Wednesday, October 31, 2007

Hate at the funeral

Albert Snyder lost his marine son in Iraq, but today he gained almost $11 million in compensatory and punitive damages from Fred Phelps' Westboro Baptist Church of Kansas. (According to the claims of the defendants, there is no money to pay any of these damages, though that's hardly the point.)

Phelps and his churchmembers, especially his two daughters and other relations, are well known for the protests they stage around the country at events of all stripes. Whatever the event, their protest always has the same theme: God hates fags! Their signs are always some variation on that message and their website is even Phelps and his kith and kin spend more time and energy thinking about homosexuality and gay sex than a whole circuit party and RSVP cruise of gay men combined. Among their more spectacular protests was their performance at Matthew Shepard's funeral, where their signs read, among other things, "Matthew is in Hell".

The reason they have been ordered to pay Snyder $2.9 million in compensatory damages, $6 million in punitive damages and $2 million more for causing emotional distress, is their protest of Snyder's son's funeral. Snyder wasn't gay, nor does the Phelps crowd care. Instead, they have decided that the reason that things like 9/11 and the debacle in Iraq have occurred is because of the tolerance of gays and lesbians in the US. In this, they share a line of reasoning with the unjustly mourned Jerry Falwell and that master of the legpress Pat Robertson. But the Phelps put their signs where their fellow-God-is-zapping-us theorists' mouths are. They protest at the funerals of fallen soldiers in order to point out what they take the iniquity of the US to be. In doing so, they villify the dead who have fallen for the country they take to be evil and they cause a great deal of pain to the families.

They are horrible and dastardly people. And, I imagine, if there is a Hell, they will be quite welcome in it. (It seems to me that Jesus said something about mistreating orphans and widows.)

But the issue that is important legally is whether they have a right to their very distasteful protests. Snyder's argument was that his privacy was invaded. But of course, they didn't enter his home; they didn't trespass, or at least that's not the claim. The attorney for the Snyder's rightly called the Phelpses bullies who attack the weak, and asked for a high judgment from the jury "that says don't do this in Maryland again. Do not bring your circus of hate to Maryland again." That seems designed to chill speech, hateful speech to be sure, but speech, indeed.

As much as I hate their message, it seems to part of me, that it is the really hateful messages that test our commitment to the ideas expressed in the Bill of Rights.


Anonymous said...

Phelps and his kith and kin spend more time and energy thinking about homosexuality and gay sex than a whole circuit party and RSVP cruise of gay men combined


Johnny B Animation said...

there are limitations to the rights held under free speech which is why there is even a precident to stand on to file suite

Tyler Hower said...

But the limitations historically have been limited to national security (you can't reveal secrets, unless it's part of the White House's plan), public safety (the famous "fire" in a theater example), inciting a riot (you can't get a crowd worked up to go burn down houses, at least not directly) and fighting words (basically getting a reasonable person so worked up that they commit assault against you). I don't think that there is anything noble about the Phelps crowd, but since I do tend to feel that our civil rights are being whittled away, cases like these, though they seem to be in the cause of good, actually represent the thin end of the wedge for a system in which lots and lots of speech becomes regulated. If they are stopped, why not the anti-war protesters across from the White House who make tourists and some veterans uncomfortable, then why not parades in support of causes that people find distasteful? What is the principled reason to stop this "hate speech"?

Anonymous said...


You can make a claim under IIED, Intentional Infliction of Emotional Duress (which I believe they did here) and sue for damages but the basic element is extreme and outregeous. It is an INTENTENTIONAL TORT - whereas the First Amendment may not be an adequate enough remedy when you instigate emotional duress.

The flip side is that the duress has to have objective manifestations of severity - meaning to a reasonable person the infliction was so severe that it would automatically trigger the duress. Here, I don't think the Phelps (who represent a bunch of crazies to a reasonable person)that it constituted that level of severe, bold infliction. If a jury decided it did, then I would imagine an appeals court would review de novo, and let it stand on its own. If there was a punitive charge against the phelps and I think there was, punitive damages is not a measure of damages to adequately compensate the plaintiff, but TO PUNISH the defendant. My take on it is that the 11 million (was it) constitutionally under the BMW case was excessive - in other words puns cannot be more than 3x the amount of actual damages...