In this version of the tort law involving Invasion of Privacy the above isn’t required. The demonstration inviting unwarranted exploitation and publicity is enough. Of course I don’t know the exact Maryland version.

“Tort law protects one’s private affairs with which the public has no concern against unwarranted exploitation or publicity that causes mental suffering or humiliation to the average person.”

Seeing the demonstration plastered all over the TV satisfies that.

That’s an interesting use of a quote from Answers.com, but in this case whether you agree with Phelp’s politics or not, whether or not he’s a dick, it’s pretty clear that he’s engaging in political speech. He might be doing it in a hurtful, humiliating way that pisses people off - but since his “church’s” goals are apparently to change the laws of the land regarding the enlistment practices of the military it would be protected if even the judge were sympathetic and had any sense.

MisterMook, I think you are forgetting that rights must always be balanced against the needs of society.

Which is exactly the point I’m making: The right of the grieving in this case don’t trump the principles that our society is based upon. Freedom of speech and assembly isn’t often as glamorous and as pretty as people might like it to be, but in the end it’s perhaps the most critical of rights in a democracy. It doesn’t matter how you are silenced, if it’s with a police baton or a court letter - if people can silence other people engaging in political discussion no matter how foul to the average person based solely upon their perceptions on the “correctness” of their speech then you’re looking at a constitutional crisis.

might I remind you that, according to the Phelps’, “God Hates America”, so they are hiding behind laws they don’t even believe in.

You can “remind me” all you like, but the laws of the land don’t have to be believed in to apply equal to everyone. All you’re doing is trying to weasel away his rights because he’s a bad person. Frankly I don’t care if Phelps were also championing the sodomy of young children, white supremacy, denying the Holocaust, and advocating sex with livestock. The law isn’t about what a crappy person you are, or how valid your beliefs are. It doesn’t not apply if you hate America, if you say you’re not an American, or if you refuse the sovereignty that covers you.

The law doesn’t only apply if you’re a nice person or if society agrees with what you say, it’s most important to the principles of our government that it apply when you’re a really shitty person that no one agrees with at all.

There’s a great word in German: “jain”, meaning “yes-no” (ja+nein). I’m going to have to plant my feet firmly on the slippery slope of yes-no here and say: hmmm- jain.

On the one hand: Phelps is scum, and protesting at a private funeral is beyond the pale. On the other: free speech is very important. But where do you draw the line?

Shouting “fire” in a crowded theater with no fire is pretty obviously an abuse of free speech. My saying that Phelps is scum, here on an open internet forum, and not spit in his face at dinner with his family, is equally pretty obviously a right worth defending. But there’s lots of stuff in between, and I’m unwilling to say that this case is obviously on one side of that fuzzy line or the other.

That’s the difficult thing about moral systems, regardless of whether they’re religious or not: they are not black and white, and sometimes hard decisions must be made.

MisterMook, I think you are forgetting that rights must always be balanced against the needs of society. The reason we can’t yell “fire!” in a crowded theater is because of exactly that.

Actually you can yell fire in a crowded theater, so long as there is actually a fire. If there isn’t and you end up causing a panic that gets people hurt then you’re going to be held accountable for it. Freedom of Speech doesn’t mean you’re not responsible for what you say especially if what you say is demonstrably false.

In the olden days, disagreements were settled by duels, but that “right” was taken away at the whim of a society who found it objectionable. Duels were private affairs, but I’m sure you don’t mind their absence.

I’m not sure I see how outlawing dueling is a restriction on free speech.

The Phelps clan were clearly in the wrong, whether the eyes of the law recognize it or not.

I’m not sure I agree with you on this point. What the Westboro Baptist folks do is odious and offensive, but that’s not the same thing as wrong. There are plenty of people out there who find SEB to be odious and offensive and would like nothing better than to make it go away. I get email from them every so often.

and might I remind you that, according to the Phelps’, “God Hates America”, so they are hiding behind laws they don’t even believe in.

