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View Diary: U.S. Supreme Court protects Westboro's right to obnoxious speech (213 comments)

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  •  Well, let me push back a bit on this one (6+ / 0-)

    I think I'd come down the same way as the Court because the contrary rule of law would surely be misused, but this is by no means a slam dunk.

    The claim here is Intentional Infliction of Emotional Distress.  The First Amendment (paraphrasing) says that Congress (and via the 14th Amendment, the states, and by virtue of that, localities) shall make no law restricting freedom of speech.  But IIED isn't a law respecting free speech at all!  It's a private common law tort that can arise from speech or many other things.

    With some First Amendment exercises -- such as the right to publish free of prior restraint -- the rule is that you can do it, but you have to accept the consequences.  Yes, this is a public affair, etc.  But why say that those who (let's assume) traumatize a young child like this can not only exercise free speech rights, but also avoid any consequences for what they've done?  Why not leave the question of whether there was actual trauma here -- and whether it was intentionally directed at the decedent's child -- to a jury?

    Beyond that, if time/place/manner restrictions are OK, why not force them to be so far away that the loved ones of the deceased would not hear them?  Or to you think that this opinion undermines T/P/M restrictions as well?

    Just helping out by pushing back, Adam....  ;7)

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    by Seneca Doane on Wed Mar 02, 2011 at 10:00:20 AM PST

    [ Parent ]

    •  The key is that if you (1+ / 0-)
      Recommended by:

      say "you can say whatever you want" but also say "if someone hears you and is offended you'll owe them $5 million" you've completely gutted the "say whatever you want" part.

      The parents of the solider did not hear the protests or see the language on the signs until the evening news after the funeral.  Where do we draw a line?  If we have free speach, we have free speach.

      One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!)

      by AUBoy2007 on Wed Mar 02, 2011 at 10:06:28 AM PST

      [ Parent ]

      •  That seems to be an important point to me (0+ / 0-)

        ...even if it isn't the crux of the legal argument.

        The actual funeral ceremony itself apparently wasn't disrupted at all, and it was only after-the-fact news coverage that prompted the legal action.

        There are two kinds of people in this world: Those who fit into one of two mutually exclusive categories, and those who don't.

        by zhimbo on Wed Mar 02, 2011 at 10:22:21 AM PST

        [ Parent ]

      •  Are you familiar with the tort of IIED? (3+ / 0-)
        Recommended by:
        Adam B, p gorden lippy, Code Monkey

        The law has already figured out that you don't get $5 million just for being offended.  There are reasonable requirements for being able to show that the targeting was intentional, the offense was grave, and the damages are real.  I'm not sure why they ought not be allowed to operate here.

        If the parents only saw the protests until they saw the news, then they could have been protesting from Australia and so it clearly wouldn't count.

        Where do we draw the line?  Why not use case law as a guide to that?

        Unplug the Koch machine! It's swallowing people's money!

        by Seneca Doane on Wed Mar 02, 2011 at 10:31:11 AM PST

        [ Parent ]

        •  And that's what the record reflects (4+ / 0-)
          Recommended by:
          AUBoy2007, SoCalSal, Loge, Code Monkey
          That plot was approximately 1,000 feet from the church where the funeral was held. Several buildings separated the picket site from the church. Id ., at 3758. The Westboro picketers displayed their signs for about 30 minutes before the funeral began and sang hymns and recited Bible verses. None of the picketers entered church property or went to the cemetery. They did not yell or use profanity, and there was no violence associated with the picketing. Id ., at 2168, 2371, 2286, 2293.

               The funeral procession passed within 200 to 300 feet of the picket site. Although Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event.

          •  Really? Wow. (0+ / 0-)

            Okay, yeah, this isn't even close (in my armchair-lawyerly opinion).

            In a related matter, what's your take on the buffer zone laws? You think they'd pass the Supreme Court if it comes to them?

            Formerly known as Jyrinx.

            “If I can't dance to it, it's not my revolution.” ― Emma Goldman

            by Code Monkey on Wed Mar 02, 2011 at 10:40:07 AM PST

            [ Parent ]

          •  So the cause of action fails (2+ / 0-)
            Recommended by:
            Annalize5, Loge

            because this instance doesn't meet the criteria for IIED, not because applying IIED principles to such protests is necessarily unconstitutional!

            Your diary gives the other impression, at least as I read it.

            I haven't time for more than a cursory glance at the opinion; what were the elements of an IIED tort in this jurisdiction, if it's easy for you to say?

