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“There are more instances of the abridgement of the freedom of the people by the gradual and silent encroachment of those in power, than by violent and sudden usurpation.”     James Madison

October 31, 2007

More On The Funeral Protestors Saga

by Doug Mataconis

Much has been written about the Rev. Fred Phelps and his merry band of protesters who travel the country staging demonstrations outside the funeral services of American soldiers killed in Iraq expressing their apparent belief that the soldiers died because of America’s toleration of homosexuals.

Today, a Federal Jury in Maryland awarded $ 2.9 million in damages to the father of a fallen Marine in connection with a protest:

A federal jury in Baltimore awarded nearly $11 million in damages yesterday to the family of a Marine from Maryland whose funeral was disrupted by members of a Kansas-based fundamentalist church.

One of the defendants said the civil award was the first against the church, whose members have stirred anger across the nation by picketing at funerals for service members killed in Iraq and Afghanistan, often carrying placards bearing virulent anti-gay slogans. The church maintains that God is punishing the United States, killing and maiming troops, because the country tolerates homosexuality.

Fred Phelps, pastor of the Topeka-based Westboro Baptist Church, scoffed at the jury and the award.

“It was a bunch of silly heads passing judgment on God,” he said. “I don’t believe anyone in the courtroom knows what the First Amendment is. Religious views are expressly protected by the First Amendment. You can’t prosecute a preacher in civil law or in criminal law for what he preaches.”

Phelps said the church would appeal, and he predicted that a higher court would overturn the award “in five minutes.”

In the lawsuit, the family of Lance Cpl. Matthew A. Snyder argued that it had suffered invasion of privacy and infliction of emotional distress.

“The fact of the matter is, a funeral’s private,” said one of their attorneys, Sean Summers. “There was no public concern when [church members] showed up with a ‘God Hates You’ sign.”

No, but the protests didn’t occur on private property, they occurred on public property while the church members were expressing their protected, though entirely stupid and repugnant beliefs.

Technically, this is not a First Amendment issue at all, because it doesn’t involve an attempt by the state to censor speech or punish, in a criminal sense, the right of the church members to express their beliefs. There is something troubling, though, when civil causes of action as ephemeral and hard-to-define as “invasion of privacy” (notwithstanding the fact that the events in question took place on public property) and “intentional infliction of emotional distress” (notwithstanding the fact that the church does the same type of protest at every funeral, thus suggesting that there’s no evidence they intentionally targeted the father in this case) are used to punish someone for actions that are clearly Constitutionally protected.

It will be interesting to follow this case through the appellate courts, because a reversal would seem to be the most likely outcome.

In the meantime, if the jury thought that their verdict would deter these people from continuing their protests, they are clearly wrong about that:

Shirley Phelps-Roper said the verdict made her 50th birthday yesterday a happier one. She said the verdict would help the church, many of whose members are from the Phelps family, get its message out.

“We’re making new signs: ‘Thank God for $10.9 million.’ Listen to that amount. It’s so laughable,” she said. “It was all I could do not to laugh. You guys think you can change God?”

Like I said, I find these guys offensive and stupid, but that doesn’t mean they should be punished for being either.

Update: Greg at Rhymes With Right makes an excellent point about this verdict:

I already see the next suit — filed by some pro-abortion woman against picketers in front of the local abortion clinic After all, doesn’t she have the right to seek medical care unharassed, without her privacy being invaded and emotional damage intentionally inflicted? Or a couple of summers back when local Democrats picketed the home of SwiftVets’ John O’Neill on his daughter’s wedding day — I could see a suit being filed to suppress that speech, which I found disturbing but recognize as constitutionally protected.

Turning what I would submit is already a troublingly vague cause of action like Intentional Infliction of Emotional Distress, and tort law in general into a weapon to suppress politically or personally offensive speech is a dangerous road to go down.

And if you don’t think that cases like the one Greg posits could someday be filed, then you haven’t spent enough time talking to my fellow members of the legal profession.

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22 Comments

  1. “are used to punish someone for actions that are clearly Constitutionally protected”

    Tort law is not used to “punish” anyone. It’s used to compensate injured parties for wrongful harms. If you want to argue for the per se impropriety of all punitive damages in every tort case, that’s a different blogpost.

    Question: Do you believe defamation is constitutionally protected speech and that each and every libel or slander judgment in American history has therefore been an affront to the First Amendment? Or how about just those slanders that occurred on public property? Is defamation any less “ephemeral” than invasion of privacy or IIED?

