I’m a First Amendment purist. I appreciate the late Justice Hugo Black’s reminder that “Congress shall pass no law means Congress shall pass NO LAW. It does not mean Congress shall pass no law unless Congress and the Supreme Court decide that, on balance, the government’s interest in passing the law is greater than the public’s interest in not having the law passed.”
This is one reason I was dubious about Elena Kagan’s likely role on the court. She did, as solicitor general, assert that whether the First Amendment applies depends on weighing the value of the speech in question. Chief Justice Roberts eloquently shot that argument down – there is no justice who doesn’t have his or her uses and his or her good days.
I also despise Fred Phelps, the pseudo-Baptist pseudo-minister whose entire church (mostly his extended family) pickets the funerals of veterans. (He says they died for a country that tolerates homosexuality). I would like to see the lawsuit filed against Phelps’s Westboro Baptist Church by Albert Snyder, the father of one such veteran, succeed – without doing violence to the First Amendment of course. Generally, I think the better way to deal with Phelps & Friends is via web sites like www.godhatesfigs.com and www.godhatesshrimp.com. The latter is my favorite. Laugh at the poor bastard, don’t take him seriously.
But, its hard to laugh at someone who shows up at your son’s funeral, with signs in the hands of your cute little twelve year old grand-daughter reading THANK GOD FOR DEAD SOLDIERS. And therein lies a valid way to distinguish what Phelps is doing from protected speech.
There is no question that, in general, Phelps and his rag-tag band of disciples have the right to display their intellectual and spiritual wares in the public square. But, when they target an INDIVIDUAL funeral, they are not simply advocating a matter of public (or divine) policy. They are intentionally inflicting emotional distress upon a targetted family. That is not a criminal offense, but it is subject to a civil action.
That civil action is what the 4th Circuit Court of Appeals denied to the Snyders. It would require no new law to allow the jury verdict against Phelps to stand. There is, for example, the precedent of Guinn v. Church of Christ of Collinsville, 775 P.2d 766 (Okla.1989).
Church leaders threatened to broadcast to the congregation the plaintiff’s sexual relations outside of marriage unless she repented. Guinn withdrew her membership in the church and hired an attorney who advised the church not to mention her name in church. They did anyway. Guinn brought suit for invasion of privacy and intentional infliction of emotional distress. The Oklahoma Supreme Court rejected the church’s First Amendment defense, finding that Guinn had effectively withdrawn from the church and was no longer subject to internal church discipline.
The important question is not how many meters from the church door Phelps was standing, nor whether he stood in direct line of sight. The important fact is that he deliberately targeted that particular funeral. If he had merely marched around downtown somewhere in the vicinity, and made a general statement about dead soldiers, he would probably be within his rights.
I hope the Supreme Court sees it that way – neither setting a precedent that would substantially restrict First Amendment law, nor deny the grieving family some form of redress for what happened to them. It is a delicate balance, but not an impossible one.
Siarlys you do a better job of keeping me honest on this board than anyone else. I appreciate that.
But I look at Phelps and friends activities the same way I look at burning the American flag. Allowing it makes a much bigger statement about the greatness of our system than banning it does.
I personally believe the police should find a nice Starbucks in another town and have a safety meeting when Phelps and freaking friends decide to drag out their stuff. A couple of bonding moments with those they’re offending might make them less likely to be offensive in the future.
There are some unintended consequences of the Phelps and friends show. They force us to look at what they’re saying and what they’re standing for. We need that as citizens, as human beings.
I think you are hinting, in a subtle manner John E would approve of, that if someone happened to kick Phelps’s ass while the police are in the next town, nobody would shed any tears. That has its pitfalls, but it is a fact of life if you really push someone’s buttons. After all, the underground railroad was once considered to be vigilante activity. In fact, some of its components were known as Vigilance Committees.
There is an organization called the Patriot Guard Riders made up of motorcycle riders who were US military veterans who have made it their cause to counter-protest Phelps and company when they show up at military funerals.
From their FAQ at http://www.patriotguard.org/
As for Phelps, I’m surprised no one has firebombed their compound yet.