            Unplug the Koch machine! It's swallowing people's money!

            by Seneca Doane on Wed Mar 02, 2011 at 10:41:09 AM PST

            [ Parent ]

            •  from the decision (1+ / 0-)
              Recommended by:
              Seneca Doane
              To succeed on a claim for intentional infliction of emotional distress in Maryland, a plaintiff must demonstrate that the defendant intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress. ...

              The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler , 485 U. S., at 55 (internal quotation marks omitted).

              •  That's a problem with the standard used (1+ / 0-)
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                Adam B

                in defining IIED.  Yes, "outrageousness" is a terribly malleable standard.  My analysis would be that -- given the bias towards respecting free speech -- one has to set the level of required "outrageousness" higher than otherwise.  That's a very different conclusion that saying "the First Amendment says you can't sue for IIED over political speech."

                I'm spending too much time away from work on this already, but I look forward to discussing this later, in the long tail of this diary.

                Unplug the Koch machine! It's swallowing people's money!

                by Seneca Doane on Wed Mar 02, 2011 at 11:01:59 AM PST

                [ Parent ]

                •  I read the opinion to mean that (0+ / 0-)

                  as long as the speech was "political," there wasn't, as a matter of law, "targeting" of the individual.  You can't "intentionally inflict" distress quite so broadly.

                  I generally dislike this tort, however, on the grounds of "sticks and stones may break my bones."  It's too easy to plead, too hard to prove, and, as this case shows, raises legitimate first amendment concerns.  A theme through the majority opinion is the jury ruled not on evidence but out of dislike of the speaker.  As such, it's hard to apply the rule of law to these types of cases, because the only time a claim is ever even going to get to the jury, i.e., surviving a motion to dismiss,  is when that speech is particularly "outrageous."  

                  "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

                  by Loge on Wed Mar 02, 2011 at 11:16:29 AM PST

                  [ Parent ]

            •  Except that is not what they ruled at all. (1+ / 0-)
              Recommended by:
              Adam B

              In fact, the WBC did not appeal the jury's ruling that there was IIED, they appealled the denial of the First Amendment defense.

              Your idea about allowing them to say it, yet making them accept the consequences, in this case a $5 million dollar judgment, goes to the heart of the First Amendment and avoiding actions that chill free speech.

              If free speech and the First Amendment say that you can speak your mind re: public issues, and that's what this is (as that's what the Supreme Court says), then there can be no state enforced "consequences."

              One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!)

              by AUBoy2007 on Wed Mar 02, 2011 at 10:46:21 AM PST

              [ Parent ]

              •  If an affirmative defense is upheld (1+ / 0-)
                Recommended by:

                then there is no IIED tort.  Lack of a defense is part of the tort.

                I use the same "accept the consequences" analysis as in prior restraint cases -- and the edifice of freedom has not toppled down (from that, anyway.)

                Unplug the Koch machine! It's swallowing people's money!

                by Seneca Doane on Wed Mar 02, 2011 at 10:58:46 AM PST

                [ Parent ]

            •  Yep. This drives me crazy too, Seneca. n/t (1+ / 0-)
              Recommended by:
              Seneca Doane
        •  What Adam B said. (0+ / 0-)

          They did use this case to draw a line.

          One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!)

          by AUBoy2007 on Wed Mar 02, 2011 at 10:37:32 AM PST

          [ Parent ]

    •  It's private, but not really. (2+ / 0-)

      Because it's a state-recognized tort, relying on government courts to enforce. Otherwise, you'd undermine (among other things) defamation law by skipping the question as to whether speech was (reasonably believed to be) true or legitimate parody and focusing instead on whether it was hurtful to the recipient.

      •  Any tort that requires courts to enforce (0+ / 0-)

        now becomes a public act?  That's pretty odd.  Lots of torts happen in private.  Start with torts of sexual harassment and continue on from there.

        I completely disagree with your last sentence.  All my analysis would say is: apply the test specified  by the tort.  Why would you skip the first prongs of a defamation analysis?

        I think that you're confusing a public act with a public figure.  A public act towards a private figure could and should be analyzed like any other instance of alleged IIED -- or defamation, if that's where it would fit.  IIED is all about the target.  A perfectly legal act can nevertheless be a tort if conducted in circumstances that satisfy the other requirements of IIED.  That need not undermine defamation law in the slightest.

