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.

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

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.

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.

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?

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.

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.

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”

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.

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.

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.

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……