Smackdown on Fred Phelps and the WBC
Nov. 2nd, 2007 09:47 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
meadmakerFred Phelps and the Westboro Baptist Church - the "God Hates Fags" people who protest at such venues as the funerals of babies who have died of AIDS related complications, military funerals, etc. - have just been held liable in a civil lawsuit for $2,900,000 in compensatory damanges plus $8,000,000 in punative damages. This more than bankrupts the organization - the compensatory damages alone would do that.
On one hand, I'm quite happy that the assholes have received a smackdown. I vehemently disagree not only with their message, but with their delivery.
On the other hand, the legal implications bother me a little. The idea of freedom of speech means that you're allowed to say something entirely unpopular yet be legally supported in doing so. This says that if your unpopular idea can be emotionally distressing, your speech might not be guarded.
Of course, from what I know of the WBC people, the likelihood is that they went far beyond polite picketing. These people likely went in for up-in-your-face verbal assaults, trespassing, invasion of privacy, and other forms of uncultured behavior. I don't have any details beyond that article, but I'd not be surprised if it turns out that they stepped over the line from "saying something unpopular" toward the classic "yelling fire in a crowded theater" public nuisance, or toward personal attacks and abuse. They don't seem to have a lot of respect, nor taste.
On one hand, I'm quite happy that the assholes have received a smackdown. I vehemently disagree not only with their message, but with their delivery.
On the other hand, the legal implications bother me a little. The idea of freedom of speech means that you're allowed to say something entirely unpopular yet be legally supported in doing so. This says that if your unpopular idea can be emotionally distressing, your speech might not be guarded.
Of course, from what I know of the WBC people, the likelihood is that they went far beyond polite picketing. These people likely went in for up-in-your-face verbal assaults, trespassing, invasion of privacy, and other forms of uncultured behavior. I don't have any details beyond that article, but I'd not be surprised if it turns out that they stepped over the line from "saying something unpopular" toward the classic "yelling fire in a crowded theater" public nuisance, or toward personal attacks and abuse. They don't seem to have a lot of respect, nor taste.
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Finally!
Date: 2007-11-02 02:23 pm (UTC)(no subject)
Date: 2007-11-02 02:43 pm (UTC)They will, and with some justification, claim that there is little privacy for an event that is held in view of the public, and uses public roads.
I agree.
One can no more claim that the Phelps violated someone's privacy than protesters against Bush and Co. are trying to do, until they run into the requirement to work in the "protest zone".
How about emotional distress?
Date: 2007-11-02 02:49 pm (UTC)Back on to the privacy question, do you know whether a cemetery would be private? (Ignoring any state-owned and state-run ones, like Arlington.) If so, would that mean that WBC could be barred from entry, and have to settle for camping out on the access roads?
Re: How about emotional distress?
Date: 2007-11-02 02:54 pm (UTC)First and foremost, show me where anyone is guaranteed to be free from emotional distress.
the father of the marine didn't actually notice the Phelps protest until days after the funeral, and he successfully sued them because the publicity "upset him".
If so, would that mean that WBC could be barred from entry, and have to settle for camping out on the access roads?
Actually, that IS what WBC does.
They know their law better than any of the families holding the funerals.
Re: How about emotional distress?
Date: 2007-11-02 03:07 pm (UTC)Re: How about emotional distress?
Date: 2007-11-02 04:17 pm (UTC)Re: How about emotional distress?
Date: 2007-11-02 11:43 pm (UTC)This was a civil case. It bypassed completely whether or not the Westboro Baptists had the *right* to say what they did (which they do) and addressed the matter of whether they should be held accountable for the effects of their exercise of free speech. That he didn't notice at the time mitigates his argument somewhat, but the burden of proof for 'emotional distress' is on the plaintiff in a case like this, so he had to establish to the court's satisfaction that his distress wasn't just a matter of having his feelings hurt.
