Never, in the worst of my worst nightmares, did I think I would ever have to write anything at all defending Fred Phelps.
But it looks like I do.
Dammit, dammit, dammit.
Quick precis, for those who don’t know the story: You know Fred Phelps? The evil, hateful, repulsive nutjob who pickets the funerals of prominent gay people, with signs saying things like “God Hates Fags”? Who lately has been picketing the funerals of U.S. soldiers killed in the Iraq war, on the grounds that their deaths are punishment for the nation’s tolerance of homosexuality? (I told you — evil, hateful, repulsive nutjob.)
He — or more accurately, his church — was recently ordered to pay nearly $11 million in damages, in a civil suit filed by the father of a soldier whose funeral Phelps picketed. The suit was won on the grounds that the picket constituted “invasion of privacy and intent to inflict emotional distress.”
And I’m finding myself very disturbed by this.
Don’t get me wrong. I am feeling a certain amount of visceral Schadenfreude about the decision. I won’t deny that. As Molly Ivins once said, “Mama may have raised a mean child, but she didn’t raise no hypocrites.” But as much as I personally enjoy seeing the bastard suffer, I am far more disturbed by the extremely chilling effect that this decision could have for freedom of political speech and expression.
For all of us.
And that’s a whole lot more important to me than my personal Schadenfreude.
According to the reports I’ve read, this was not an Operation Rescue type of deal. There was no disruption of the service, no getting three inches from the mourners’ faces to scream at them. The plaintiff himself said at the trial that he didn’t even see the protesters or their signs at the funeral. They kept their hateful, repugnant protest a reasonable distance away. So the invasion of privacy thing seems to be pretty much bullshit. It’s the “intent to inflict emotional distress” that’s the real core here.
And when it comes to political and religious speech, I think the infliction of emotional distress is — and should be — a guaranteed, First Amendment-protected right.
Take a look at my Atheists and Anger piece. And take a look at the deluge of comments. 749 comments as of this writing, and still climbing. Almost half from people who were very emotionally distressed indeed by the piece. I knew when I wrote it that the piece would inflict emotional distress on a lot of people (although I didn’t quite expect the deluge)… and I wrote it anyway.
I want to be able to write like that again without being sued.
Not a perfect example, I’ll admit. People come to my blog voluntarily (although some of them seem to have forgotten that fact), so it could be argued that I didn’t inflict anything.
So let’s use a different example. I want the right to picket church services with a sign saying, “How’s Your Invisible Friend Today?” To picket the opening of a new steak restaurant with signs that vividly describe slaughterhouse conditions. To picket George W. Bush’s eventual funeral singing, “Ding, Dong, The Witch Is Dead.” I probably wouldn’t do any of those things, since I’d consider them in bad taste; but I think I should have the right to do them.
And if this ruling stands, I might not.
Free speech is a human right, one of the central foundations that this country was built on. And that’s not just true when the speech in question goes the way we want it. The First Amendment does not exist to protect popular speech. It exists to protect unpopular speech. That’s the whole point. We don’t need Constitutional protection for our right to publish apple pie recipes or pictures of cute puppies. We need Constitutional protection for our right to say things that make people flee in horror… from “God Hates Fags” to “Gay Is Beautiful,” from “Stop the War” to “Bomb Them Into The Stone Age,” from “God Wants Our Soldiers To Die” to “God Does Not Exist.”
And the more I think about this case, the more I think it’s bad strategically as well as ethically. And for much the same reason. I think this case can and will be used by the Right to argue that queers are demanding “special rights.” “Sure, they want First Amendment protections for themselves,” they’ll say. “But they sure are quick to get off their First Amendment high horse when it’s someone they don’t like!”
And they’ll be right to do so.
I mean, I think that. I’m saying that right now. And I’m queer.
If you want to make an argument that this ruling doesn’t violate the First Amendment, then I’d be very open to hearing it. I’m the first to admit that I’m not a legal or Constitutional scholar, and it’s possible that a reasonable case could be made that the Phelps protests are not protected speech under the First Amendment.
But I’ve seen too many arguments on this topic that say, “Free speech isn’t an absolute right, there are limits, look at libel laws, fraud laws, etc.”… without making any argument for why this particular case should be one of those limitations. Other than just, “The speech is hateful.” So far, nothing I have read on this particular case suggests any interpretation other than, “the plaintiffs are getting $11 million because they were upset by the content of Phelps’s speech.”
Deeply upset, and rightfully so. I get that. But again, that is exactly the sort of situation that the First Amendment is meant to protect.
And I’ve seen too many arguments on this case that essentially say, “First Amendment, Shmirst Amendment — I wanna see this bastard go down.” I would respectfully like to suggest that that is one lousy argument. The First Amendment is not to be casually tossed aside when it happens to protect a repulsive creep who we want to see fry.
A lot of progressives, people who are normally all over the First Amendment/free speech thing, are unusually willing, even eager, to drop their love of the Amendment in this particular case. And I understand the impulse. This particular case — this particular person, this particular group — makes people profoundly angry and upset. It makes me profoundly angry and upset. There’s a part of me that would love for some Constitutional scholar to come up with some legal loophole in the First Amendment, just so I can feel good about watching this bastard go down in flames.
