The Kettle Speaks

There's a group of religious nuts in the U.S. who believe the Supreme Being is angry at us because of our acceptance of homosexuality. That's bad enough, but they go to military funerals and protest as close as they're allowed to get, with ugly signs saying, essentially, this is what happens when we welcome "fags" and they're glad the soldier died.

The father of one of these soldiers sued. The jury found for him and awarded him millions under the tort of intentional infliction of emotional distress. The appeals court reversed. The Supreme Court has since agreed to hear it.

While I'd guess the vast majority of Americans would agree with this group's punishment, I don't think it can be squared with the First Amendment. Indeed, the IIED tort has always been on a bit of a collision course with freedom of speech.

The whole point of much public protest is to say or do things which are, almost inevitably, hateful or shocking to one group or another, and, when the protest is at a specific event, hateful to specific people. In this particular event, I believe the protestors were 1000 feet away and the father who sued didn't see them except on TV reports. For all the pain it may have caused him, he certainly understood this wasn't the voice of the community and, indeed, these people are generally held in contempt. But if these protesters are to be required to pay millions (which effectively shuts them down, I presume), then any protest about highly emotional matters could potentially be shut down by similar lawsuits. Just the threat of such suits could be enough.

As much as we sympathize with the poor father, the pain alone doesn't create the cause of action. There was a lot of protest against the war, and I can see any parent of a slain soldier being cut to the quick by all sorts of signs seen in protests--that the war was a lie, that the soldiers died in vain, that soldiers are war criminals, etc.

Words can hurt, no one denies that. But we can't be punishing words that are hateful for that alone, because then unpopular protests would be more easily punished than others, which amounts to an end run around the First Amendment.

Even if you think this tort is acceptable if it is limited to particular protests against particular people, there's still not enough protection for freedom of speech. Protests are often aimed at specific places against specific people. If IIED is allowed in this case (and I fear that the Supreme Court accepting the case may signal they're willing to reverse), I would expect it'd regularly be used in lawsuits against what are otherwise understood to be legal protests. As long as the community is unhappy, you've got a shot. But the First Amendment is there to protect minority viewpoints.

What this group claims is nutty, but it wasn't provable or disprovable. These people aren't lying just to hurt someone. They're not playing a heinous practical joke just to humiliate some person in front of the community. They think they have a serious and important point to make. There are many religious beliefs that seem bizarre (and ugly) to outsiders that inspire action in believers. (Same goes for political beliefs.) If it leads to violence that's one thing, but if it leads to airing their views, that's another. These protesters may be trying to make people feel bad, but not for its own sake--they're trying to make people feel bad because they are agitating for change. Protestors regularly try to bring about change through shaming people.

If the trial court's verdict is upheld, how can any group march on anyone with pictures of aborted fetuses? How can anyone march with pictures of maimed animals? How can anyone publish the Mohammed cartoons?

For that matter, how can anyone perform satire? As long as some community finds it extreme or outrageous, why couldn't they try some late night comedians for the severe emotional distress they cause? For all I know, some stupid radio comedian calling a woman's basketball team "nappy-headed hos" could be hauled before a judge and have a local jury decide how much he should pay.

Ann Coulter has written an editorial saying the courts should sock it to these protesters. Astounding. This is the woman who regularly takes on specific people, using exceedingly harsh language. She doesn't need to protest at their particular homes or places of worship, since her books are sold all around the nation, and the people are regularly within 1000 feet of a bookstore, or may be confronted with the sight of locals reading her book. Coulter also appears regularly on television, repeating her claims, where those she attacks can watch from their own living rooms.

Here's something she wrote about 9/11 widows who opposed George Bush and supported John Kerry:

These broads are millionaires, lionized on TV and in articles about them, reveling in their status as celebrities and stalked by grief-arazzis. I've never seen people enjoying their husbands' deaths so much.

Ann, I'm sure you believe you're right, but I'm also pretty sure the communities where these widows live find your accusations outrageous. If the Supreme Court overturns the appeals court decision, you may be next.