Wife Power?

CG is rightly outraged at the ten-plus million dollar jury verdict handed down against the Westboro Baptist Church for protesting military funerals with rather obnoxious signage, on grounds that the protests constituted intentional infliction of emotional distress (IIED) and incitement to riot. It's kind of a neat case to illustrate that sometimes the speech you hate is precisely the speech you have to work hardest to protect, if you take the First Amendment seriously.

However, I don't think it's much of a "what's next?" problem, as CG fears. The judge here drew a distinction between what was on the group's website and what they could do at a funeral, based on First Amendment considerations. And the basic underlying tort of IIED has existed since about the 18th or 19th century, in one form or another. You just rarely -- if ever -- hear about it because the standard for how outrageous the conduct has to be has always been set really high. The historical formation has always been that it's conduct which would make any reasonable person exclaim "outrageous!" The modern formation, I suppose, is whether it's the equivalent of saying someone lost his virginity to his mother while drunk on Campari in an outhouse.

To me the real issue is First Amendment protection for purely political speech directed at a non-public figure which would otherwise meet the standard for IIED and/or incitement to riot. Heck, here's a much more palatable example of political speech directed at non-public figures that certainly could be construed as incitement to riot, and which the subjects obviously found quite emotionally distressing. What's good for the goose, eh?