But once again — that’s the whole point. The First Amendment to protect speech that makes people profoundly angry and upset.
See, this case is not just about a delicate legal nitpick. It’s not just about practical political strategy. It’s not even just about the pragmatic, enlightened self-interest desire to protect other people’s First Amendment rights so our own will be protected. This case is about the basic ethical principle of free speech. And it’s about whether we care enough about that principle to defend it, even when it hurts. It’s about whether people have the legal right to say what they want, no matter how vile or upsetting we find it… simply because they do.
So do we really have to defend this guy? Do we really have to stand up and say, “Yes, Fred Phelps has the right to go to funerals and carry signs saying ‘God hates fags’ and “Thank God for dead soldiers’?”
Yes. We do.
We have to stand up and defend anyone who’s trying to communicate an unpopular message that profoundly upsets people. That includes a lot of horrible, evil people with repulsive ideas. But that’s the whole point of the First Amendment. It doesn’t exist to protect popular speech. It doesn’t exist to protect Cute Overload. It exists to protect speech that makes us want to vomit.
Sorry.
Award over funeral protest may not stand
http://www.latimes.com/news/nationworld/nation/la-na-protests2nov02,1,1442204.story?coll=la-headlines-nation
Slander?
This was a federal funeral. There have been laws passed regarding picketing federal funerals in some states.
Also: While one’s free speech is guaranteed by the first amendment, you’re still responsible for the contents of that speech. If your speech incites a riot, you’re responsible. If your speech causes severe emotional trauma, guess what? You’re responsible.
Oh, and, the privacy invasion charges were from a post he had on the website, I think. It’s down ATM, so I can’t check.
i appreciate your blog. i understand where you’re coming from and in a way i think i fully agree. so firstly, thank you for making me think…
on another note… (trying to think here…) the one most important thing i believe in is individual liberty. i believe that every person should have the right to do whatever they want so long as they do not harm anyone in doing so. i would here invoke john stuart mills’ harm principle. google it. and i don’t know if what phelps and his cronies did can be classified as harm in this case… perhaps it can. i assume to a degree emotional harm can count, though most things most people do will upset someone in some way, and most of the time i’d say tough shit for them.
just a thought i wanted to add, i guess.
Well reasoned 🙂
Of course, Phelps is completely right. We *should* thank God for dead miners. Assuming that the all knowing all powerful God exists, of course. If he does, it’s all his fault, right? We should thank God for terrorists and nuclear weapons too. And cancer and AIDS. Sure little cute bunny rabbits too, but I’m not sure that sort of schizophrenia is a good thing in a God.
And yeah, if God exists, he hates you. And undoubtedly me too. In fact, I must admit that of God exists us, he must truly hate all of humankind. Except possibly Fred Phelps.
And worshipping that type of God is not really on my agenda. 🙂
As per usual, I have to respectfully disagree with you position… This was a funeral. This is different then protesting outside a federal building, a place of business, or on public property. The intent was to disrupt the funeral, regardless of how successful they were.
This is akin to protesting outside the House of Ruth with signs about a wife’s submission to her husband. Something like this is done for the express purpose of hurting others and should not be protected by law.
– John
A church group protested on the steps of city hall during my wedding. My freaking wedding! My most personal, joyous, treasured moment.
And they had every right to do so. I mean, they were assholes, but they were assholes protected by the First Amendment. And as someone who treasures and believes in the First Amendment with a love that verges on obsession, I’m glad they were not arrested or sued, because if they were, then I could be arrested or sued for protesting outside City Hall on some other occasion. As for Phelps, I prefer it when he is in plain sight. The moment he stops protesting is the moment I start worrying that he’s decided to bring on the End Times himself.
Thank you for this article. It’s made me realize how easy it is to simply succumb to personal desire instead of looking at the bigger picture. This is something I vent at others for and I’ve gone and done the same thing by reveling in this decision and the thought of them bankrupt.
I’m no lawyer nor constitutional scholar, but: Does it make a difference that they were not arrested or otherwise prevented from making their speech at the time; but that a civil lawsuit was brought after the fact to make them responsible for the consequences of their speech?
Maybe it amounts to the same thing — “suppression” by any other name… but in my untrained mind, it’s different.
I am very much a proponent of free speech – in fact, it’s maybe the thing I’m most passionate about. What’s more, I also agree that freedom of speech exists to protect unpopular speech, and no one has the right to not be offended. However, although you make a compelling argument, but I must respectfully disagree with you. IMO, picketing at a funeral isn’t a political statement, it’s harassment and intimidation. To my mind, it’s the equivalent of burning a cross in front of a black families’ home. I don’t believe harassment and intimidation should be protected forms of speech, and while I know a lot of people will say it’s a slippery slope, I don’t believe that protesting at a funeral is the same is writing something in a blog, saying something on tv, or marching in a protest.