Simply because Phelps believes God hates America doesn’t mean he (Phelps) doesn’t believe in America’s laws. In fact, near as I can tell, Phelps and his clan have made every effort to abide every one of the (legally dubious) laws that have been passed in various states designed to make his protests as difficult to do as possible.

This has not nearly the impact on Free Speech some people here think it does. Free Speech still very clearly covers honest opinion, reporting of facts, satire, and other such things.

Again, near as I can tell, the Westboro folks are expressing honestly held opinions and I’m willing to bet they’d claim that they’re reporting facts on how God feels based on the evidence they find in the Bible. If the Bible does turn out to be true then they could very well be right on that point, though it goes without saying that I doubt that possibility.

Free Speech never covered libel and slander (which are dishonest attacks on character) and being a public nuisance.

If being a public nuisance was grounds for banning someone’s right to say something then there’s a lot of people out there who should be locked up right now. It’s true that the law does cover libel and slander, but you have to prove it’s libel and slander first and it deserves pointing out again that this wasn’t a criminal trial for libel or slander. This was a civil suit that effectively achieved what criminal suits have been unable to do: Silencing someone saying unpopular things.

I agree wholeheartedly with the following people who are far better thinkers than I am:

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”—George Orwell

“I have fought censorship all of my adult life. To me, the most precious of all rights in this marvelous country called the United States of America is the freedom to think, write and say whatever is on your mind… That freedom also extends to thoughts that are stupid, ignorant or incendiary. No one needs a First Amendment to write about how cute newborn babies are or to publish a recipe for strawberry shortcake. Nobody needs a First Amendment for innocuous or popular points of view. That’s point one. Point two is that the majority-you and I-must always protect the right of a minority-even a minority of one-to express the most outrageous and offensive ideas. Only then is total freedom of expression guaranteed.”—Lyle Stuart

“The principle of free thought is not free thought for those who agree with us but freedom for the thought we hate.”—US Supreme Court Justice Oliver Wendell Holmes

“I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.”—Thomas Jefferson

A little more of our freedom has been chipped away.

I don’t like the messages they preach, but it is their right to be able to preach it. I sincerely hope they win the appeal.

The Westboro folks weren’t ever on the funeral grounds and, in fact, Snyder never saw their protest at the time it took place.

Thanks for clearing that up Les. And I pretty much agree with the other comment you left.

And this, now that it appears they weren’t really doing anything wrong.

I don’t like the messages they preach, but it is their right to be able to preach it. I sincerely hope they win the appeal.

And this, now that it appears they weren’t really doing anything wrong.

Oh, they were doing something wrong.  But I must concede it appears, it was a constitutionally protected wrong.

That’s what I meant. Wrong in terms of the law.

Freedom of Speech doesn’t mean you’re not responsible for what you say especially if what you say is demonstrably false.

Well, yeah, that was the intent of my statement, but I won’t excuse myself for sloppy argumentation. Good catch. But, again, the point is that one should be held accountable for his or her actions, is it not? If those actions were for the public good, then those actions should be protected, right?

I’m not sure I see how outlawing dueling is a restriction on free speech.

It isn’t, but it does illustrate the fact that sometimes rights held one day can be taken away the next, and sometimes it is for the better that we give up that right. Of course, I don’t want to see our freedoms chipped away at any more, especially after that hateful USA PATRIOTS Act, but I’d rather think the rights I have are hard-won and well-considered than merely my birthright.

I’m not sure I agree with you on this point. What the Westboro Baptist folks do is odious and offensive, but that’s not the same thing as wrong.

Agreed. However, it wasn’t that they were being offensive that caught my eye. It was that they were being nothing but offensive. There are probably better ways to make a point than to demonstrate at a funeral and to impugn a dead man’s character.

Again, near as I can tell, the Westboro folks are expressing honestly held opinions and I’m willing to bet they’d claim that they’re reporting facts on how God feels based on the evidence they find in the Bible.

I see your point, but the problem here is a matter of context.