    Comment by KipEsquire — October 31, 2007 @ 10:00 pm
  2. I am another lawyer who doesn’t believe the verdict will be tossed. No one stopped his First Amendment expression, his First Amendment right to be a vocal a**hole was not abridged. However,the First Amendment doesn’t protect him from liability for damages intentionally or negligently caused by his conduct. I think both intentional infliction of emotional distress and invasion of privacy are spot on. His real defense might be that he is stark raving mad, and possibly unable to form intent. For any negligence, he is held to a reasonable person’s standard, not his own special brand of sick analysis. I question the legal advice he’s getting. On a personal note, $10.9 Mil is not enough. I hope he burns in his own personal hell when the real Judgment comes down, as his is a spiteful God.

    Comment by Legal Eagle — October 31, 2007 @ 10:34 pm
  3. I dont really care about people picketing about what they believe in, but as a marine myself, what was said makes me very angery. The fact that they are basicly spitting on the sacrifices that my bothers are making over in the middle east…. And then messing with a heros funeral. I dont even know what to say. Think if it was one of their sons who had died, what would the signs say then?

    Comment by Kodan — October 31, 2007 @ 11:03 pm
  4. Actually, being far too familiar with Fred Phelps for the last 20 years (since the asshole’s from my state and we’ve had to put up with his bullshit forever) I honestly wish that there was a way to strip rights just from him…he’s quite frankly one of the most despicable human beings on the planet, as about half his kids will attest. Unfortunately you can’t do it without endangering freedoms for everybody else. And frankly it’s just not worth it for a guy as pathetic as Phelps and his little family of inbreds. Best way to deal with them is simply to ignore them and hope that the miserable fuck dies of a really really painful disease very soon.

    For anyone who wants to see what a zero this guy is, here’s his bio from Wikipedia http://en.wikipedia.org/wiki/Fred_phelps . Note the section about his disbarment.

    And here’s a story about the Patriot Guard Riders, a private group of bikers who travel to the funerals as well to keep the Phelps people away from the family members of deceased servicemembers and to give their support for the troops:

    http://www.cnsnews.com/ViewCulture.asp?Page=%5CCulture%5Carchive%5C200602%5CCUL20060227a.html

    Comment by UCrawford — October 31, 2007 @ 11:18 pm
  5. Kodan,

    Phelps wouldn’t care. Half of his kids have disowned him because he’s a degenerate fuck. Several of them have said that they suspect he literally can only achieve sexual gratification through hatred. He’s just a sick twisted old man who’s a failure at everything meaningful in his life whose only goal is to make people miserable. He’s not worth re-writing our freedoms for. And nothing he does takes anything away from our troops.

    Comment by UCrawford — October 31, 2007 @ 11:24 pm
  6. Let them protest — out of sight or sound of a funeral (300 feet is not adequate), and let’s designate funerals as private functions, so then there’s no issue over freedom of speech in public places. If their yelling sounds or sight of hate slogans enter the funeral space, then they are crossing into the private function, like pollution crossing over state borders. There’s something severely wrong with how we implement freedom of speech if it allows grieving families to be harrassed like this. Say what you will, but how about not where you will cause distress at a funeral service, for goodness sake. Why don’t they go protest in front of the White House? And there has to be a point at which people cannot justify any atrocious behavior under the guise of religious freedom. Why not just say that your religion requires you to engage in human sacrifice? Should we allow that religious freedom?

    Comment by XYZ — November 1, 2007 @ 1:33 am
  7. At what point does one’s taking liberty infringe upon another’s possession of liberty? That is a difficult demarcation line to discern, but I believe that these homophobic funeral protestors are without a doubt well beyond it.

    It is hard for me to conceive that they were more than $10 million over the line, but I was not sitting as a juror in the case, nor have I read the transcripts, or even heard any significant trial recaps in the broadcast media. It is not my place to render a decision on the propriety of a lawfully empaneled jury’s decision of fact, but you believe it is proper for a defender of individual liberty to do so?

    Your implied mistrust in a verdict rendered by a jury of peers strikes me as being exceedingly anti-libertarian. All humans possess a Natural Right to Trial by Jury. Is this not part of the very bedrock of liberty upon which This Nation was founded?

    You also arrogantly disregard the fact that there was a transparent controversy at issue in this trial: competing claims of religious liberty. Did you forget that funerals usually are a religious ritual? Weren’t the funeral goers’ liberties being violated? Are you claiming that All Humans are not endowed at birth, by that which the perceive as the Creative, with a right to venerate their dead relatives and friends in the manner that they deem is proper?

    Your post amuses me, and leaves me wondering if the rectitude of your intent is not pure as the driven snow, but is instead, driven by your personal agenda, which you obfuscate by wrapping it up in a cloak of freedom’s defense.