And Rebecca, though I admire your attitude, I must respectfully disagree with you as well. I don’t equate protesting in front of city hall to protesting at your wedding. You’re not the government, you’re a private individual, and so to my mind, protesting at your wedding isn’t a political statement, it’s a personal attack intended to intimidate and harass you.
These are simply my personal opinions. I’m not a legal scholar, and so this isn’t meant to be an opinion on the consitutionality or legality of this case.
” It’s the “intent to inflict emotional distress” that’s the real core here.
And when it comes to political and religious speech, I think the infliction of emotional distress is — and should be — a guaranteed, First Amendment-protected right.”
I don’t know if I agree with you here.
I’m all for First Amendment rights. I’m all for Fred Phelps having the right to protest, as much as I truly hate his message. Hell, I’ve counter-protested him before in person.
But the right to inflict emotional distress? I’m not so sure about that.
If we guaranteed that right, how would we prosecute and punish verbal harassers? If they have a right to inflict emotional distress expressing themselves, then they could say “Oh, calling that other kid a faggot repeatedly was just me using my First Amendment rights to expression.” or “Repeatedly telling that person that I found them sexy was just me using my First Amendment rights. They had no right to tell me to stop saying that… it was protected speech!” And how far would it go to then protect actions as expression? Obviously an extreme example, but “Bashing that queer was me expressing myself.” What about people who are so affected by emotional distress inflicted upon them that it’s taken them months or years of therapy to undo the damage? Lost wages because of lost sleep because of night terrors? You see where I’m going with this.
I don’t think outlawing it is the answer, but I don’t know if it being someone’s right should be legal either. There’s a gray area here, and the sensible answer is somewhere between complete illegality and full legality of this.
That’s why I said, “when it comes to political and religious speech, ” c4bl3fl4m3.
Of course the First Amendment doesn’t protect someone who’s screaming under my window at three in the morning. Of course it doesn’t protect personal harassment and threats.
But a political picket is a different matter.
That’s why I’m confused by David’s point, “I don’t believe that protesting at a funeral is the same is writing something in a blog, saying something on tv, or marching in a protest.” The Phelps people *were* marching in a protest. That’s *exactly* what they were doing. The fact that it was at a funeral makes it repugnant… but I don’t see how that stops it from being protected political expression.
ripped from a forumer’s (EvilMoogle) reply to the link to this blog that I posted:
“LAW:
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:
The elements of a prima facie case for the tort of intentional infliction of emotional distress are:
(1) outrageous conduct by the defendant;
(2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress;
(3) the plaintiff’s suffering severe or extreme emotional distress; and
(4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.
Let’s look over it point by point. Would the average person consider a protest intended to disrupt a funeral “outrageous conduct”? Clearly.
Was the protest intended to cause or ignoring the probable cause of emotional distress to the people attending the funeral? Clearly
Did the people attending the funeral suffer emotional distress? Presumably (based on the “guilty” finding by the jury).
Was the action (the protest) the cause of the emotional distress? Clearly
This is a cut and dry case. And is vastly different from people walking by a protest being offended. Stop trying to compare the two.
This is a calculated act, and it’s time he was punished for it.”
And I agree with him.
I despise Phelps and what he stands for. And his whole filthy clan.
But I too am troubled by the idea that we can shut them up just because they are horrible and hateful.
Can I be sued if I hold up a sign that says Phelps is a detestable human being? That’s not slander. He is detestable. As evidence, I offer the fact that I detest him.
Is it just because this picket was at a funeral, and therefore in grotesquely bad taste? I’m not sure such niceties are found in the First Amendment. I’m not sure they should be found in our interpretation of it either.
Even though I never read about this case earlier, it makes a lot of sense. First they will come after the nutjobs, then after the political protesters (like people having a picture of a German minister on the T-Shirt with the words STASI 2.0 below it). You are quite a courageous person! Another thumbs up for you!
I see your argument, GrimaH. The problem is that laws that were intended to stop personal harassment and abuse are here being used to silence political expression.
In other words: By your argument, I could be sued for emotional distress if I picketed a church service — a wedding or a baptism, say — with signs saying things like “Religion Is Evil, All Believers Are Evil Or Insane.” (Just to be very clear: I wouldn’t do that, mostly because I don’t think that. I’m just using it as an example.)
Would most people consider that outrageous? Did I mean to inflict distress — or know that I would probably inflict distress, and do it anyway? Would it likely cause distress? And would I be the proximate cause of that distress? Yes on all four counts.
Should I be sued into bankruptcy because of it? No. It’s protected political speech. Or it should be.
“Though I do not agree with what he says, I will defend to the death his right to say it.”
Everyone who is cheering over Phelp’s downfall would do well to remember this.
–Voltaire–
Great post. I am a big on the first amendment as well, and I believe everyone should voice their opinions (even if they are lame). You can go on television, you can write a blog, you can picket in front of the department of defense and even the white house. But you cannot picket and disrupt a private individuals life. You cannot picket outside of my home because I work at planned parenthood. You can picket outside my office, you can picket the supreme court, but even freedom of speech has limits. If you are a racist you can have a television program all about how evil a minority is, you can picket outside the Equal Opportunity Office, you can hang nooses on your front lawn, but you cannot go to a black persons home and picket across the street. Everyone has a right to privacy, and everyone has a right to mourn the death of a young soldier. If you want to picket outside a church..thats fine. But you can’t go to a funeral home to picket at a pastor’s funeral. Somehow, we have to coincide a right to privacy and freedom from harassment, with freedom of speech.