I have a great dislike of Fred Phelps, so I can say I would be glad when he were dead. I might be a horrible person for that, but I base my opinion on actual things Fred Phelps has done and the character he has displayed in public and the wrong s which, in my opinion, he and his minions have inflicted on other people.

When the Phelps clan thanks God for dead soldiers, however, their obvious expression of hatred for soldiers has very little correlation to anything a particular soldier may have done. Still, however, I would say that saying such a thing is protected by Free Speech, even if it is very offensive to me.

Now, when the Phelps clan makes such a general statement in relation to a particular soldier’s funeral, it not only goes beyond the bounds of good taste; it’s implying that that soldier deserved to die for some reason. It can also be argued that the Phelps Clan is advocating the death of soldiers (which is bad enough) and is making their point with personal attacks.

It’s a very long way off from merely being offensive to others or ridiculing someone for being an asshat. I’m very sure you, Les, would never even appear to advocate someone’s death.

I agree with all the concern that the judgment restricts our rights a little more, but I would ask you whether you’d like to have someone else have that right.

It isn’t, but it does illustrate the fact that sometimes rights held one day can be taken away the next, and sometimes it is for the better that we give up that right.

When was dueling ever a right? I think it was just something people did, not something protected constitutionally.

However, it wasn’t that they were being offensive that caught my eye. It was that they were being nothing but offensive. There are probably better ways to make a point than to demonstrate at a funeral and to impugn a dead man’s character.

Isn’t that a distinction without a difference? Anyways, you are likely right that there may be better ways to demonstrate, but that doesn’t matter. The issue is that the Westboro asshats have the right to protest.

Now, when the Phelps clan makes such a general statement in relation to a particular soldier’s funeral, it not only goes beyond the bounds of good taste; it’s implying that that soldier deserved to die for some reason. It can also be argued that the Phelps Clan is advocating the death of soldiers (which is bad enough) and is making their point with personal attacks.

None of which really matters since the statements the Westboro folk make are protected as free speech, or at least should be.

I agree with all the concern that the judgment restricts our rights a little more, but I would ask you whether you’d like to have someone else have that right.

I can’t answer for Les, but I will answer for myself with a definitive yes!

When you restrict rights to free speech you make it harder for everyone to speak freely and express their ideas. Reason being, when rights are restricted suddenly people have to worry about what they say. Before ideas are expressed you have to first say, “Hmm, is it okay to say this.” Fewer people will express opinions for worry of what is allowed.

Also you are making laws based off of morals for certain individuals. For instance, if the right to free speech is suppressed who decides what is an ok topic to discuss? In the words of the great South Park creators, “It all has to be ok or none of it is ok.”

The Phelps clan were clearly in the wrong, whether the eyes of the law recognize it or not.

I think everyone here pretty much agrees with that.

The only thing that has saved them from being sued before now is the fact that they are very good at hiding behind laws - and might I remind you that, according to the Phelps’, “God Hates America”, so they are hiding behind laws they don’t even believe in.

The same has been said for communists, anarchists, and “people who don’t love our great country.” Presumably that shouldn’t be a reason for preventing or punishing their speech.

Free Speech still very clearly covers honest opinion, reporting of facts, satire, and other such things. Free Speech never covered libel and slander (which are dishonest attacks on character) and being a public nuisance.

As far as I can tell, the Topekans hold their loathsome opinions quite honestly.  And “public nuisance” laws are among the first tools used toward any protester that the public (or the powerful) doesn’t like.