    Its high time that this Nation does return back to its origins in regards to religious toleration, and begin to put these present-day pompous gushers of hateful religiosity back behind the Zoo Wall of Separation Between Church and State which is the only place they can be tolerated in a free society. There is no exclusion on religious grounds for breech of the peace, and incitement to violence, which is exactly what the Phelps’ are doing.

    I suggest a two-pronged Jeffersonian test that all religions must pass before they are given leave to venture out of their cages:

    “”But it does me no injury for my neighborto say there are twenty gods or no God.It neither picks my pocket nor breaks my leg.”

    -Thomas Jefferson – Notes on Virginia – 1782

    The two tenants that all religions must follow to be tolerated being:
    that they cause no societal harm
    that they do not suckle off the teat of the public treasury
    This was not just an idea promulgated by Virginia’s Revolutionary Unitarian Defenders of Individual Liberty either. Samuel Adams proposed that Religious toleration did not extend to sects which were subversive to the civil government, or believed themselves to possess a divine right to coerce their will over it:

    “…it is now generally agreed among christians that this spirit of toleration in the fullest extent consistent with the being of civil society “is the chief characteristical mark of the true church”1 & In so much that Mr. Lock has asserted, and proved beyond the possibility of contradiction on any solid ground, that such toleration ought to be extended to all whose doctrines are not subversive of society. The only Sects which he thinks ought to be, and which by all wise laws are excluded from such toleration, are those who teach Doctrines subversive of the Civil Government under which they live. ”

    Samuel Adams, “The Rights of the Colonists”, November 20, 1772

    Comment by a knight — November 1, 2007 @ 3:06 am
  8. Am I The Only One Troubled?…

    I may be about to make myself the most unpopular guy in the blogosphere with this post. I may even be accused of defending the indefensible. But I’m taken aback by the untoward celebration of a decision that imperils the……

    Trackback by Rhymes With Right — November 1, 2007 @ 5:39 am
  9. Kip,

    Question: Do you believe defamation is constitutionally protected speech and that each and every libel or slander judgment in American history has therefore been an affront to the First Amendment? Or how about just those slanders that occurred on public property? Is defamation any less “ephemeral” than invasion of privacy or IIED?

    I will admit that I am sometimes persuaded by the Rothbardian argument that libel and slander laws are per se un-libertarian, but I’m not convinced.

    And I think there is a distinction between defamation — where one can often point to real, monetary damages resulting from the spreading of false information about a person, and a cause of action like IIED where the damages, if any, are psychic and impossible to quantify.

    Applying this to the case at hand, I don’t see why the cause of action of IIED should trump the First Amendment, even when the speech, as here, is offensive.

    Comment by Doug Mataconis — November 1, 2007 @ 5:49 am
  10. Knight,

    And how, pray tell, would be the one to make the judgment as to what a “valid” religion is ?

    You and I may not like what Fred Phelps says, or what racists like David Duke say, but they have the right to say it.

    Comment by Doug Mataconis — November 1, 2007 @ 5:51 am
  11. a knight,

    My reason for including the link about the Patriot Guard Riders was to illustrate the point that there is no need for government intervention to prevent Phelps from harassing people at funerals, private groups have sprung up in response to deal with the situation.

    As for your freedom of religion argument, it’s flawed. The law is designed to force government to respect freedom of religion, not individuals. As long as Phelps isn’t resorting to violence in his protests he’s not infringing on anyone’s rights, he’s merely pissing people off by making unpopular or offensive statements, as is his right. And thanks to private groups like the PGR, who understand the need for free speech in addition to respect for the troops, we don’t need the government intervention.

    Comment by UCrawford — November 1, 2007 @ 8:46 am
  12. The can be no test for a religion’s validity, because it delves into faith, not fact; the test is instead, whether a religions is to be tolerated, and the standards for this test are clear. A religion is only deserving of tolerance if it:

    does not coerce its views upon others

    does not in anyway receive public funding

    is not subversive to the civil state, nor place itself without the civil law’s reach of justice.

    Is this not what is inferred from the citations I offered from This Nation’s Origins? The Wall of Separation was intended as a two-way barricade.

    “There is many a religious man who knows nothing of argumentative reasoning; there are many of our most worthy citizens who cannot go through all the labyrinths of syllogistic, argumentative deductions, when they think that the rights of conscience are invaded. This sacred right ought not to depend on constructive, logical reasoning.

    . . . That sacred and lovely thing, religion, ought not to rest on the ingenuity of logical deduction. Holy religion, sir, will be prostituted to the lowest purposes of human policy. What has been more productive of mischief among mankind than religious disputes? Then here, sir, is a foundation for such disputes, when it requires learning and logical deduction to perceive that religious liberty is secure.”

