Civil libertarian litmus test - Shirley Phelps

Seems pretty open and shut to me. I might be missing something, of course. I side with the Phelpsians. Never mind that it was a private lawsuit. I think that the plaintiff carried the day - especially to the extent he did (eleven million dollars) - only because the defendant's speech is politically incorrect in the extreme. Moreover the plaintiff was open about the political motivation of the lawsuit. He described himself as intending to suppress hate speech that reached public ears.

Albert Snyder sued the Topeka, Kan., church after a protest last year at the funeral of his son, Marine Lance Cpl. Matthew Snyder, who was killed in Iraq. He claimed the protests intruded upon what should have been a private ceremony and sullied his memory of the event.

A jury agreed. On Wednesday, the church and three of its leaders - Fred Phelps and his two daughters, Phelps-Roper and Rebekah Phelps-Davis - were found liable for invasion of privacy and intent to inflict emotional distress. Jurors awarded Snyder $2.9 million in compensatory damages and $8 million in punitive damages.

Snyder, of York, Pa., said he hoped other families would consider suing.

"The goal wasn't about the money, it was to set a precedent so other people could do the same thing," he said.

Appearing on NBC's "Today" show Thursday, Sndyer said that while his son was fighting for freedom for Iraqis, "my son did not fight for hate speech.

"And that's basically what it is," he said of the church's protest. "Everybody's under the impression that the First Amendment gives them the right to do anything, say anything any where, any time. And along with the First Amendment also comes responsibility."

Snyder said that on the day of the funeral, he didn't see the protesters or their signs, only the tops of the signs. "But a lot of people at the church did see it," he said. "And it was splattered all over the newspapers the next day."

As I read it, the lawsuit wasn't to recover damages ("wasn't about the money"), it was to suppress a certain political message in the present and the future ("it was to set a precedent", "he hoped other families would consider suing"), because of its content ("hate speech"), so that it would not reach the public ("splattered all over the newspapers"). His lawyer's comment emphasizes that the real offense was the content of the speech:

Trebilcock later called the verdict "Judgment Day for the Westboro Baptist Church."

"They're always talking about other people's Judgment Day. Well, this is theirs," he said.

My emphasis. Meanwhile, the Phelpsians are in some additional legal trouble. Here, too, I'm convinced that the underlying offense, what reallly has landed them in trouble, is the abhorrent content of their message. Personally, I find their message so over the top that it's amusing rather than offensive. Especially the song. It might be mistaken for a comedy bit, if it didn't go on so long.

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That music video literally


Are you thus opposed to intentional infliction of emotional distress and invasion of privacy tort claims as a rule (those being the two theories the Phelps were sued under)?  That's fine, but as a matter of law, the First Amendment doesn't appear to extend to such situations.

That music video literally made me laugh so hard I crapped a newborn baby.