I’ll add in a couple of quotes alongside Les’:

“You can only protect your liberties in this world by protecting the other man’s freedom.”—Clarence Darrow

“I believe that the First Amendment should cover everything. Even the incredibly icky, distasteful stuff. Because if we let “them” start making ethical judgments, they might not stop until it’s nothing but Norman Rockwell and Hummel figurines.”—Phil Foglio

“No matter whose lips that would speak, they must be free and ungagged. The community which dares not protect its humblest and most hated member in the free utterance of his opinions, no matter how false or hateful, is only a gang of slaves. If there is anything in the universe that can’t stand discussion, let it crack.”—Wendell Phillips

“The First Amendment exists to insure that freedom of speech and expression applies not just to that with which we agree or disagree, but also that which we find outrageous. I would not amend that great shield of democracy to hammer a few miscreants.”—Colin Powell

“The Constitution gives every American the inalienable right to make a damn fool of himself.”—John Ciardi

“The idea that any kind of free society can be constructed in which people will never be offended or insulted is absurd. So too is the notion that people should have the right to call on the law to defend them against being offended or insulted. A fundamental decision needs to be made: do we want to live in a free society or not? Democracy is not a tea party where people sit around making polite conversation. In democracies people get extremely upset with each other. They argue vehemently against each other’s positions. (But they don’t shoot.)”—Salman Rushdie

“Since when do you have to agree with people to defend them from injustice?”—Lillian Hellman

Deaths of Soldiers- Caused by God. God can will anything he wishes.  So fine imposed must surely be okay with God.  Or will it only be winning the appeal God gets the credit for, bad stuff is caused by athiests, all good stuff if God’s.

When was dueling ever a right? I think it was just something people did, not something protected constitutionally.

It was considered so at one time - at least, a right of the gentry. That’s one of the reasons it was outlawed in these United States, by the way. Rights aren’t just those things we do which are protected.

Isn’t that a distinction without a difference? Anyways, you are likely right that there may be better ways to demonstrate, but that doesn’t matter. The issue is that the Westboro asshats have the right to protest.

Hm. I think we aren’t differing in opinion on whether they have the right to protest, but as to whether their manner of protest should be protected. Part of that, I think, comes from the fact that there is no accepted definition of “hate speech”, which I am sure we all would agree should not be protected under free speech.

The question is, did the Phelps clan go too far? And if they did, should we sacrifice our moral integrity for an ideal? Most of the responses I have seen here only graze the question. There is no comparison between the Phelps clan and the Communist Party because one is pure hate-spouting masquerading as religion whereas the other is an honest dissent towards our method of government.

Understand that the idea of my right to speak freely being taken away scares the Hell out of me, but I don’t know that I am willing to let someone say just any hateful thing that pops into his head, in any place and at any time, then hide behind a law he doesn’t even respect. Westboro doesn’t go out to spark discussion or voice dissent but to inflict damage with their hate.

Should we really be protecting that, or is it possible we can come up with a good way of telling the difference between hate and dissent?

Which means this discussion is futile. Plenty of people have posted as to why free speech is important and why the Westboro folk should be allowed to protest all they like.

or is it possible we can come up with a good way of telling the difference between hate and dissent?

Hate and dissent are not mutually exclusive.  What’s illegal is harassment, and with the more complete picture this is a bit iffy.

Which means this discussion is futile.

I value the rights I have precisely because I am willing to question them. How else would we know their worth?

Plenty of people have posted as to why free speech is important and why the Westboro folk should be allowed to protest all they like.

I merely maintain that there is a large difference between protest or discussion and just plain being mean. The Westboro folks are trying to make a point, sure, but they have demonstrated over and over again that they don’t care who they hurt. I’m all for lively discussion and even ridicule, but how far is too far?

Hate and dissent are not mutually exclusive.  What’s illegal is harassment, and with the more complete picture this is a bit iffy.

I concede that point. Freddie-boy has become much more shrewd in his old age, hasn’t he? Still, we have the feeling he has crossed some line, but we can’t seem to find where it is.

This discussion isn’t futile at all. I am always willing to concede that Fred Phelps did nothing illegal - and I have, but that’s not what this civil suit is about, by the way. Tort is about damage done to someone else, not illegal behavior.

Nobody has yet convinced me that speech should be protected no matter how offensive. All I have here are reiterations of an ideal and lots of lovely quotations, which are not enough. If you can’t tell someone why you deserve a right someone else fought for, then how are you not cheapening it?

Nobody has yet convinced me that speech should be protected no matter how offensive.