That’s why I’m confused by David’s point, “I don’t believe that protesting at a funeral is the same is writing something in a blog, saying something on tv, or marching in a protest.” The Phelps people *were* marching in a protest. That’s *exactly* what they were doing. The fact that it was at a funeral makes it repugnant… but I don’t see how that stops it from being protected political expression.
Sorry, that was badly written on my part. When I said “marching in a protest” I was thinking of, say, the kind of protest marches you see on city streets or in front of the White House or a corporate office. I just forgot to spell that out.
Anyway, Sabrina pretty much made the point that I’m trying to make: there are things which are essentially private life – funerals, weddings, your front lawn – and so I don’t believe that protesting them is a legitimate form of political expression. I think it’s harassment. You see the danger in this ruling having a chilling effect on free speech, but I see the danger in the opposite: when you allow people to protest weddings and funerals and such, to me that suggests that there is no barrier between private and public life. What’s to stop me then from constantly harassing someone and claiming that it’s protected speech?
While I think free speech rights are incredibly important, I also think that the right to privacy – even though it’s an unwritten right – is just as important, and there has to be a balance between the two.
Hear, hear!
I haven’t read the actual court case, so I don’t have a specific opinion, but I err strongly on the permissive side. It’s not tolerance until it’s tolerance for things you don’t like.
“Congress shall make no law … abridging the freedom of speech” includes the indirect ones, like the civil tort laws.
And I might just want to picket his little church with a kiss-in and “God loves fags” signs.
It’s bizarre how people seem to keep trying to find loopholes in the fundamental law of morality: treat others as you want to be treated. What’s sauce for the goose is sauce for the gander.
The very first question to ask about a proposed law is “how would I like that principle applied to me?” Don’t say nothing just because you’re not a communist, or a social democrat, or a trade unionist, or a jew… think about the principle.
I admit that there are people who seem to have been granted a “get out of jail free” card, but I assert – with no divide backing – that that’s FUCKING IMMORAL.
(Deep breath.)
That said, it’s possible that Phelps stepped over a reasonable line, but he does have a lot of experience dancing at the edge of it. So I wonder.
“While I think free speech rights are incredibly important, I also think that the right to privacy – even though it’s an unwritten right – is just as important, and there has to be a balance between the two.”
–David–
Free speech is such an important right, it was written out explicitly in the constitution. Privacy was not as important of a right and was merely (and barely) inferred. Free speech trumps privacy any day of the week legally for this reason.
I also would like to point out that a Cemetery is a place of business, so to speak. Plots of land are sold and money is traded for services on said properties. Therefore, since it is not privately held property, but rather commercial, it does not get the right to privacy.
Also, if you are in your front yard naked, and someone snaps a picture of it, it is your fault and you are not protected by privacy rights. If you are outdoors in plain view of a public venue (such as a road, or mall, or anything else considered a public place), you are not protected.
Phelps is a vile man whom I (and many others) would love to see off the face of the Earth (preferably via a high powered cannon); but I will not sit idly by while his rights are taken away because my rights might just be next in line to be ‘revoked’ just because someone goes not agree with me.
Ok I have a really silly question….
If Phelps has the right to scream his hate at a funeral, could he or shouldn’t he also do the same at hospitals during the birth of a child? Why wouldn’t he also scream and protest at births? Shouldn’t we challenge him to do the same at hospitals across the country?
I think that might bring this debate full circle, not sure, but just a thought……
Come on people, lets get Phelps to protest the births, not just the deaths!
Thank you my darling. You have once again taken the high road that fundie’s insist you cannot find. I appreciate your candor and your honesty in admitting that as much as what’s his ass sucks, everyone has the same rights and responsibilities, and no matter how much we DISlike the shit some people believe and tout and do….they have rights that extend to those things too.
Thank you for shining not only intellectually, politically, as a critical thinker and advocate, but also as a woman of great strength in character and morals.
I adore you!
This is fast becoming my favorite blog, due in large part to the intelligent, respectful debating that your writing inspires.
I thank you, Greta Christina, and your commenters for popping my revenge bubble and making me actually consider the situation. I felt uncomfortable about the First Amendment ramifications, but too quickly allowed myself to fall into the invasion of privacy/emotional distress camp. I’m not entirely sure I won’t stay there, but I need to research first.
I think the deciding factor may lie in how far away he was. Until I read your post I just assumed it was a matter of feet with angry hate speech forced upon the attendees. That may not be the case. If it is, I would agree with GrimaH’s breakdown of the emotional distress law. But I was in a protest when Cheney came to my town, and even though we were at the location where he was speeking, we were relegated to an area where no one would see or hear us (Bush’s America).