    Patrick Henry, June 12, 1788, Virginia Ratifying Convention

    James Madison articulated it so much better than I ever possibly could:

    “What influence, in fact, have ecclesiastical establishments had on society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the civil authority; on many instances they have been seen upholding the thrones of political tyranny; in no instance have they been the guardians of the liberties of the people. Rulers who wish to subvert the public liberty may have found an established clergy convenient auxiliaries. A just government, instituted to secure and perpetuate it, needs them not.”

    James Madison, 1785, “A Memorial and Remonstrance”

    Comment by a knight — November 1, 2007 @ 9:01 am
  13. Any politically active church MUST have its tax exemption eliminated and start paying taxes and stop being subsidized by taxpayers. Why has this not happened? It’s the law! The U.S. is NOT a godless nation. The separation of church and state in America means the state cannot sponsor, mandate, or support any religion. America was founded on Judeo-Christian principals and the laws of the nation and states are based on the Ten Commandments. The government in America is the citizens; it’s not a separate entity from the people. The government must remain secular, as all religions are a dogma. See http://tinyurl.com/2znnvl

    Comment by Dr Coles — November 1, 2007 @ 9:44 am
  14. Dr. Coles,

    Isn’t there a bit of a contradiction between this statement:

    The separation of church and state in America means the state cannot sponsor, mandate, or support any religion.

    and this one:

    The U.S. is NOT a godless nation…..America was founded on Judeo-Christian principals and the laws of the nation and states are based on the Ten Commandments.

    And I’d point out that, for the most part, the United States Constitution owes more to the writings of John Locke than words of St John.

    Comment by Doug Mataconis — November 1, 2007 @ 9:51 am
  15. I didn’t realize Phelps was a disbarred attorney till I read UCrawford’s post. So now I know where Phelps is getting his crazy legal advice. In the law biz we have a saying, “The lawyer that represents himself has a fool for a client.”

    Comment by Legal Eagle — November 1, 2007 @ 9:58 am
  16. [...] put this entry up at The Liberty Papers last [...]

    Pingback by Below The Beltway » Blog Archive » Thoughts On The Funeral Protestors Case — November 1, 2007 @ 10:03 am
  17. Legal Eagle,

    Several of his family members are attorneys as well. They’re familiar with the law, and they’re familiar with the Constitution. They represent the very extreme of Constitutional freedom, the people who understand the limits of their rights and attempt to use all the powers within those limits to inflict misery and suffering on others. Their ultimate goal, of course, is to get us to overreact by restricting their freedoms so that they can use our actions as a tool to impose their own will on the people they hate (in this case, homosexuals). That’s why the best course of action for dealing with Phelps and his ilk is not restrictive legislation but apathy. And often, as the PGR has demonstrated, legislative action is unnecessary to deal with extremists who offend community values…groups of private citizens are more than capable of intervening to minimize the malicious damage extremists do while not trampling on everybody’s freedom of speech in the process.

    Like I said, Phelps is just a sick twisted old man, and if there’s really an afterlife and a Hell, he’s likely got a straight-line ticket to it. There’s no sense in making everyone else here less free by overreacting to the irrational actions of the mentally ill. As the PGR guys said in the article, the most effective way to deal with someone trying to attract attention by spouting offensive ideas is simply to turn your back on them.

    Comment by UCrawford — November 1, 2007 @ 10:22 am
  18. These people are dispicable, and protesting people’s funerals is abhorent.

    But their protest is aimed at the government. They are making an argument that a government policy is leading to the death of soldiers.

    They are protesting in public, at a place where they know they can get media attention. If you put them a mile away, nobody would care, just as if you forced abortion protesters to stay a mile away from abortion clinics nobody would listen.

    They weren’t found liable for slandering the family, just violating their privacy and inflicting distress.

    is it reasonable to be distressed by their actions — probably. Is distress something you may be able to control within yourself? Probably.

    The real question for me is, did the protest exist to inflict emotional distress on the family, or to object to the government’s position on gays? Was the infliction of distress an unfortunate by-product of the protest, or part of the reason for it?

    If this protest can lead to a penalty for emotional distress, why can’t ANY protest be subject to the same result? It’s easy enough to BE emotionally distressed. Just find a sympathetic “victim”, who has “little choice” but to be near the protesters, and you’ve got yourself a way to shut down the protests.

    For example, suppose someone is in danger of losing their home, so their wife and kids will be out on the street. They are working extra jobs to make enough money to prevent foreclosure, and they work at an office which has a large bank company headquarters.

