March 3, 2011

All You Are Is Wrong (Redux)

Last week I wrote about how it irks me when pundits pop off about Supreme Court cases without appearing to have a good grasp of the decision. Lo and behold, we got just such a case this week, as the Court affirmed the Fourth Circuit's decision that the Fred Phelps gang couldn't be sued for intentional infliction of emotional distress (and related claims) because of the First Amendment. The decision was 8-1, with only Justice Alito ruling against the Phelpsians.

Here's a quick summary of the facts:
The case involved a March 2006 demonstration by Rev. Fred Phelps' and some members of his family at the funeral of Marine Lance Cpl. Matthew Snyder.

The protest at Snyder’s funeral -- one of many that members of the Topeka, Kansas church have organized, often (and in this case) bearing signs that read "God Hates the USA/Thank God for 9/11," "Thank God for IEDs," "God Hates Fags," "Pope in Hell," etc. -- was confined to a public area adjacent to the event. At their nearest approach, according to Chief Justice John Roberts' ruling, the demonstrators and the funeral party were separated by a distance of at least 200 feet.
The Snyder family didn't even learn of the content of the signs until they saw news coverage of the event.

The "all you are is wrong" commentary on this case comes from our local conservative pundit, Don Surber, from Charleston's Daily Mail. Surber sides with Alito (no crime in and of itself - Alito's wrong, but not laughably so), not to mention noted First Amendment scholar Sarah Palin, but gets it all wrong along the way.

First, Surber writes:
This was not about free speech.

The God Hates Fags pickets went unimpeded by the state.

This was a civil case in which a family harmed sought compensation for damages done by a corporation’s actions, albeit a tax-exempt corporation.

Actions have consequences.

Unfortunately, the Supreme Court did not see it that way.
The implication being that, unless state criminal law or regulation is involved, the First Amendment just doesn't apply. That's an interesting theory, but one that's been rejected by the Supreme Court for decades. Just look at New York Times v. Sullivan (1964) and Hustler Magazine v. Falwell, probably the two most important private action First Amendment cases. They're not exactly of recent vintage. At any rate, Snyder's lawyers never made that argument, so the Supremes had no reason to reach it.

Second, Surber writes:
A jury found that indeed this protest disrupted the funeral and that church owed

This was a First Amendment case, but it involved the free practice of religion, not free speech.
Ironically, if, as Surber argues above, that the First Amendment has no bearing on tort law, it's unclear how it could be a free exercise case, either. That's part of the First Amendment, you know. Putting that to one side, however, Surber again advances an argument that Snyder never made, in the trial court or on appeal. Perhaps Surber should have volunteered his legal mind to the cause?

Furthermore, juries get it wrong sometimes. Verdicts aren't holy writ. If they were, I'd be a professional blasphemer, which, actually, sounds pretty cool. So the fact that a jury made a finding doesn't render the issue settled. Furthermore, the Supremes decided this case on the basis of law not facts. The question should have never reached the jury, so its verdict really is irrelevant, at the end of the day.

Surber continues along this line:
The oldest religious ceremony is the funeral, which is to honor the life of the departed, mourn the loss and pray for a better life on the other side.

The family of Matthew Snyder was not allowed to do so.

Fred Phelps and his followers denied the family that right to observe this religious ceremony in peace and privacy.
Given that the Phelpsians were on public land, not in the church (or on church property), holding signs that the family couldn't even read, how were the Snyders "denied" the right to do anything? The funeral went ahead and their son was remembered.

Consider an alternative scenario, where a group exactly the same size as the Phelpsians did exactly the same thing as the Phelpsians, with one exception - their signs said things like "God Bless Our Fallen Troops" and "Once Warriors, Now Angels" or something like that. Is that still denying the Snyders their right to a private and peaceful funeral?

If not, you're dishing out the ability to speak based on what's being said. That's the primary evil that the First Amendment is designed to prevent. Content-neutral time, place, and manner decisions are a whole different ballgame and generally well received by courts. For what it's worth, per a footnote in the Court's opinion, the Phelpsians would not have been violating a Maryland statute enacting such restrictions for funeral protests, had it been in effect at the time.

Finally, Surber says:
We are Americans and we love to defend the right of unpopular speech.

But we seem to be slow to defend the rights of individuals to practice religion.
But, Don, it doesn't appear that you love to defend the right of unpopular speech. That's just what the Court did in this case (which, for the last time, had nothing to do with freedom of religion!). In fact, you appear to hold the line that a majority of Americans do - they love the idea of free speech, but are quick to chuck it when someone says something they find sufficiently offensive. But that's the whole point of the First Amendment, to protect the Phelpsians and the Skokie Nazis as much as it does popular and noncontroversial speech.

Or, as Andrew Cohen at The Atlantic puts it:
After the ruling, Margie Phelps, a member of the church who is also a lawyer, and who argued the case forcefully for years on behalf of Westboro Baptist, told CBS Radio News what she would like to tell the Snyder family now that they've lost their case. "This was a fool's errand. It was un-American as anything you could have done. That boy is still dead.... Now get down on your knees, mourn for your sins, repent and obey," cackled Phelps, the lawyer, the despised victor in a constitutional showdown they'll be talking about until the next military funeral case gets filed in federal court.

Like it or not, your constitution protects her. And if we all liked everything about what the Constitution promised, or required, or even permitted, it would be a greeting card or an anthem instead of a touchstone. It ought to be reassuring, not depressing, that the fabled document so clearly and roundly protects a creep like Phelps when he displays the sort of crap members of his family display when they shamelessly seek out opportunities for free international publicity.
The moral of the story, really, has nothing to do with courts, loud mouthed douche bags, or the mourning family.It has to do with the media.As others have noted, nobody really gave a fuck about Phelps and his gang while they protested funerals of AIDS victims.It was only when they started showing up at military funerals that most people took notice.

Which, of course, is just what they want.The Phelpsians didn't have anything personal against Mathew Snyder or his family - I doubt they gave two shits about them. They wanted a stage and the publicity that goes along with their brutally bigoted street theater. And, of course, they got it. The sooner the media realizes that and stops giving them what they want, I imagine they will sink into obscurity. We can only hope.


  1. How do you think this affects "hate speech" legislation? If Westboro is free to say these awful things, isn't everyone free to say awful things?

    To be clear, I don't challenge the SCOA's decision, I am not a supporter of Westboro.

  2. Don't worry - I don't think anyone outside of the Phelps family actually supports Westboro.

    There is no "hate speech" exception to the First Amendment. I'm not familiar with any legislation that attempts to ban it, aside from areas that are already unprotected (harassment, slander & libel, etc.). Do you have an example?

  3. Not at a national level. But states try to implement hate speech legislation against homosexuals and other minority classes.