To Erin, I too am untrained in the legalities, but with regard to suppression, ultimately, I don’t think there’s a difference between an immediate arrest and a later civil suit. Phelps was spouting his opinions about soldiers in general and not specifically slandering any individual. Maybe I’m paranoid, but I could see this suit used as precendence to suppress all manner of protests, or extremely, it could evolve into a situation where only the very wealthy or heavily insured would feel comfortable in protesting.
I do think that the “there’s a line between free speech and privacy, and Phelps crossed it” argument is about the best anti-Phelps argument I’ve seen in this debate. But I have two arguments against it.
One: Funerals are not, generally speaking, private events. I know that sounds counter-intuitive, but it’s true. In most cases, anyone can go to any funeral. I could look up funeral announcements in the paper and go to pretty much any one.
There are some exceptions — state funerals and funerals of famous people being the most obvious ones, they’re made private for security and crowd-control reasons. And if you held your grandpa’s funeral service in your house, that would be private. But a regular funeral in a public place like a church is not actually a public event.
Two, and maybe more importantly.
Here’s how invasive the Phelps clan was of the plaintiff’s privacy: The plaintiff *didn’t know they were there.* The plaintiff didn’t find out about the protests until he read about them in the paper the next day.
I agree that there’s a line between the right to free speech and the right to not have your privacy invaded. And I agree that that line can be hard to define. But picketing a public funeral, and staying so far away that you can’t actually be seen from the church door… I think that stays on the right side of the line.
“If Phelps has the right to scream his hate at a funeral, could he or shouldn’t he also do the same at hospitals during the birth of a child? Why wouldn’t he also scream and protest at births?”
–Jim-n-im-too-lazy-to-copy-paste-the-rest–
He could, provided he did it outside of the hospital. Since the interior of a hospital is not a public place, he cannot protest there. He can protest any where he wants provided it is in a public venue.
If you don’t believe hospitals are not a public place, try walking around in one someday. You will be summarily thrown out. HIPPA and all that other ruckus.
Also note that the interior of a hospital is someplace where a person is generally guaranteed a certain degree of privacy since it cannot be seen from a public venue such as a road, park, street, et cetera.
I agree with you, Greta Christina. It’s not a matter of supporting Phelps, though, but of supporting his right to free speech. Which is also my right to free speech and yours and everyone else’s. Even Nat Hentoff’s.
Someone back there wrote, “If your speech causes severe emotional trauma, guess what? You’re responsible.” So, let’s see, leaving aside the severe emotional trauma that your cavalier attitude toward civil liberties causes *me*, if my participation in a gay rights protest causes someone severe emotional trauma (my husband left me to have mindblowing nonstop anal sex in San Francisco! how can you support gay rights? I’m severely traumatized! where do I sue?), or my participation in an antiwar protest (how can you say that my government and my boy in the Army are doing something wrong!? I’m traumatized! where do I sue?)… well, maybe you get the point. Some people are conveniently very vulnerable to emotional trauma. As a leftist gay atheist in this society I ought to be a basket case; but somehow I’m not.
I think too that if Phelps were going to get in trouble for his conduct, the time to do it would have been when he was picketing civilians. The fact that it only happened when he went after sacred dead soldiers makes me very suspicious. Not only do I believe in free speech, but I believe that soldiers are no better than anyone else, and their funerals are no more sacrosanct than those of an ordinary fag who died of AIDS.
Oh, and the use of the word “hate” in many of these comments. I think hate is just fine. The people who get the most distraught over “hate”, I’ve found, tend to be the most hateful human beings around when they’re going after targets *they* consider suitable.
Was the suit a civil or a criminal suit? I cannot imagine that it was criminal, because no matter how disgusting, you are correct: the Phelps’ speech is entirely protected and we should defend that. But if it was a civil suit, I think it becomes stickier. Civil suits are the very place to express that you are butthurt because some dickhead did something dickheaded. Things like ’emotional distress’ and ‘intent to be big meanie pants’ seem to be common in these sorts of suits, and don’t appear to have jack shit to do with actual ConLaw.
If it was a civil suit, I think the parents of the dead soldier have just as much of a right to sue Phelps for being a jerk and hurting their feelings as he does to protest in the first place. And that is the extent of my opinion. I know too little about the law to know if the ruling was correct.
This thread (and the ensuing discussion) reminded me to a certain extent of a research project/presentation I did a little while ago about white supremacist groups on the web.
While there are definitely differences, private citizens have used civil suits as a way to bankrupt some hate groups out of organized existence. Of course, in general the cases were made for wrongful death of people killed because of the speech involved, so I’d say that’s a clear difference. But on the other hand, what has often happened is that legal, civil, and anti-defamation leagues have waited until they could find someone willing to bring a suit in order to specifically stop an organization.
At the end of the presentation everyone was saying: “so do *you* think that this speech should be protected?” At least in this case, I fall in the camp of, “well yes, unless they’re instigating violence.” (and same with Fred Phelps).
I guess I wonder what ya’ll feel about something a little murkier (hate groups), or do you think it’s a clearer case one way or another?
