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Phelps smacked with 11 million settlement
Posted by: McQ on Thursday, November 01, 2007

This, I'm sure, will be popular. I have some real concerns about all of this.
A Baltimore federal jury awarded nearly $11 million Wednesday to the father of a Marine killed in Iraq, deciding that the family's privacy had been invaded by a Kansas church whose members waved anti-gay signs at the funeral.

It was the first-ever verdict against Westboro Baptist Church, a fundamentalist Christian group based in Topeka that has protested military funerals across the country with placards bearing shock-value messages such as "Thank God for dead soldiers."

They contend that the deaths are punishment for America's tolerance of homosexuality and of gays in the military.
This is a very emotionally satisfying verdict. It probably bankrupts a group of despicable people who hide behind the word "church" to spread their vile and hateful rhetoric. If they showed up at a funeral I was attending for a fallen soldier, I'd most likely embarrass myself by confronting them and their hate.

But there's this little thing called the First Amendment which keeps stepping between me and them. Eugene Volokh is also uneasy about the ruling:
"I think when speech is a matter of public concern it still has to be protected, even when by social standards it is extraordinarily rude and outrageous," said UCLA law professor Eugene Volokh.

University of Maryland law professor Mark Graber said the size of award, which included $8 million in punitive damages, could have a chilling effect on speech.

"This was in a public space," Graber said "While the actions are reprehensible, the First Amendment protects a lot that's reprehensible."
That keeps playing over and over in my head. Oh yeah, I'd love to see Phelps and his crew suffer for their disgusting and hateful activities. And I'd further love to see them lose everything they have because of those activities. I'd love it. But I'm not sure I can support it.

We give a lot of lip service to our fundamental belief in free speech, and we seem to always note that our support even includes speech we find disgusting, despicable and extreme (as long as it doesn't incite to violence).

Yet here we are with a chance to walk the walk seemingly celebrating its repression.

But a commenter at The Belmont Club, commenting on a similar post, points out that the right to free speech doesn't absolve the speaker from the consequences of his actions.

I think that's a legitimate point. Actions do have consequences. And I certainly support the concept that people take responsibility for their actions. But again, the protest took place in an acknowledged public place. So the question is, what expectation of privacy can any citizen have in that sort of situation (this being framed by some as a case pitting the "right to privacy" against the "right of free speech"). I'm not sure. But as a layman, just given this case and the circumstances as I understand them, it appears to be a bit of a legal overreach to find for "the right of privacy".

Wrethard says:
It is always possible to construct contradictions between the claims of two competing rights. In this case it is between the rights to speech and privacy. Between Phelp's right to express his views and that of a father to grieve in piece. Society often rebalances the competing claims depending on the requirements of the time. Twenty two states enacted laws to prevent such disgusting displays without complete success, setting the stage for the court confrontation. Phelps should have seen it coming.
I'd guess Phelps was surprised it hadn't ended up in court previous to this case. I'd suggest that it isn't over yet either and I'm going to be interested (since this was a federal jury) to see whether or not this ends up a free-speech case during the next go-round.

Now I'm certainly open to an argument that can convince me
this isn't a free speech case, because I would love to see Fred Phelps and his family of traveling trolls get everything that is coming to them. I'd love to see his "church" of hate shut down for good. But I'm more concerned about First Amendment freedoms than shutting down a disgusting and perverted homophobe who appears, at least on first examination, to have carried out his protests in a manner protected by that guarantee.
 
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I dunno....couldn’t the manner and subject material of his "protest" at a funeral fall under "fighting words"?

 
Written By: shark
URL: http://
I can see the 6 millions for the invasion of privacy getting tossed out, but the 2.9 million for compensitory, and 2 million for causing emotional distress should stick as well.

Phelps and his lot are intentionally disruptive and offensive. They clearly violated tort law here. If they had just stood there and said/done nothing but hold up signs, I bet this verdict never would have happened.

They do, certainly, have the right to free speech, but the family has the right to bury their loved one without "God Hates *ags" and their "Soldiers are dying because of the gays" bull.

They wanna protest? Do it in the middle of town, not next to the funeral.

I’ve said it elsewhere: Part of my death benifits will be earmarked for hiring a handful of goons to express my displeasure over such people, just in case they show up at my funeral.