        Unplug the Koch machine! It's swallowing people's money!

        by Seneca Doane on Wed Mar 02, 2011 at 10:37:26 AM PST

        [ Parent ]

        •  Enforcing tort law is state action (1+ / 0-)
          Recommended by:

          And sexually harassing speech is of low constitutional value compared to political speech.

          •  And in enforcing tort law in a defamation case (0+ / 0-)

            the involvement of the public courts does not mean that one thus applies the standards that would apply to a public figure, nu?

            That sexual harassing speech is of lower constitutional value is a difference in degree rather than in kind.  For example, that what would be IIED if done 10 feet from someone would not be IIED if seen on the news.  Case law already recognizes that, as I recall.  But it doesn't mean that one still can't use an IIED analysis.  Can you think of a case where an act would be deemed IIED but for the affirmative first amendment defense?  If that's the case here, it wasn't clear from the story.

            By the way: why isn't beating up disliked groups -- action being speech and all -- to express one's political animosity against them protected from prosecution as a private tort under your analysis?  Wouldn't it make sense to say "yes, you can raise that defense, but it doesn't matter because here are the elements for battery and you meet them, without question"?

            Unplug the Koch machine! It's swallowing people's money!

            by Seneca Doane on Wed Mar 02, 2011 at 10:55:47 AM PST

            [ Parent ]

            •  assault and battery does not equal speech (0+ / 0-)

              whatever expressive intent is behind them, the fact that they are illegal acts negates their expressive character. The same cannot be said for IIED. If the IIED at issue is protected speech, then an IIED claim cannot be brought.

              •  And whether the IIED is protected speech (0+ / 0-)

                should still depend upon its degree of outrageousness, right?  You see this as setting up an absolute bar.  I think it should be seen as setting up a heightened standard, similar to that for libel in Sullivan.

                By the way, whether what looks like assault and battery is illegal itself depends on affirmative defenses -- such as self-defense -- which are themselves quite malleable.  If I don't like Ceiling Cat worshippers and stand right in front of a Ceiling Catter less than three inches away, and they gently put a hand on my shoulder to try to get me to leave, then arguably they've "hit me first" and I can beat the crap out of them.  (By that I mean only that the case might have to go to a fact-finder.)  So if I raise the "political speech" defense when I'm sued by the Ceiling Catter, what then?  Is it an absolute defense against the tort?  Or does it just, at most, heighten the standard?

                Unplug the Koch machine! It's swallowing people's money!

                by Seneca Doane on Wed Mar 02, 2011 at 11:42:57 AM PST

                [ Parent ]

                •  I don't think "speech" could ever constitute IIED (0+ / 0-)

                  Sure, harassment and threats and intimidation can constitute that, but I would consider those things to not be speech. Yes, there's a line, but a peaceful protest such as here definitely does not cross that line. If I called your house and made threats to you over the phone that might be IIED, but my phone calls couldn't really be considered "speech" given that they were just threats. That's not the case here.

                  •  Warning: if you're faint of heart, don't read this (0+ / 0-)
                    I just killed your mother and plucked out her eyes.

                    I plucked out her eyes before I killed her.  It took me twenty minutes.  She was screaming.  I have a photo of my doing it.  I won't show it to you, but it's on the Internet.  I hacked your Facebook account to post it.  I haven't killed your sister yet, but I have her eyes here in my pocket.

                    (Oops, forgot to put that statement above in quotes.  It's not actually true!)

                    Now, all that above quote is, so far, is speech.  If credible, even if untrue, you're saying that it still could not, as a matter of law, satisfy the requirements for IIED?  I realize that it's a different kettle of fish than that of the Westboro case, being non-political, but your assertion that speech can't constitute IIED is more sweeping.

                    Unplug the Koch machine! It's swallowing people's money!

                    by Seneca Doane on Wed Mar 02, 2011 at 12:09:27 PM PST

                    [ Parent ]

                    •  not speech (0+ / 0-)

                      there are laws against harassment, threats and intimidation that are totally constitutional. Putting someone in imminent fear for themselves or family/friends is not speech. As with all things, is there a line? Of course. It probably would be protected speech to have an anti-abortion website with names and addresses of abortion doctors or supporters with bulls-eyes over them. But I think the peaceful protest of WBC is pretty clearly on on the speech side of the line, here.

                      •  That was written so as to exclude any threats (0+ / 0-)

                        My point was simply that speech can indeed ground an IIED claim.