Totally with you on this. It’s the same with NAMBLA, extremist muslims and so forth; no matter how disgusting, repulsive and downright insulting I may find their views, they have as much right to hold and express them as I do to disagree with them. I think Orwell put it best:
“If liberty means anything at all, it means the right to tell people what they do not want to hear.”
I’m so glad I found you through the Humanist Symposium on Letters from a Broad.
Thank you for pointing out this important issue, and with such visceral clarity.
It’s hard not to get depressed about the loss of civil rights in the US, especially when the undermining could come from good intentioned punishment of hateful speech.
I’ll follow the issue and do what I can to support the 1st Amendment, no matter how hateful the free speech might be.
David
Good quote, Sqrrl101. Although I prefer “A free society is one where it is safe to be unpopular.” (Adlai Stevenson)
sil-chan:
As I said, I’m not offering an opinion on the legality or the consitutional merits of this case. I’m aware that the right to privacy isn’t enshrined in the Constitution. I acknowledged as much when I refered to the “unwritten” right of privacy. Despite the fact that it’s unwritten, I’d guess that it’s a right most Americans consider as important the right to free speech.
Also, if a cemetary is commercial property, then while it isn’t private, it isn’t exactly public either. But anyway, whether or not the land itself is public isn’t really relevant to my point, since I’m basically saying that there are certain… well, things, where privacy should take precedence. Weddings, funerals, and other things like that where, although they’re held in public places, there should be a reasonable expectation of privacy. No, you can’t stop someone from snapping pictures of a funeral, but I’d say there’s a big difference between taking pictures and staging a protest (I also think that there’s a big difference between walking around naked in your front yard and a funeral, but that’s getting off the track somewhat).
And ultimately, while I’m very wary of situations where the curtailing of freedom of speech in one situation might lead to the loss of it in another – and there’ve been plenty of situations like that in the last few years – I simply don’t believe that Phelps being punished for carrying on at a funeral is a step on the road to our freedom of speech being taken away.
Greta:
Other than the free speech rights argument itself, which is compelling, the fact that the funeral-goers weren’t aware of the protest at all is the most compelling argument I’ve heard that this was a bad ruling. That said, if the protesters were in clear view of the family, would that have changed your opinion?
You’re right that funerals aren’t really private events (although your last comment about a funeral in a church not being public seems a bit contradictory – perhaps I’m misread you). I realize I’m treading a fine line here, but as I was saying above, I’m essentially arguing that although events like these are held in public, they should be treated as private affairs. I can walk by your wedding, stop and watch it, and even snap a picture, but I shouldn’t be allowed to intrude upon it or disrupt it (again, I’m arguing my own beliefs here, not the law). As you yourself noted, free speech isn’t absolute, even in this country. There are places and situations where we put some restrictions on it. I’m saying that I feel like this is one of those places where we should apply restrictions, and I don’t believe that doing so constitutes a threat to free speech as a whole.
Sorry to those who feel different, but it needs to be pointed out:
Phelps’ beliefs are not being suppressed in any way. He still has the right to have those beliefs and express them. He and his idiotic followers cross the line when they harass others with their beliefs.
Free speech is important, obviously, a cornerstone of our democracy, but this isn’t a free speech issue–it’s a harassment issue. Phelps wants to have it both ways—freedom of speech and freedom to use speech to harass.
Someone once said: “Your freedom to swing your fist ends at the beginning of my nose.” and I think that applies here.
(disclaimer: I happen to be a lawyer, but not the relevant sort of lawyer for this.)
The tort of intentional infliction of emotional distress seems to be getting unfairly slammed here. The Phelps case is just not the paradigmatic case for it. When I go over the four elements posted above, I don’t actually agree that any one of them was satisfied by the facts as described. Normally it applies to worse conduct than that, and mere insults or offensiveness are not enough; unfortunately people are startlingly talented at finding far more awful things to do to each other than picket funerals. My impression is that the case just came out wrong.
Allowing people like Phelps to be protected by the First Amendment helps all of us. We know who he is, we know where he is, and we know what he thinks. That’s better than forcing him to hide, where he could get even angrier and loonier and do something truly dangerous. Bit by bit, the law and independent groups have been able to put physical distance between his protesters and the ceremonies they want to disrupt, which puts them even more out in the open. Sunshine is the best disinfectant, I believe.
Sil-Chan,
Your words:
“Free speech trumps privacy any day of the week legally for this reason.”
and then:
“If you don’t believe hospitals are not a public place, try walking around in one someday. You will be summarily thrown out. HIPPA and all that other ruckus.”
I was about to reply to the first quote by saying “Not always… what about HIPPA?”
HIPPA and other laws that protect our right to privacy when dealing with our health and the medical profession are the one case that I can think of off the top of my head where privacy beats out free speech legally.
Say a doctor or other health professional has access to records of people who have HIV. They can’t just go out saying “HIV is God’s punishment to mankind! Jim, Sally, and Pedro have HIV, yadda yadda yadda.” or even “Protect yourselves! Sarah, Tiesha, and Benoit have HIV!”