And I’m sure it’s futile, but I’d also ask the gun salute be aimed a little lower. I certainly consider Phelps and crew an "area of least harm".
 
Written By: Scott Jacobs
URL: http://
Not a constitutional expert here, but I thought the 1st amendment was all about the government restricting free speech.

As I understand this, it is a civil suit, and is not about the government restricting free speech.

Again, that being said, it seems emotionally satisfying, but the implications of the result is still is somewhat troubling.
 
Written By: Andy
URL: http://
Good point Andy. This is a civil sanctioning of speech, not an outright censuring on behalf of the government...

Besides, if the University of Deleware can do this, we can sue Phelps and win.

And I had to read the Malkin article twice... I kept reading Erb’s employer, instead of University of Delaware.

I can see it now. In some dark, dank room, deep under the administration building, Erb steps into the light provided by the single naked CFL bulb hanging from the ceiling. Onto the rickety table he drops a stack of documents.

"Ladies and Gentlemen," he says. "I have a plan..."
 
Written By: Scott Jacobs
URL: http://
McQ asks:
But again, the protest took place in an acknowledged public place. So the question is, what expectation of privacy can any citizen have in that sort of situation (this being framed by some as a case pitting the "right to privacy" against the "right of free speech").
I think that anyone who is not a public figure and is having a funeral for a loved one has a high level of expectation of privacy regardless of whether there’s a public street and sidewalk nearby.

Privacy doesn’t mean that you only get to do something behind a closed door in a private space. At least that’s what I would argue for the plaintiff when the case is appealed. That to intrude into the grief and mourning of a family, regardless of whether you are standing on a public sidewalk, is to invade their privacy. A highly abstract case for free speech vs. a fundamentally concrete case for the right of a family to mourn at a funeral without harassment is not that tough a choice for me.

You can’t always be thinking ahead to how some legal jobber is going to use this to limit some other kind of speech. Was this family entitled to mourn at this funeral without being harassed by this church? I say yes.

In better times in America, Phelps would have been smacked around and then tarred and feathered while the cops enjoyed coffed outside of town at a truck stop.
 
Written By: Martin McPhillips
URL: http://mcphillips.blogspot.com/
They were, however, in pretty much the exact distance as set forth by law for this sort of thing. It’s the rest of the behavior that I think pushed them over the line. Had they just stood there with their signs, I don’t think this suit would have gone forward, let alone won any settlement at all.

Phelps and his ilk act out because they HAVE to be noticed. The chance that people might ignore them keeps them up at night.
 
Written By: Scott Jacobs
URL: http://
Scott Jacobs writes:
They were, however, in pretty much the exact distance as set forth by law for this sort of thing.
But what is the purpose of protesting at a private funeral? It’s not like there is any controversy involved. A member of a family has been killed. They have a funeral.

It doesn’t even rise to the level of a celebrity wearing a fur coat and catching the ire of PETA.

Nor is the church or chapel where the funeral is being held performing abortions.

So, the issue of protesting at these funerals is so abstract that if you turn the question around what’s to stop Phelps from protesting outside of a restaurant because the customers inside are eating food?

In the Phelps formula, almost any activity could be protested because a way could be found to link it back to whatever his peeve is at the moment.

In the meantime, these regular, honest, everyday people who have lost a son or daughter are being subjected to this nonsense as if the survival of the Constitution and the Republic depended on it.
 
Written By: Martin McPhillips
URL: http://mcphillips.blogspot.com/
from Outsidethebeltway:

"Alarmed by Westboro protests, at least 22 states have proposed or enacted laws to limit the rights of protesters at funerals. Only months after Matthew Snyder’s death, Maryland passed a law prohibiting targeted picketing within 300 feet of a funeral, burial, memorial service or funeral procession."

"While the right to hold unpopular ideas is absolute, the courts have long ruled that the state has the right to impose reasonable restrictions on the time, place, and manner in which those ideas are communicated."
 
Written By: markm
URL: http://
Hey, don’t think I’m defending those swine.

Just not sure the whole award will withstand appeal. I mean, I hope it does. I really hope it does.
 
Written By: Scott Jacobs
URL: http://
I guess this goes along with the banning of smoking in public outdoor areas, lest someone downwind receive an unwanted whiff of tobacco smoke. And the banning of smoking in the home, lest a neighbor receive said whiff.
 
