Signs
Snyder v. Phelps was just argued before the Supreme Court. It's about a lawsuit for intentional infliction of emotional distress created by protestors at a funeral. Their signs were highly offensive, but they seemed to be protesting based on wider beliefs, not just the need to hurt the particular people there. Does the First Amendment protect them from liability?
I would think it does. I don't even think it's that tough a case. But I fear, after reading about the argument, that the Justices may be looking for a way to uphold such a lawsuit. After all, what we're talking about here is a dead serviceman being mocked by a nutty religious group with hurtful, despicable signs who believe that American is being punished because it tolerates homosexuality. (The protest was actually a few football fields away from the funeral--the plaintiff didn't even know about it until he heard it on the news. This, however, may not be relevant to the case.)
The original jury trial, not surprisingly, awarded millions to the grieving father, but a higher court overturned the decision on free speech grounds. Just taking the case suggests the Supreme Court doesn't see the appeals court decision as a slam dunk.
But if they find for the father, it will suggest that all protestors had better watch out--their message, even if they believe it's of general import, can get them sued if society finds it too outrageous.
posted by LAGuy @ 12:14 AM
9 Comments:
I don't understand the plantiff's case. It seems that the SCOTUS could rule in one of two ways:
(1) This kind of protest is protected under the 1st Amendment.
(2) This kind of protest is not protected by the Constitution. Therefore, a state government (and perhaps also the Federal government) is permitted to pass laws restricting this kind of protest.
But even if they rule for # 2, there's no getting around the fact that no such law is on the books today. And even if one were passed tomorrow, ex post facto laws are still prohibited by the Constitution. Ergo, the demonstrators violated no laws, and the father doesn't have a case.
Am I right?
It is a tort case for intentional infliction of emotional distress. That tort requires that the defendant intentionally engage in extreme and outrageous conduct that causes emotional distress to the plaintiff. Whether the picketing was extreme and outrageous is a state law tort issue. But whether the speech (or expressive conduct) is protected by the First Amendment is a federal issue.
I see. So the 1st Amendment (in light of the 14th Amendment and case law) not only prevents the government from criminalizing speech, but it also prevents the government from making any form of speech into a tort. I didn't know this, although now that I think about it, it makes a certain amount of sense.
Are the boundaries of these co-extensive? Or do there exist some forms of speech that cannot be criminalized, but can still be torts?
Does this principle apply to the entire bill of rights? In other words, is it safe to say that if the government is constitutionally forbidden from criminalizing a certain act of assembly, association, petition, gun-bearing, or jury-requesting, then it is also forbidden from making that act a tort?
Maybe my final question should be rephrased as follows:
Is it true that if the government is constitutionally forbidden from criminalizing a certain act of assembly, association, petition, gun-bearing, or jury-requesting, then no one can be held civilly liable for the results of such an act, even if the results would otherwise be a tort?
There are many types of speech that can be criminalized, or make one liable in a civil action. For example, threatening to hurt someone, offering to buy or sell drugs or sex, or slandering someone or askingasking to buy drugs or sex, are pure speech but also actionable. Intentional infliction of emotional distress is a tort and can be purely speech. The question is all such cases is does the action we're talking about, or the law under which the action is taken, go too far and have First Amendment implications.
So there's no precise line? In other words, you and most observers believe that SCOTUS should rule against the plaintiffs in this case. But if there were slightly different features to the situation -- for example, if the protesters deliberately targeted the same family several times, or were motivated by dislike for that family personally rather than by their twisted religious views -- then you and these others would probably feel that the plaintiff should win?
While it's good to have bright line rules, it's inevitable there will be blurry areas at the border.
Is speech in the service of buying drugs and sex recognized as pure speech? Isn't it rather that the speech is evidence of the attempted criminality, instead of the criminal act? I'd have to think that if I said I wanted to buy drugs, but the jury believed I didn't mean it, that I wouldn't be convicted, properly anyway, for the attempted act of buying drugs, whereas if it were criminal to say so, I would be, regardless of my intentions.
Intent is central to crimes, and if you can prove you didn't mean something or were misunderstood, that often means you didn't commit the crime. The simple point here is there are crimes where the only outward activity is speech. (There's some sort of intent behind all speech, of course.)
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