That’s the most obvious example of where privacy overrules free speech, but I’m sure there’s other cases that I’m not thinking of.
“If you want to make an argument that this ruling doesn’t violate the First Amendment, then I’d be very open to hearing it. I’m the first to admit that I’m not a legal or Constitutional scholar, and it’s possible that a reasonable case could be made that the Phelps protests are not protected speech under the First Amendment.”
This particular action against the Phelps organization is NOT a violation of their First Amendment rights.
The purpose of the Constitution is to define the relationship between people and government. Except for the 13th and 18th Amendments, the Constitution and Amendments do NOT speak to relationships between citizens. You don’t have to be a lawyer or serious scholar — just read the thing!
The First Amendment doesn’t immunize Mr. Phelps from a CIVIL lawsuit filed by another citizen. It DOES protect him from being thrown in jail by the GOVERNMENT for the content of his speech. He has not been thrown in jail, so his First Amendment rights have not been violated by this ruling.
Others have made that argument. BrotherLove. But it’s simply, flat-out not true. The Constitution and the First Amendment does apply to civil cases as well as criminal ones.
The case that leaps to mind immediately is the very famous Hustler Magazine v. Falwell, in which the Supreme Court’s unanimous ruling prohibited awarding damages to public figures — that’s damages *in a civil suit* — to compensate for emotional distress intentionally inflicted upon them, unless those statements were libelous.
Here’s more information about that case. I suggest you read it — it’s very much relevant to the Phelps case. It’s not identical, since it centers on criticism of public figures; but many of the basic principle are the same.
http://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell
Note especially the ruling that the “outrageous” standard for harm, quote, “runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience.”
In any case, regardless of whether you think the Phelps case was legitimate free speech or illegal violation of privacy, the fact that this was a civil case instead of a criminal one is clearly irrelevant.
Sorry, BrotherLove. Civil suits are built on a foundation of legislation that authorizes courts to hear them and sheriffs to enforce them.
So while *direct* laws are more significant, the “Congress shall make no law…abridging…the right of the people peaceably to assemble” doesn’t limit itself to direct laws.
Wikipedia has some good information on the subject, at
http://en.wikipedia.org/wiki/First_amendment#Libel.2C_slander.2C_and_private_action
People! The wrong point is being argued here. The Phelps case isn’t about free speech—it’s about harassment. Phelps claims his right to free speech is being violated—he’s wrong. He’s using speech to harass people and trying to make the claim it’s his constitutionally protected right. The court said it’s not, obviously.
Greta, I think the Hustler/Falwell episode really isn’t comparable here. Falwell sued Larry Flynt over a satirical ad parody in which Falwell described having sex with his mother. But the court found that the parody was protected satirical speech—-no reasonable person would believe the parody was real or that Jerry Falwell had had sex with his mother.
Now, I’m guessing that if Falwell could have provided proof that Flynt intended to harass Falwell with the spoof the outcome may have been different. Phelps, on the other hand, doesn’t even try to hide the fact he’s intending to harass the families attending the funerals he protests.
No satire involved—he’s abusing his right to free speech, and he’s finally having to answer for it. I’m reasonably sure our right to free speech is going to survive Phelps.
“The Phelps case isn’t about free speech—it’s about harassment.”
And I say yet again:
Here’s how harassing the Phelps clan was, how invasive they were of the plaintiff’s privacy:
The plaintiff *didn’t know they were there.*
The plaintiff didn’t find out about the protests until he read about them in the paper the next day.
I actually might not have a problem with putting some reasonable limitations on protests at semi-public, semi-private events like weddings or funerals. A limit to how close protesters can get, for instance, so they can get their message across without invading the privacy of or harassing the celebrants/ mourners.
But if a law like that were in effect, the Phelps clan would almost certainly have been on the right side of it.
What they did was vile — but if the plaintiff didn’t even know they were doing it until he read about it in the paper the next day, then it was not harassment.
GC: I’ve only recently read your blog, and it is so impressive I expect to be quoting it frequently and linking to it in dicussions on DEBUNKING CHRISTIANITY. I really regret that my first comment is one disagreeing with you, but I have to, on this.
I can’t discuss the court case, and I find the Phelpses as disgusting as you do, but I do not feel the question about taking legal action against him is in the slightest a ‘free speech’ matter. And it has nothing to do with the content of his speech — though, as a former liberal, Phelps knows full well that liberals will support him even more fervently because they hate what he is saying.
To make my point, let me give you three equivalent — in my mind — scenarios, and note that I am not describing the message in any one of them.
We go to a restaurant together. In the middle of a meal, a politician brings out a microphone, steps onto his chair, and begins making a speech. Which would you support, his ‘free speech’ rights, or the right of the management to request, and then force, him to leave?
Afterwards we go to the home of a friend who lives in a large apartment building. We put on the radio to listen to music and discover that someone in the building has a ‘micro-transmitter’ tuned to the same frequency as the station we wanted to listen to, so instead of hearing music, we hear him speaking his views. Again, do you support his rights, or the right of the management asking him to ‘cease and desist’ and if he doesn’t do so, to evict him.