Written By: timactual
URL: http://
The "protesters" were engaged in a vile but peaceful demonstration 1000 feet away from the church grounds. That’s more than three football fields away. To all those who think that the family’s privacy was invaded to the point that the protesting group should be financially destroyed (and the family enriched, btw), I ask, how far away do you think they needed to be before they had a right to hold signs and do whatever else they do? 1500 feet? 10 miles?
 
Written By: Dan Holway
URL: http://
Some of this conversation sounds to me like a dialog I had with my union boss cousin. He typically attributes evil intent to the people on the other side of the argument. Much as the people here who appear to be very pro homosexual do with the people who have strong religious values who object to homosexuality based on their religious texts. I know nothing about Phelps, and certainly want no part of defending him but could we stop attributing evil intent to people whose beliefs we do not share. The bible is very clear about homosexuality. I am not a Christian, so I don’t care what is says, but I am not going to ignore what it clearly says. Being christian makes you a de facto homophobe. It doesn’t make you evil.
If his group showed up at a funeral I was attending, the police would have to break it up. THERE WOULD BE A FIGHT.
 
Written By: p
URL: http://
The bible is very clear about homosexuality.
It also says you can stone your brother for working on the Sabbath, and sell your children.
I know nothing about Phelps
All I can say is that you should make some minor effort into knowing something about this vile, vile human being before you try and tell me that I’m pro-homosexual because I have an issue with people yelling as a mourning family that their son died because god hates fags.

Only people who actively hate gay people would fail to see how that might, just maybe, be offensive.

I don’t like the idea of "gay", that that in no way affects how I treat someone (until my ass gets grabbed, then all bets are off).

Being gay does not make someone evil, and it most certainly does not mean that just because we have gay people in this country (and thank god we do, or we’d have been deprived of George Takai who rocks) God is visiting horrible, horrible things on us.

Being Christian makes me a homophobe by definition?

Do you go to University of Deleward?
 
Written By: Scott Jacobs
URL: http://
Regardless of the constitutionality of the decision, I am not comfortable with it. I would prefer to see Phelps ignored. I have seen no sign that his publicity seeking is bringing any more maroons into his flock; if anything his actions bring only contempt upon him and his followers. Also, aren’t there biker gangs that have a tendency to show up when Phelps does, and then rev their engines right in front of him? Counter protest; works for me.
 
Written By: Acad Ronin
URL: http://
According to the Baltimore Sun, here is how the family’s privacy was invaded:

Snyder testified that he never saw the content of the signs as he entered and left St. John’s on the day of his son’s funeral. He read the signs for the first time during television news reports later that day.
A Google search on the Internet weeks later led him to the church’s Web site and the posting about Matthew Snyder.
 
Written By: Dan Holway
URL: http://
I don’t think so, McQ. The First Ammendment allows you to say whatever you want about the Government and other people...but other people, then, have the right to challenge you. While you can say whatever you want, protesting a funeral is quite another thing.

Besides, if we’re being literal about all this, ’Congress [has not] enact[ed] any law abridging’ these people’s speech: it was tried civilly.

I don’t see a Constitutional dilemma here. But I’m open to arguments.
 
Written By: Joel C.
URL: http://
Scott
I was probably not clear. I don’t care about homosexuality as an issue or abortion or a lot of other things. What I do care about is calling people names because you don’t agree with their firmly held religious beliefs. I am agnostic and probably don’t share their beliefs. I certainly don’t agree with what the bible says about the topic, or stoning people for that matter. That doesn’t change what the bible says, and if devout christians choose to believe what the bible says, I applaud their faith even though I don’t share it. Perhaps you should call yourself christian light since you have apparently decided to cherry pick which bible strictures you will follow. That is for you to decide. It is all superstition to me.
Once again
If the reverend and his followers show up at any funeral which I am attending, and start the crap that I have been hearing about, a fight will ensue. Period. I go to the funerals of fallen brothers in my area, and nobody has shown up yet. I keep hoping.

Heh love the comment about the university of delaware
 
Written By: p
URL: http://
No relation.
 