                        Unplug the Koch machine! It's swallowing people's money!

                        by Seneca Doane on Wed Mar 02, 2011 at 01:37:53 PM PST

                        [ Parent ]

                        •  "I haven't killed your sister yet" (0+ / 0-)

                          that's not a threat? really?

                          Even if we take that part out, and it was just, "I killed your mother and took a picture of it"... that might not be a threat, but it's pretty clearly illegal harassment. That cannot be considered "speech"

                          •  Yeah, I should have left that part out, sorry (0+ / 0-)

                            As for the picture of your mother, how is that illegal harassment?  I'm not saying it's acceptable, but I'm not even sure what the relevant state law would be there.

                            Anyway, I don't recall that harassment is -- like obscenity, child porn, and libel -- excluded from being deemed "speech."  Exclusions from "speech" are pretty rare.

                            Unplug the Koch machine! It's swallowing people's money!

                            by Seneca Doane on Wed Mar 02, 2011 at 01:44:53 PM PST

                            [ Parent ]

              •  Psycholgical injuries can hurt worse (1+ / 0-)
                Recommended by:

                Look at recent post-bullying suicides and tell me those unfortunate young people were better off than someone bruised in a fist fight. This family suffered real and significant psychological injury. The Phelps family showed callous disregard for the harm they caused. All this case does is take away a lawful means of redress and invites more outrageous behavior during the private funeral services of our fallen soldiers.

                The tea is not strong in the West.

                by Stumptown Dave on Wed Mar 02, 2011 at 11:54:03 AM PST

                [ Parent ]

                •  bullying is not protected speech (0+ / 0-)

                  it would be considered harassment or intimidation, or assault (if it's a credible threat of immediate violence).

                  As bad as it is, a protest is not the same as bullying.

                  •  I don't agree with your distinction (0+ / 0-)

                    Lots of creative bullies could weave protected speech into their bullying. The Phelps family and Westboro are themselves bullies. I reject the majority opinion in this case. first time I find myself agreeing with Alito. Glad to see he is able to see the real harm inflicted on a private family at an event they should be able to have peace and respect, instead of a fucking crazy attention-seeking circus.

                    The tea is not strong in the West.

                    by Stumptown Dave on Wed Mar 02, 2011 at 12:18:01 PM PST

                    [ Parent ]

                    •  was Mein Kampf bullying? (0+ / 0-)

                      Unfortunately, I think adults have an obligation to not be bullied by speech they don't like. I know it sucks, but it's the cost of living in a free society.

                      •  A book is = to yelling during a funeral? (0+ / 0-)

                        The Westboro clowns weave protected and unprotected speech together during private funerals for people they have never met. It is outrageous, and if you lack the ability to see how it is different from the first amendment protection for a written work, well I have to wonder if you have ever had a close relative die and if you can empathize with the extreme emotional pain of bullies yelling disrespectful lies about your loved one from across the street? You seem to leave no room in your analysis for the tort of outrage. I guess we'll disagree on this one, but in no way am I taking your bait that my defense of the 1-8 dissent in this case puts me in same camp with book burners. That is a flat out distortion.

                        The tea is not strong in the West.

                        by Stumptown Dave on Thu Mar 03, 2011 at 03:29:16 AM PST

                        [ Parent ]

          •  Thank you, I have done so many times (1+ / 0-)
            Recommended by:

            In establishing the "actual malice" standard there, the Court didn't say that newspapers couldn't be found to commit libel against public figures, but changed the evidentiary burden.

            This case might be likened to establishing an "actual outrageousness" standard, which specifies a higher evidentiary burden where political speech is required to determine whether it is "outrageous."  That's fine!  That's not what I'm seeing in the story, and maybe not in the opinion either.

            When Adam writes "And once the Court concluded that this was speech on a matter of public concern, its conclusion became obvious," my response is: no, it's not "obvious" -- it would still depend on the facts, but the burden on the plaintiff to show that the action is outrageous must be raised.

            If that's not what the court said, it's what it should have said.

            Must stop blogging for now....

            Unplug the Koch machine! It's swallowing people's money!

            by Seneca Doane on Wed Mar 02, 2011 at 11:10:15 AM PST

            [ Parent ]

            •  you misunderstood the citation (1+ / 0-)
              Recommended by:
              Seneca Doane

              I was citing solely for the proposition that court enforcement of a tort verdict is unconstitutional government infringement on speech. I had no intent to say anything about the various standards at issue in that case.

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