    Then the anti-globalist protesters show up. They set up pickets around the building. The guy can’t stay home, he’s got to go to work. On his way through the line, people shout vile, hateful things at him. They call him names, make things up about him.

    Can he sue? Wasn’t he distressed? What if they took his picture and put it on the internet, haven’t they “invaded his privacy”?

    Maybe we SHOULD protect military and other funerals. Didn’t someone pass a law like that, and didn’t the courts rule you couldn’t do that?

    Do we want the government courts to essentially create in law through judgment a right to censorship by individuals that does not exist for the government itself? Isn’t the government involvement through collecting payments a form of censorship?

    Comment by charles — November 1, 2007 @ 12:20 pm
  19. Charles,

    Actually, their protest is aimed at the family members…they’re claiming that the reason the soldiers are dying is because God hates them for serving in the military and that they deserve to be blown up because they live in a country that allows homosexuals. It’s not a protest against Iraq policy, it’s merely Phelps’ sick little anti-gay paraphilia.

    They have a right to say whatever they want, no matter how stupid or offensive it is, but let’s not start misconstruing their arguments as something they’re not. Phelps wants the government to legislate against individual freedom and free speech because he sees those laws as tools that can eventually be used in his war against homosexuals’ (and everybody elses’) freedoms. He doesn’t actually care about anything else. He went to Iraq before the invasion to cheer Saddam’s anti-gay policies.

    Passing laws against picketing funerals may seem like a good idea with limited blowback, but it’s exactly what Phelps wants people to do…overreact to his sick little games and make bad law that can eventually be used against the people he hates.

    Comment by UCrawford — November 1, 2007 @ 12:35 pm
  20. Passing laws against picketing funerals may seem like a good idea with limited blowback, but it’s exactly what Phelps wants people to do…overreact to his sick little games and make bad law

    We, as a society, seem very susceptible to that tactic lately.

    Comment by Jeff Molby — November 1, 2007 @ 1:08 pm
  21. I admit to the use of hyperbole, but what some do not understand is that Phelps was not denied his free speech rights, he was instead found to have committed an actionable civil tort by an empaneled jury. Would you prefer a return to the dueling fields to resolve matters such as this? If tort laws are wrong, then work towards having them changed, but to dismiss a jury determination of fact out of hand is itself a theft of liberty.

    As to my flawed take state/religion: from G. Washington; note the ‘good citizen’ qualifier:

    “Every man, conducting himself as a good citizen, and being accountable to God alone for his religious opinions, ought to be protected in worshipping the Deity according to the dictates of his own conscience.”

    George Washington, letter to the United Baptist Chamber of Virginia, May 1789

    I cite this to make people think differently about original intent, and its potential for misuse, as well as wondering if there might be limits to religious freedom. Why is this any different from publishing the speech of an Imman supporting acts of terror on a website? That is a criminal act under the Patriot bill. It is amazing how far Congress is willing to bend over backwards when supporting homophobic hate spewed by faux Christians, which if originating from a different source, and targeting a different group would be considered unlawful. Equal application can be such a bitch, eh?

    Here’s another asymmetric bit of data: Congressman Mike Pence (R-Indiana) on the House floor May 3, 2007, speaking for the Republican Study Committee, which is the House Conservative Republican caucus, warmly embraced “The Wall of Separation between Church and State” as cited from Jefferson’s letter to the Danbury Baptists, implying it should be viewed as original intent.

    From the Congressional Daily record:

    http://tinyurl.com/2ls6cp

    Comment by a knight — November 4, 2007 @ 4:26 pm
  22. The Volokh Conspiracy, November 7, 2007
    Professor Eugene Volokh, UCLA School of Law
    The Phelpsians’ Picketing and Fighting Words:
    http://volokh.com/posts/1194480007.shtml

    Discusses overly broad application of tort law, fighting words, and how “the jury wasn’t required to find that the speech was fighting words”.

    I have no doubt that the speech here would lead many listeners to want to punch the speaker; it would lead me to want to do that, too. But the “direct personal insult” requirement is important, or else the doctrine would lead to the punishment of a vast range of controversial speech: picket signs that condemn strikebreakers; abortion clinic protests that call abortion providers “murderers” or “babykillers”; military base protests that call soldiers “murderers” or “babykillers”; a wide range of public speech that some see as racist, sexist, antigay, religiously bigoted, anti-immigrant; and so on.

    Probably not what is expected given my previous posts. Professor Volokh may be about the closest thing to a real libertarian who is also a member of the Federalist Society.

    Comment by a knight — November 8, 2007 @ 5:52 pm

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