Written By: Phelps
URL: http://phelps.donotremove.net
I don’t know why my name isn’t registering. It is Paden Cash
 
Written By: p
URL: http://
I don’t think so, McQ. The First Ammendment allows you to say whatever you want about the Government and other people...but other people, then, have the right to challenge you. While you can say whatever you want, protesting a funeral is quite another thing.
I think Phelps would claim his speech is political speech and that it is the government, through a federal jury, which is squelching it.

Now, you may or may not agree with how Phelps would characterize his speech, but you have to agree that it is indeed a federal organ which is involved in punishing him for that speech.
 
Written By: McQ
URL: http://www.qando.net/blog
I think Phelps would claim his speech is political speech and that it is the government, through a federal jury, which is squelching it.
Since the entirety of his "congregation" is involved, wouldn’t that then affect his tax-exempt status?

:)
 
Written By: Scott Jacobs
URL: http://
Not a constitutional expert here, but I thought the 1st amendment was all about the government restricting free speech.

As I understand this, it is a civil suit, and is not about the government restricting free speech.
In this case, the "government" is the court which is squelching otherwise legally protected speech.

That being said, I haven’t followed the case, and I don’t know what the claims against Phelps’ organization were. If they sounded in tort (which the "intentional infliction of emotional distress" would be), then I’m not sure there is a 1st Amendment issue here — IOW, Phelps can say whatever he wants, but he’s going to have to pay up when it harms someone.

I’m not sure what the "right to privacy" claim is, unless it has something to do with a defamation/false light claim (under which 1st Amendment issues are addressed).
 
Written By: MichaelW
URL: http://asecondhandconjecture.com
I think Phelps would claim his speech is political speech and that it is the government, through a federal jury, which is squelching it.

Now, you may or may not agree with how Phelps would characterize his speech, but you have to agree that it is indeed a federal organ which is involved in punishing him for that speech.
I would indeed...and lets look at what the words say:

"CONGRESS Shall..." Not "The Government shall not..."

Literally speaking, there’s no crisis here.
 
Written By: Joel C.
URL: http://
Constitutional issues aside, doesn’t Phelps’ actions amount to harrassment? People have been charged with "hate crimes" for less than whe he’s done.

They should now go after him with a civil suit. Attach every piece of property he owns, down to his last pair of socks.

Can we just stand by and say, well, he’s free to say whatever he wants, regardless, and let him keep doing foul deeds? True, it may not affect you, but you probably weren’t at the funeral of your son.
 
Written By: ZZMike
URL: http://www.rigoletto.com/blogger.html
you can charge him with harrasment all you want: that’s perfectly legal.

Hate Crimes is BS though
 
Written By: Joel C.
URL: http://
Constitutional issues aside, doesn’t Phelps’ actions amount to harrassment?
I’m not sure how anyone is harassed by a person 1000 feet away from them protesting with a sign.
They should now go after him with a civil suit.
Works for me. But this was a federal suit. If they go civil it seems the proper venue would be a state court.
Can we just stand by and say, well, he’s free to say whatever he wants, regardless, and let him keep doing foul deeds? True, it may not affect you, but you probably weren’t at the funeral of your son.
Oh it effects me plenty as I made abundantly clear in my post. But then so does squelching speech.
 
Written By: McQ
URL: http://www.qando.net/blog
"CONGRESS Shall..." Not "The Government shall not..."
Yeah, I understand that, but if not a law, what’s the basis of going to federal court? To my knowledge, courts deal in the law and the only institution that can make federal law is Congress.
 
Written By: McQ
URL: http://www.qando.net/blog
It depends on who has jurisdiction in the case and who is prosecuting. If it’s The US vs Westboro then your argument has serious merit. If it’s Snyder vs. Westboro, then the situation is a civil case, but for whatever reason, jurisdiction lies in Federal Court. In this case, if I’m not mistaken, Phelp’s Group was taken to court in a civil suit, but the jurisdiction lies in Federal Court. That’s all that means.

Even then, the Jury found the group liable for emotional distress, invasion of privacy and harassment. The law has remedies for this sort of behavior.

also, I don’t know if the Invasion of Privacy ruling will be thrown out, but it may be looked at as excessively punitive (which is probably going to be the case).

Also, here’s the problem:

Their reason for protesting is the Military’s tolerance of Gays in the Military. Specifically targeting a fallen lance corporal who has about as much say so in military policy as you or I do is absurd, and precisely why it falls under harassment.
 
