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

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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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