The next day we attend the funeral of a mutual friend. During the funeral someone shines a light on the casket, and we discover that, without permission of the friend’s family or the undertaker, the casket has been posted with political posters that the light makes visible. Again, do you support his doing so?
There are too many comments to read so maybe someone has addressed this already. My point is that this is a civil case, not a criminal case. The standards for civil cases are different. If this was a matter of the federal or state government abridging free speech rights I’d be much more indignant. As it stands, however, it is a civil court interpreting civil law. In any case someone has the right to sue me, the question is will they win? In this case the plaintiff won, but in most cases like this they don’t, unless a civil law has been broken (libel etc.)
All this is to say, such freedoms do not protect you from getting sued, but they do protect you from being found guilty. I too am disturbed by this case, but I would be more disturbed if it went further, through appeals and was upheld, or at least wasn’t clarified further. I think it will be. More to the point, this type of thing happens all the time, and the notoriety of the case seem to be the deciding factor in your concern. You might want to look at Uri Geller (of all people!) and his history of nuisance suits against James Randi. You might feel better…
Hi Greta:
“And I say yet again:
Here’s how harassing the Phelps clan was, how invasive they were of the plaintiff’s privacy…..”
I won’t argue that point with you. What I’ve observed with this case is that Phelps has turned it into a free speech issue when it isn’t.
We can argue whether this particular case is actually harassment, which is a good thing. The court found it was, maybe they are wrong. I don’t know.
But free speech isn’t under attack here, that I do know. And we’re letting that pig Phelps change the subject so we argue about something entirely different.
As an animal rights activist I can guaran-freaking-tee you if I were dressed in a similar fashion as the person in the “God hates you”/”Don’t Worship The Dead” person, they would find some reason to arrest me. I am shocked that we are defending Phelps when so many people (including the SHAC7) have been wrongfully persecuted for exercising their 1st amendment rights.
I do love your blog, though! just stumbled upon it today.
As an animal rights activist I can guaran-freaking-tee you if I were dressed in a similar fashion as the person in the “God hates you”/”Don’t Worship The Dead” person, they would find some reason to arrest me. I am shocked that we are defending Phelps when so many people (including the SHAC7) have been wrongfully persecuted for exercising their 1st amendment rights.
I do love your blog, though! just stumbled upon it today.
It’s hard not to believe that greed was a factor in the father’s pursuit of this case. I don’t think anyone’s emotional distress is worth $11 million. If that’s the value of the father’s distress over a one-time intrusion on his grieving he ought to be suing the United States government or whoever he considers responsible for his son’s death for $11 billion, because I hope he’s at least a thousand times more distressed over the death of his son than he is over the brief and inconsequential actions of a man who is obviously looney-tunes. It cheapens any emotion to put a dollar value on it.
(Note: This is Greta posting on behalf of Barb, who has been having technical troubles posting her comment, and who emailed me to ask me to do it for her.)
I agree with those who’ve said the issue here is harassment, which is one form of speech that is not and should not be protected by the First Amendment, but I also agree with Greta that, if in fact none of the funeral-goers were even aware of the protest while it was going on, then the protest did not meet any reasonable definition of harassment, and the case was wrongly decided. I very much hope that the decision will be reversed on appeal, as it does seem to create a precedent for excessively broad interpretation of the definition of harassment which could indeed have a chilling effect on protected speech.
One other issue I haven’t seen addressed much in the comments is my immediate reaction to this section of Greta’s post:
And the more I think about this case, the more I think it’s bad strategically as well as ethically. And for much the same reason. I think this case can and will be used by the Right to argue that queers are demanding “special rights.” “Sure, they want First Amendment protections for themselves,” they’ll say. “But they sure are quick to get off their First Amendment high horse when it’s someone they don’t like!”
And they’ll be right to do so.
Actually, they’ll be wrong — not that that will stop them, because they’re infinitely dishonest and hypocritical — because this wasn’t a victory for the queer rights movement at all. It wasn’t the family of a queer person that won this judgement: it was the family of an American soldier killed in Iraq, and I’m very, very skeptical of the proposition that a queer person’s family could have won such a judgement. I think Phelps was in no real legal danger as long as he was harassing the friends and families of victims of AIDS and homophobic murder; it’s only now that he’s attacking America as such, and picketing the funerals of soldiers, whom the Right regards as sacred martyrs, that he’s having legal trouble.
And of course, the Right is fully capable of providing financial support and pro bono legal advice to lawsuits against Phelps by soldiers’ families (I don’t know if that happened in this particular case, but I am certain such support and advice would have been forthcoming from right-wing organizations like the ACLJ had the plaintiffs sought it), while the right-wing media loudly blame the gay rights movement for suppressing his First Amendment rights when those lawsuits succeed on the other.
Anon animal-rights activist: I am shocked that we are defending Phelps when so many people (including the SHAC7) have been wrongfully persecuted for exercising their 1st amendment rights.
We are defending Phelps on behalf of all people who have been wrongfully persecuted for exercising their first amendment rights — because they are the very last people who can afford to allow any erosion of those rights.