Written By: Joel C.
URL: http://
since when have incitement, slander, and fighting words been protected speech?
 
Written By: kyleN
URL: http://impudent.blognation.us/blog
Hmmm. Some fine lines need to be drawn, here, I think.

The fact is, nobody is preventing Fred Phelps from speaking his mindless. That is as it should be. However, I think I ought to point out, that free speech, as a concept was never intended by the founders to remove all consequences from speech, but rather to remove governmental consequences from it. By definition, Albert Snyder is not acting as an agent of the government, but on his own. As such Phelps, et al, v Snyder is not a free speech issue.

Further, He’s not being punished for his views, but his ACTIONS. This is hardly a new position for Phelps and his fleas. He’s been preaching his hate on the subject for some time, now. Note, however, that being taken to court over it is a fairly new thing. That’s because his behavior changed. He wasn’t being taken to court for his views, then, nor is he now. Rather, he was taken to court for his ACTIONS.

Now, remember, I’ve loudly argued against Hate crime legislation. If I thought for a moment that what we were talking about was THAT kind of nonsense, I’d be all over this one, too. And for the record, I’m not totally unsympathetic to what you’re saying here. But in the end, I see no real alternative for Snyder, and the other families.

And the reason there’s no alternative is exactly reflected in Martin’s comments...

In better times in America, Phelps would have been smacked around and then tarred and feathered while the cops enjoyed coffed outside of town at a truck stop.
...we’d not be discussing this in a context of government, but in a context of what the tar to feather ratio should be for such an offense.



 
Written By: Bithead
URL: http://bitsblog.florack.us
To clear up one bit of confusion I see here—the suit ended up in Federal court probably on the basis of diversity of citizenship (that is, Synder and Phelps live in different states). I don’t know the history of this case, but it’s even possible that Synder originally sued in state court and Phelps removed it to federal court. But the fact that this was a civil suit tried in one of the recognized courts of the land does not mean the verdict and damages become a governmental action.
 
Written By: kishnevi
URL: http://
"I know nothing about Phelps, and certainly want no part of defending him but could we stop attributing evil intent to people whose beliefs we do not share."

It is not the beliefs that are being attacked, it is the actions in support of said beliefs.
 
Written By: timactual
URL: http://
I did some quick checking on this lawsuit, and here are some points for those wondering about the federal nature of the suit: this lawsuit alleged violations of Maryland state law, but was tried in federal court due to the fact that Phelps and his church do not reside in MD (as kishnevi and Joel C. pointed out). The counts in the complaint are titled "Defamation," "Invasion of Privacy-Intrusion upon Seclusion," "Invasion of Privacy-Publicity given to Private Life," "Intentional Infliction of Emotional Distress" and "Conspiracy."

Defamation and IIED are pretty common torts, but I’ve never heard of either of the two claims under the broad "invasion of privacy" heading. Perhaps they’re somewhere in the MD State Code, but I don’t have the desire or time to look.

Snyder’s attorney may have filed the suit in federal court hoping for a quicker resolution to the case, but only under a specific federal statute does this end up in federal court. The District of MD Court decided this case using MD state laws and decisions. (Maybe this isn’t as ironic as I think, but Phelps cited Hustler Magazine v. Falwell as support for his right to protest at the funeral.) So this really isn’t a case of the federal government abridging Phelps’s right to free speech in any form. Maryland made certain rules regarding its citizens’ rights to privacy, and Phelps others violated those rules.

Strangely, I can’t find anything in the lawsuit in which Phelps claims his free speech rights were being violated. What he did argue was that the case required the court/judge/jury to settle a dispute over whose religious views were right. (He lost that argument twice.)

So, going back to the beginning of the post, it would seem that at least the Maryland judicial system seems to think that Phelps’ free speech rights were adequately balanced against Snyder’s right to privacy. I might not have gotten sued for $2.9 million for doing so, but had I stood in the exact spot as Phelps and played Van Halen’s "5150" at jet-engine levels I probably would have also violated some of those invasion of privacy laws.
 
Written By: Greg
URL: http://
had I stood in the exact spot as Phelps and played Van Halen’s "5150" at jet-engine levels I probably would have also violated some of those invasion of privacy laws.
except you would have done so with good taste.
 
Written By: Joel C.
URL: http://

 
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