I know they are well-meaning. However, wouldn’t their presence turn this into a bigger circus?
Personally, I’m half-convinced that the Phelps clan is really a very clever bit of pro-gay agitprop played out as long as it can go undetected. There are very few people in this country who have done more to advance the pro-gay agenda than Fred Phelps.
I’m a First Amendment fundamentalist myself, and I personally have zero problems with Westboro picketing wherever they like. As a gay man and a veteran I’d be highly amused to see them turn up at my funeral (if only I could actually be there to enjoy it that is).
The antidote to free speech is more free speech, so when the VFW or American Legion or bikers show up to drown them out, I rejoice to see the First Amendment working the way it should.
So I’m absolutely, positively against any criminal sanctions against the Phelps clan and want their freedom to display their idiocy to the world preserved.
I do have to admit being on the fence a bit when it comes to a civil action however. There’s nothing in the Constitution preventing one private party from suing another over speech (libel and slander are excellent examples of how civil cases legitimately “infringe” on your free speech). Nor is the government trying to censor Phelps; the case was brought by a private individual.
But on the other hand, I have two objections:
First, I am generally dubious of civil cases that allege merely “emotional distress.” Certainly, there is such a thing, but a demonstration, even at a funeral, won’t really give that much, especially in relation to losing your loved one in the first place.
Second, I have a big concern about people with deep pockets all of a sudden alleging “emotional distress” over any even remotely negative coverage or discussion of their actions. Will Steve Jobs become “emotionally distressed” if I write a blog post saying I think the iPad is a piece of crap? What about corporations? Now that we’ve further established their personhood, perhaps Blackwater will become “emotionally distressed” if I write about them being a lawless, unethical group of mercenaries, scarcely getting than the warlords they ostensibly protect against.
So I think we have to be careful not to open the door to allowing people with access to money for civil actions to freeze out free speech. Far, far better that we have wackos picketing at my funeral and annoying my friends and family.
There’s nothing in the Constitution preventing one private party from suing another over speech (libel and slander are excellent examples of how civil cases legitimately “infringe” on your free speech). Nor is the government trying to censor Phelps; the case was brought by a private individual.
While the 1A may be silent re. civil actions, it has long been deemed apply in such cases. See, e.g.,
http://ssrn.com/abstract=1626294
While civil actions aren’t the same as (say) content-based speech restrictions imposed via statute, they still harness the power of government to burden speech.
The constitutional permissibility of libel & slander suits is rooted not in the 1A’s silence re. torts, but rather in the fact that punishment of libel & slander was historically seen as a valid exception to the concept of free speech.
Particularly in light of the Sullivan case, when an avowed racist in the old Mississippi state government sued the New York Times, the dividing line has generally been whether the person alleging slander or emotional distress is a public figure. If the speech is fair comment on a public issue, then there is no civil case. If someone goes into the private life of a private individual, then there may be. E.g., a church outing a woman’s fornication is on a different plane from criticizing a product advertised for sale around the world, such as the iPad. This sort of got rehashed when Oprah Winfrey said some new study turned her off to ever wanting to eat another burger, and some meat producers sued her for devaluing their product. They lost.
Funerals? There is something that strikes me a little differently about funerals.
TBH, I haven’t really looked into Snyder v. Phelps, though I’ll be interested to see how SCOTUS eventually rules.
I strongly dislike the Phelpsians’ activities. If Snyder’s suit could be upheld in a carefully-circumscribed manner that didn’t pose slippery-slope dangers, I’d shed no tears.
Absent that…I think McArdle’s proposal that the media basically ignore the Phelpsians has a great deal of merit.
Agreed. Just ignore them. Making fun of them is almost as good.
Steve
Personally I like the option of making fun of them. They would provide great fodder for an SNL skit.
The best counter-protest to Phelps was when they picketed the San Diego Comic Con. I never felt more proud to be a comic book nerd in my whole life.
http://www.comicsalliance.com/2010/07/22/super-heroes-vs-the-westboro-baptist-church/
Excellent selection! Thanks Lance. That makes this entire post worth it.