Well Heinlein used to say “Certain types of loudmouthism should be a hanging offense” and in a perfected society that might be arguable.  But debating if someone has gone “too far” implies we know or can decide where the line is or that there should be one.  What stops me from getting out my carpenter’s pencil and straight-edge is just this; offensive speech is the only kind that needs protection.  I am keenly aware that there are people in some parts of the world who feel that my characterization of Mohammad as a ‘warrior prophet’, and the Muslim religion as still quite violent, should be a beheading offense.  I wouldn’t want them suing me either.

Likewise if someone wants to make the same case against Christianity (and it can certainly be made) they should have the freedom to do so.  But they should not be able to stand up in a Christian church gathering and challenge people there; it’s private property.  But stand across the street holding a sign?  Let the Christians either ignore him or prove him wrong.

As an aside, how much harm is Phelps really doing to society at large?  His open bigotry has probably done as much for gay rights as any gay rights parade.  Maybe hidden prejudice does the most harm.

Nobody has yet convinced me that speech should be protected no matter how offensive. All I have here are reiterations of an ideal and lots of lovely quotations, which are not enough. If you can’t tell someone why you deserve a right someone else fought for, then how are you not cheapening it?

So you apparently didn’t read this at all and just decided to skip it…

When you restrict rights to free speech you make it harder for everyone to speak freely and express their ideas. Reason being, when rights are restricted suddenly people have to worry about what they say. Before ideas are expressed you have to first say, “Hmm, is it okay to say this.” Fewer people will express opinions for worry of what is allowed.

Also you are making laws based off of morals for certain individuals. For instance, if the right to free speech is suppressed who decides what is an ok topic to discuss? In the words of the great South Park creators, “It all has to be ok or none of it is ok.”

If you don’t like what I wrote, read what DOF said, he is much more eloquent than I am.

Okay, okay, I’ll relent. Good show! And yes, Webs, I did catch that comment, but the problem with it is that it conflates “expression of opinion” with “possible criminal conduct” (my interpretation).

The point I wanted to make is that this is a civil suit, not a criminal suit. The two are not the same and do not necessarily reflect upon one another in our system. For example, just because you broke the law does not mean a civil suit could be brought against you, and just because a civil suit has been brought against you does not mean you broke the law.

Because what Westboro did was reprehensible and damaging, the family was perfectly within their rights to sue the church just as the church was perfectly within their rights to stage that protest. Both parties are in the right here.

This lawsuit really wasn’t about free speech at all; it was about someone who caused harm to another in the exercise of their rights. Civil suits are meant to fill in the gaps where the guaranteed rights of the people can conflict. There will be no repercussions on freedom of speech (criminally) because there was no criminal activity.

Sure, this case might make some tort easier to prove, but the whole point here is that, while you are free to say whatever you please, you have to consider the effect of what you say as well.

And that is my two dollars’ worth.

I’m all for lively discussion and even ridicule, but how far is too far?

Nothing unless it results in physical harm.

Their protest was no different than a public Klan rally. It was public, very controversial and hated by the majority of people. However it is their American right to have a public rally without being forced to give $11m to every pussy that is offended by their message.

DOF: But debating if someone has gone “too far” implies we know or can decide where the line is or that there should be one.

Much more importantly than that, since I’d grant that “we” (meaning, say, the local community here at SEB, would be able to come up with some sort of answer to those questions that I could live with) is not what we’re talking about here.  We’re talking about anyone who has the power of the state behind them—be it Dubya, Hillary, Lincoln or Nixon—being the one to draw the line as to what goes “too far.”

It’s not a power I trust in myself—I’ll be damned if I’m going to trust it in others, let alone others in power.

Ryan: This lawsuit really wasn’t about free speech at all; it was about someone who caused harm to another in the exercise of their rights. Civil suits are meant to fill in the gaps where the guaranteed rights of the people can conflict. There will be no repercussions on freedom of speech (criminally) because there was no criminal activity.

