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

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  •  so it's ok for the court to undermine (0+ / 0-)

    state defamation laws by usurping the jury's role as fact-finder and reversing and rendering the opinions of the trial and appellate courts? Breyer has it right:

    "The Court affirms the decision of the Fourth Circuit with respect topetitioner’s claim of intrusion upon seclusion on a ground not addressedby the Fourth Circuit.  I would not reach out to decide that issue butwould instead leave it for the Fourth Circuit to decide on remand.  I would likewise allow the Fourth Circuit on remand to decide whether  the judgment on the claim of civil conspiracy can survive in light of the ultimate disposition of the IIED and intrusion upon seclusion claims."

    concurring opinion, FN17.

    "I'm all for pragmatism just as long as it's not just a slight pitstop on the road to hell." - TJ, 11.30.10

    by output on Wed Mar 02, 2011 at 10:53:41 AM PST

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    •  Yes, it is. (0+ / 0-)

      There's an established legal procedure to set aside jury verdicts when they are against the manifest weight of the evidence.  Courts, especially appeals courts, have an important role to play in protecting political minorities rights', as they did here.

      Synder testified he couldn't see the signs until news broadcasts.  Doesn't that show (a) he wasn't targed, specifically, and (b) the Westboro's speech was on a matter of public concern, even to get on the news in the first place?  

      "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 11:24:02 AM PST

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      •  this is not that kind of party, (0+ / 0-)
          Doesn't that show (a) he wasn't targed, specifically, and (b) the Westboro's speech was on a matter of public concern, even to get on the news in the first place?  

        as breyer correctly asserts.

        the appeal was not based on a sufficiency assessment. the problem is not weight of the evidence, but rather the framing of the issue. the IIED claim was based on more than just the physical picketing. the majority (perhaps correctly, depending on the permissible scope of their review)  declines to even consider the internet postings or tv pronouncements; much less hold forth on their permissibility under the first amendment.

        the effect is to strike down the state law IIED claim on factual grounds without examining all of the relevant facts. or the law, for that matter.

        "I'm all for pragmatism just as long as it's not just a slight pitstop on the road to hell." - TJ, 11.30.10

        by output on Wed Mar 02, 2011 at 11:45:30 AM PST

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        •  If you're going to take that line, (0+ / 0-)

          note that Breyer concurred, stating:

          Westboro’s means of communicating its views consisted of picketing in a place where picketing was lawful and in compliance with all police directions. The picketing could not be seen or heard from the funeral ceremony itself. And Snyder testified that he saw no more than the tops of the picketers’ signs as he drove to the funeral. To uphold the application of state law in these circumstances would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm.

          Anyway, he managed to muster a total of one vote for that position (two, if you include Alito).  It was at least partly a sufficiency issue, but Snyder waived that argument on appeal.  Once the Constitutionally-protected speech is knocked from the case, there was nothing left to support the jury verdict.  So the issues that were presented for appeal were somewhat narrow in both directions.

          "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 11:56:54 AM PST

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          •  fail. the majority opinion doesn't address (0+ / 0-)

            any sufficiency arguments. moreover, alito, in his dissent, asserts that no such argument was briefed.

            so i'll say it again: breyer would have preferred to remand the case. they did more than picketing and the jury that is charged with considering everything they did, is being usurped.

            "I'm all for pragmatism just as long as it's not just a slight pitstop on the road to hell." - TJ, 11.30.10

            by output on Wed Mar 02, 2011 at 12:33:42 PM PST

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            •  whatever else they did, (2+ / 0-)
              Recommended by:
              Adam B, output

              wasn't at issue on appeal.  the fact that Phelps waived the sufficiency argument on appeal was mentioned by the majority in footnote 2.  That commanded the support of one of the 4th Circuit Justices, so it's not a trivial point.

              Anyway, there's nothing procedurally improper about what the courts did here, and there's every reason to subject the jury verdict to tough scrutiny in a case pitting a sympathetic defendant against an unsympathetic defendant at the intersection of the 1st Amendment.  The end of Roman II in the majority opinion explicitly states that the jury instructions were legally incorrect because they were too subjective -- what is "outrageousness," anyway?  But remand is not warranted because, if anything, the district court should have granted summary judgment on the IIED claim as well as the others, which would, I suppose "usurp" the role of a jury, but not by any more than a JNOV.

              Breyer's concurrence also does not use the word "remand."

              "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 01:21:40 PM PST

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              •  i appreciate the correction. thx. i now see (0+ / 0-)

                that that footnote that i referenced was alito's.

                Anyway, there's nothing procedurally improper about what the courts did here, and there's every reason to subject the jury verdict to tough scrutiny in a case pitting a sympathetic defendant against an unsympathetic defendant at the intersection of the 1st Amendment.

                i never said that what they did was procedurally improper. in fact i question whether they had the authority and/or the duty to address, on their own ititiative, the constitutionality of all of the phelpses' behavior (not just the protests).

                the jury considered evidence, not only of the funeral protests, but of the tv appearance and the web postings. if neither of those activities was and if the IIED claim could have been proven without reference to the funeral protests, scotus improperly subsituted its judment for that of the jury.

                the bottom line is that the jury's findings were subjected to selective scrutiny that was, in the end, outcome determinative. as you correctly said in your first post, the standard for doing that is  - and should be - very tough to meet. in this case, insufficiency wasn't even invoked, much less proven, and yet it implicitly and conclusively determined the outcome of the case. hence my objection to the court's ruling.
                that said, i didn't read the 4th circuit or scotus briefs or the request for cert., so i'm open to the possibility that scotus's hands were tied, procedurally, because of bad lawyering on behalf of the snyders.

                "I'm all for pragmatism just as long as it's not just a slight pitstop on the road to hell." - TJ, 11.30.10

                by output on Wed Mar 02, 2011 at 02:00:23 PM PST

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