fire!) in a crowded theater. You and I obviously consider Phelps BEHAVIOR, which is not speech, to not be constitutionally protected. Brandenburg v. Ohio makes it much harder to restrain similar speech and actions. To rule in favor of the family, which I think it will, the Supremes will have to also delegitimize Brandenburg V. Ohio. Trust me, that would be a good think for not only rational discourse in the USA (which is in desperately short supply at the moment) and our first amendment rights. Unlimited rights without responsibility lead to the collapse of society. At some point ordinary citizens must draw the line, and the majesty of the law must back them up. Phelps is a perfect example, and I hope the Supreme Court understands its meta meaning. So hold your anger at the 4th Circuit: it may have done us all a favor.

Eminence Grise

Leslie David said...

These people are demented. I think it's a terrible decision. I believe in free speech, but this transcends human decency which seems to be in really short supply these days.

Edwin Frownfelter said...

Let me be the devil's advocate (and in the case of Phelps that's pretty close to the truth). Of course Phelps and his brood are vile and their speech is offensive beyond description. However, freedom of speech does not apply only to inoffensive speech; in fact, it is only offensive speech that needs protection, as no one would attack it if they were not offended. As I like to say, you don't need the First Amendment to protect your right to say "Have a nice day."

Anyway, I have read the Fourth Circuit decision, and painful as it is to say, the Fourth Circuit got it exactly right. The justly aggrieved Mr. Snyder brought his lawsuit on the ground that he was entitled to damages for intentional infliction of emotional distress (and some other assorted torts) on the ground that the Phelps clan's speech (which he did not hear directly, as they had obeyed the requirement of the law that they remain at least 1000 feet away from the service) was so offensive it inflicted emotional distress on him. Consider this, people: do you want to recognize a principle that you can be sued for damages if your speech is outrageous enough and offends someone enough? I don't buy "I'm all for free speech, but . . ." If you are for free speech, you have to accept that people are going to use that freedom to say outrageous things, and people are going to be mightily offended by them. Does that mean anyone who is justly offended by speech should be allowed to sue the speaker for damages, even someone (such as Mr. Snyder) who only heard the words on TV? There are strict guidelines for the circumstances under which the requirements for IIMD can be met. The Fourth Circuit examined them very carefully and found that, offensive as the Phelpsians may be, they did not apply in this case. Read the decision before you criticize it. The Fourth Circuit did not make it lightly. Mr Snyder is a good man who (or whose counsel) unfortunately chose a very bad legal theory to get seek a result with which we could all feel sympathy.

Now, as to the matter of the court costs. Snyder is not, as some reports have stated or implied, being ordered to pay the Phelpses' attorney fees. The award against him is entirely based on the cost of transcripts and other documents they had to get, at 50 cents per page. While I think the court made the right decision on the free speech issue, I am not sure it was clearcut enough that the losing plaintiff should be required to pay the costs. However, I note that "loser pays" is an often lauded component of many "tort reform" packages endorsed by the very people who decry this decision. Folks, this is what "loser pays" looks like -- a mild version of it, as Snyder was not ordered to pay the Phelpses' attorney fees, as some "tort reform" advocates would require. Think about it next time someone tells you we need that for "tort reform" of this nature.

Bilbo said...

Eminence and Edwin - thanks for the great and thought-provoking comments. Edwin, you are spot-on in your point that it is only offensive speech that needs protection. The power to decide what's offensive is a dangerous one, which is one reason why I am so much against religious rule. And your drawing the contrast between the issue of protection of speech and imposition of costs in this case is an interesting one I hadn't considered. While I did read the decision, I didn't look at it in the same way you did. Thanks for making me rethink the issue. I still think the "Phelpsian" crowd is despicable, but protecting its rights also protects ours.