Today, the U.S. Court of Appeals for the 4th Circuit struck a blow for Free Speech in deciding that Fred Phelps, some members of his family, and the Westboro Baptist Church are not liable for $5 million in compensatory damages which had been awarded to the father of a Marine killed in Iraq when they picketed the Marine's funeral in 2006. Phelps was supported by Friend of the Court briefs from The Thomas Jefferson Foundation and the ACLU.
As disgusting as the displays by Phelps, et al. are, I find little or nothing in the Court opinon with which to disagree.
The opinion can be found here.
While I'd suggest you read the opinion, I'll try to give you the short version of the case here.
The Church had done its usual picketing, and had also published an "epic" on its "godhatesfags" website that claimed that the Marine's parents had "taught [him] to defy his creator," "raised him for the devil," and taught him that "God was a liar." [The epic had, unlike the church's picket signs, singled out and named the Marine and his parents - I decline to do so here.]
The father had brought defamation, privacy, and Intentional Infliction of Emotional Distress claims. The defamation claims were dismissed early on, but the other claims proceeded to trial. The defendants had objected to a particular jury instruction, specifically the part that read as follows:
You must balance the Defendants' expression of religious belief with another citizen's right to privacy and his or her right to be free from intentional, reckless, or extreme and outrageous conduct causing him or her severe emotional distress. As I have previously pointed out to you at the start of this case, you as the judges of the facts must determine whether the Defendants' actions were directed specifically at the [Plaintiff's] family.
The 4th Circuit found two flaws with that portion of the instruction. First, it held that it was error to have the jury impose some sort of "balance" upon the speech used by the Defendants at all, because the First Amendment is not a conditional right as it pertains to political and religious speech. The Court did not address any contention that there was some sort of a valid "time, place, and manner" restriction that would apply, although the trial court's instruction hinted at one. I suspect that is because there were no restrictions in place, and the Defendants likely took great care to keep themselves on public streets (as they appear to do when I've seen them on TV); public streets in commercially zoned areas are generally considered public fora, and not subject to such restrictions on speech.
Second, the Court found that the instruction improperly placed the task of determining whether the speech was directed at the Plaintiff, upon the jury. Longstanding precedent holds that the question is a question of law, and it is up to the Court to determine whether anyone could believe that the speech was directed at the Plaintiff.
As I said before, I can't disagree with that. Just as the Court observed, the sludge Fred Phelps and his clan regularly spout may be "distasteful and repugnant," but it is protected by the First Amendment. And, I believe that's the way it has to be. It's not the inoffensive speech or speakers that really need the protection. People like Fred Phelps help us to see whether we have the courage of our convictions, whether we can appreciate it or not.
I am a little troubled by one procedural aspect of the case. The Court notes twice that if it finds as a matter of law that the Defendants can prevail, a new trial is unnecessary (in other words, the Court is ending the case with its decision rather than "remanding" it to the trial court). It cites Milkovich v. Lorain Journal Co. as authority. I have a couple of problems with that contention.
First, the Milkovich authority is based on a "see" reference. "See" is a general sort of reference to the whole of the case; it means that specific point is implicit within the cited text. I've looked over page 17 of Milkovich, and while I can accept the 4th Circuit's contention that the Constitutional review must be de novo, I don't see anything in the case that would suggest that the reviewing court may simply substitute its judgment for that of the trial court. In fact, the Supreme Court in Milkovich remanded the case to the trial court.
Further, even if the Court may have the power to take jurisdiction away from the trial court, it is not obligated to do so. Were this a criminal case, where the Defendant was facing a loss of personal liberty rather than just property, I would be more inclined to accept such an unusual outcome, but jurisprudence, especially that as practiced by a conservative court like the 4th Circuit, generally favors restraint, not activism, especially in a civil case.
Finally, the Court based its finding of a First Amendment violation on the inadequacy of the jury instruction. To me, it would seem that if the Court is going to completely end the case, it should at least determine that no change to or replacement of the defective instruction could pass Constitutional muster. Had the Court done that, I would likely be persuaded, but it didn't even try. I think that in the absence of that analysis, the Court risks denying the Plaintiff his right to Due Process under the Fifth and Fourteenth Amendments. I see no benefit in trading one Constitutional violation for another simply for administrative convenience.
If I were looking for grounds to appeal, I think that's the position I would explore.
Personally, I do not see the good in denying the Plaintiff his day in court, nor the great harm in making Fred Phelps go through another trial (I accept that the burden may be minimal, since Fred's daughter is his lawyer, and he, as a disbarred lawyer is probably quite able to participate actively in the defense). But that's about the extent of my overall concern with this particular aspect of the case. The bigger point is the reaffirmation that the First Amendment protects all of us (except for anti-war protesters - we'll have to keep working for them).