True, and that makes it somewhat more tolerable.  However, I question whether emotional distress in this case equates to that substantive level of harm that the damages indicate (especially given the facts of the case).  And, as has been noted, civil suits can lead to virtual censorship through a chilling effect, especially when subjective measures like emotional distress are involved.

Looks like most folks have said what I was going to say on this subject already so I’ll just keep quiet.

Well, except that now I haven’t…

I was surprised this scenario brought about a lawsuit before a violent end, to tell you the truth. I am not bothered by a perceived threat to freedom of speech as much as I am bothered by a refusal to make some distinctions. Comparing the Westboro Baptist church activities to this blog or any other, are you kidding me?

People are disgusted by what the church members say, and people have been for a long time. No winning lawsuit came about until the church went too far, and rightfully so. We can’t let people harass other people at funerals. It is not a free speech issue. It’s a cruelty issue, it’s a safety issue, etc.

My bet is the first amendment, as we know it, will not change because Fred Phelps and his like are told they cannot do this to people.

Moloch: Nothing unless it results in physical harm.

Unfortunately, that doesn’t work - otherwise, torture could simply be defined away as “physical harm” while we do all we can to completely screw our enemies’ minds. There is a limit to be defined, I agree, but it should probably be well before physical harm. Say, defamation of character or libel, for instance (which is what this case was about).

Moloch: However it is their American right to have a public rally without being forced to give $11m to every pussy that is offended by their message.

There is offense and then there is the harm that comes from what was said. I have fairly thick skin from constant verbal abuse in my childhood, so I can understand your objection to those “pussies” who seem to take offense to everything anyone else says. Then there is the effect of (falsely) defaming someone’s character, which is proof of tort, and which is the subject of this civil suit. It’s not a matter of free speech but saying anything to cause harm.

***Dave: We’re talking about anyone who has the power of the state behind them—be it Dubya, Hillary, Lincoln or Nixon—being the one to draw the line as to what goes “too far.”

This case wasn’t about anyone in power. What it was about is whether a religious authority should be able to get away with defaming someone’s character in the name of religion. Given that our courts do not favor any religion, this case was correctly handled as a defamation of character suit (amongst a few other things). The decision was correct and backed by a large precedent. I understand your fear, but it simply does not apply here.

***Dave: And, as has been noted, civil suits can lead to virtual censorship through a chilling effect, especially when subjective measures like emotional distress are involved.

So? Would you like it if someone started spouting plausible but untrue things about you that you could not defend yourself against? Sometimes a chilling effect is a good thing. I’d hope you would want the courts to back you up if someone were spreading false rumors about you in an effort to damage your reputation, which is the idea here.

As I said before, this decision may have set precedent in future decisions concerning radical religious groups and what they can say, but it does not impinge on Free Speech. You are still perfectly free to be an annoying asshole as long as what you say is true, is an honest interpretation of the facts, or is faithful reporting of quotation, regardless of your purpose in making such a statement. In other words, nothing much has changed.

So? Would you like it if someone started spouting plausible but untrue things about you that you could not defend yourself against? Sometimes a chilling effect is a good thing. I’d hope you would want the courts to back you up if someone were spreading false rumors about you in an effort to damage your reputation, which is the idea here.

Except that the protestors (insert obligatory “Fred Phelps is a hateful lunatic” disclaimer here) weren’t actually defaming the individual who sued them, but his son and the military in general.  Awful and maddening and shameless—but a personal defamatory harm done to the father?  I think not.

You are still perfectly free to be an annoying asshole as long as what you say is true, is an honest interpretation of the facts, or is faithful reporting of quotation, regardless of your purpose in making such a statement. In other words, nothing much has changed.

The case was settled based on invasion of privacy (dubious, from what I’ve read) and the idea of malicious infliction of distress (possibly so, but nothing to do with the truth or falseness of the charges).  Indeed, the concepts behind the statements that “God hates fags” and “Thank God for IEDs” are as unprovable as true or false as any more orthodox or mainstream religious or philosophical statement.