The 'free' in 'Free Speech' doesn't mean it's free of consequences. The Phelps' protests meet a number of the criteria for abusive and injurious speech, which they've successfully avoided being called on so far because people tried to attack them in criminal courts and with legislative action - both of which the Constitution rightfully protects them from. However, the Constitution doesn't protect you from civil trial - for defamation, for example. There is by no means a blanket assumption that all speech is protected. It doesn't protect you against a charge of slander, or libel, or incitement to riot, and it doesn't protect you from civil redress for verbal assault, provided malice and damaging effect can be proved.
I like this verdict, because it says, "Prevent you from speaking your mind? I wouldn't dream of it. Force you to accept accountability for your words? Absolutely."
People pull this 'sticks and stones' defense, but it's not true. Words and images can be incredibly emotionally damaging, especially to someone already engaged in the grieving process.
I believe this establishes where the line between 'freedom to speak' and 'freedom to verbally abuse' exists, and I'm glad to see that, because abuse masquerading as First Amendment freedoms ultimately weakens the Constitution.
Love,
Rowan
Re: How about emotional distress?
Date: 2007-11-03 12:05 am (UTC)Actually, considering some of the wording by the judge, yes, he does say that he hopes to prevent someone from speaking his mind:
In his instructions to the jury U.S. District Judge Richard Bennett stated that the First Amendment protection of free speech has limits, including vulgar, offensive and shocking statements, and that the jury must decide "whether the defendant's actions would be highly offensive to a reasonable person, whether they were extreme and outrageous and whether these actions were so offensive and shocking as to not be entitled to First Amendment protection."
I think that is a very slippery slope, because the judge DID say that the first amendment doesn't protect SOME offensive speech.
Defamation and slander require you to show injury.
Emotional injury is an EXTREMELY slippery slope.
Let's sue rap artists for using the word ho and nigga.
Re: How about emotional distress?
Date: 2007-11-03 04:40 am (UTC)I find that hyperbolic and inflammatory, and not remotely relevant to the point that I was making. Please don't insert pro-censorship arguments into my statements that were never there to begin with. If you knew me, you'd find that I'm a staunch defender of the right to free speech, even when I deplore its content.
If someone could prove that the deliberate use of 'ho' and 'nigga' caused them verifiable emotional distress, and that said use was conducted with deliberate malice and intent to cause them direct harm, then absolutely the object of that malice has a right to seek civil redress. We shouldn't 'let's' do anything with this. Your statement may have been flippant, but it disregards the core of the matter:
Your right to free speech ends at the point where your exercise of that right demonstrates provable malice and damage to someone else. The judge's instructions relate to just that, that there are standards of what will and will not be considered injurious. The Westboro Baptists crossed that line, and I don't believe it's a 'slippery slope' (how I despise that particular buzzword!) simply because the plaintiff is required to meet the burden of proof on the standard, and because 'hurt feelings' aren't enough to meet that burden. Don't disregard the importance of the malice standards here. Part of the burden of proof on the plaintiff requires demonstrating that the defendants acted with the knowledge that their statements could reasonably be perceived as injurious. This isn't a matter of playground taunts, here. This is the calculated verbal abuse of the deceased and his grieving family in an effort to provoke public opinion by causing an emotional response. The difference, I believe, is significant enough to stand on appeal.
The amount will likely be reduced, but I think the verdict itself is sound.
Love,
Rowan
Re: How about emotional distress?
Date: 2007-11-03 12:11 am (UTC)Community doesn't approve of your speech, you're shunned.
Grocery stores, which are privately owned, refuse to accept your business. You starve.
Community pressure, and MORE speech, are the counters to hateful speech.
I say this because I have been on the line, counter-protesting them, with the Patriot Guard Riders.
On a day that was below freezing, with wind chills below zero, I stood along a funeral procession route that they had announce they would be lining.
I marched three miles to a cemetery on that cold, blustery day, carrying a parade sized american flag.
Re: How about emotional distress?
Date: 2007-11-03 04:44 am (UTC)I only wish that for the nigh on a decade I wept for AIDS victims whose funerals the Westboro Baptists chose to mock, their grieving families had had similar advocacy and public support.
(no subject)
Date: 2007-11-02 04:18 pm (UTC)