Hateful Speech at a Military Funeral: A Hard Case?
The Supreme Court will soon hear the appeal in Snyder v. Phelps. The case concerns a fundamentalist pastor (Fred Phelps) who decided to protest what he perceives to be the military’s tolerance of gays and lesbians -- by heckling at military funerals.
In 2006, Phelps and his supporters demonstrated at the funeral of a fallen Marine, Matthew Snyder. They yelled and waved signs saying “Thank God for Dead Soldiers.” Snyder's father won a verdict for intentional infliction of emotional distress, but the Fourth Circuit Court of Appeals reversed, saying that the judgment violates the First Amendment rights of the protestors.
Eugene Volokh -- for whom I have great respect -- has co-authored an amicus brief arguing that liability for "outrageous" speech will kill free debate on college campuses. That may be true, but the more important question is: what does the First Amendment protect? My understanding is that it prohibits prior government restraint on speech, but was never intended to mean that you can't face legal consequences for your speech after-the-fact. Presumably defamation laws also have a "chilling effect" on speech, but that doesn't mean they violate the First Amendment.
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Jul '10
Re: Hateful Speech at a Military Funeral: A Hard Case?
How deranged and disgusting does speech need to be before can I exercise my God-given right to dishing out a good old-fashioned poke in the snoot?
Followed, after the customary legal formalities, by jury nullification.
Aug '10
Re: Hateful Speech at a Military Funeral: A Hard Case?
Let me see if I understand this:
Phelps & co, by exercising their right to free speech, steps into the territory of Intentional Infliction of Emotional Distress (IIED), a newer but already established tort claim. Most jurisdictions view IIED suspiciously, however, as being frivolous, and it seems common for Courts of Appeal to reject most IIED claims.
If anything ought to qualify as IIED, my layman's brain tells me that this kind of heckling at a funeral is it.
But perhaps the very fact that IIED torts are allowed at all threatens freedom of speech? Is that it?
Also, have Phelps & co trespassed during these extravaganzas of theirs (in which case they could be gotten for trespassing), or are they careful to stay on their own or public property?
Edited on Sep 7, 2010 at 3:54pmAug '10
Re: Hateful Speech at a Military Funeral: A Hard Case?
Taking your question literally, would a Wikipedia article on legal provocation help you find an answer?
Edited on Sep 7, 2010 at 3:48pmAug '10
Re: Hateful Speech at a Military Funeral: A Hard Case?
Adam Freedman:
...what does the First Amendment protect? My understanding is that it prohibits prior government restraint on speech, but was never intended to mean that you can't face legal consequences for your speech after-the-fact. Presumably defamation laws also have a "chilling effect" on speech, but that doesn't mean they violate the First Amendment. ·
This is my understanding, too. What have the lawyers to say on this?
May '10
Re: Hateful Speech at a Military Funeral: A Hard Case?
Well said, Adam.
How much civility has been lost since politicians decided fistfights are barbaric and had to be stopped? It's like kindergarden never ended.
Sep '10
Re: Hateful Speech at a Military Funeral: A Hard Case?
There is a widely-held misconception that Freedom of Speech means that you can say whatever you want, and everyone else has to swallow it and like it. That is not true. The First Amendment does not protect you from social consequences.
If you say vile, outrageous things and people stop inviting you to their parties, that is a social consequence. If you go to work for a pro-life periodical and start spouting pro-abortion slogans, they can fire you. That is a logical consequence. If you walk into a black bar and scream the "N" word and wind up in the hospital, that is a logical, social consequence. As Kenneth suggests, a "poke in the snoot" is a very effective way of reinforcing social boundaries.
I grew up in the backwoods of Pennsylvania with some pretty hardnosed people. If Phelps and his foul, cowardly brood had ever interrupted a military funeral out there, they would never have been seen again. That would be a logical consequence, too, and, in a larger sense, Natural Justice would be served.
Sep '10
Re: Hateful Speech at a Military Funeral: A Hard Case?
Aaron Miller: Well said, Adam.
How much civility has been lost since politicians decided fistfights are barbaric and had to be stopped? It's like kindergarden never ended. · Sep 7 at 4:28pm
In fact, there is entirely too much civility in American public life. You cannot have a good, honest open debate without passion. People must have the chance to get heated up. You have to allow rough words, some pushing & shoving, maybe even some chair throwing. If all people do is push words back & forth in a bland monotone like a bunch of robots, their humanity never shows through. You never find out where they really stand or what they really believe in.
Aug '10
Re: Hateful Speech at a Military Funeral: A Hard Case?
Very true. Almost every consequence of speaking freely is and ought to remain social.
There are a few acts of speech, however, like slander, copyright or patent violation, fighting words or incitement to lawless action, that not only have social consequences, but aren't legally protected under the First Amendment and so may also have legal consequences.
Speaking of which, could Phelps & co's heckling be classified under "fighting words" as unprotected speech? After all, the consensus here seems to be for reflexive snoot-poking.
Re: Hateful Speech at a Military Funeral: A Hard Case?
Midget Faded Rattlesnake
Speaking of which, could Phelps & co's heckling be classified under "fighting words" as unprotected speech? After all, the consensus here seems to be for reflexive snoot-poking. · Sep 7 at 5:09pm
Thank you MFR. That was the question I was going to raise, only I had to find a place to park my truck so I could raise it. For the legal minds: Is there a practical difference, in terms of prohibitions, between "fighting words" and "Intentional Infliction of Emotional Distress?"
I know that in the town I live in now, when we bury one our own military heroes, or even when we have a Veterans Day or Memorial Day observance, we are literally surrounded by the good people of the Patriot Guard. As far as unintended consquences go, the Patriot Guard is a wonderful response to the vile Phelps and his vagabond band of cowards, and nut jobs. They should have the strength of their convictions and stop picking on the dead, who cannot respond. Come on down to the VFW, Phelps, and let's have a real come to Jesus moment.
Jul '10
Re: Hateful Speech at a Military Funeral: A Hard Case?
The First Amendment actually WOULD cover this. Recall New York Times Co. v. Sullivan, the famous libel case: there, the Supremes held that Alabama libel law violated the Free Speech clause because of the chilling effect. There wasn't any prior restraint, but that didn't matter.
As an Official Liberal Troll on the site, I agree with everyone that the speech here is disgusting. I also would not be too upset if he woke up with a horse's head in his bed....
Re: Hateful Speech at a Military Funeral: A Hard Case?
Well, that pretty well sums up what we need to know about the legal system. We certainly wouldn't to have a chilling effect on libel, now would we. There is a precedent for every conceivable insult to human intelligence.
Jonathan, I'm with you on that one, though the horse didn't do anything to deserve that fate. But think of the poetic justice, a horse's head on one pillow, and the other end of the horse on the other pillow. Perfect.
Jul '10
Re: Hateful Speech at a Military Funeral: A Hard Case?
Uhm, Parsons, there is freedom of speech, but there is no freedom of assaulting someone for what they said, your "social consequences." Anyone has every right to yell the "n" word free from being assaulted. Everyone is free from a "poke-in-the-snoot" regardless of what is uttered from their lips. And We have graduated from "natural justice."
Jul '10
Re: Hateful Speech at a Military Funeral: A Hard Case?
Dave Carter (Sorry, I don't know how to embed yet): Great Britain's libel laws are much more pro-plaintiff than ours, so it's much easier to sue someone for libel there than here. But I think we do it better here. More speech isn't always better, but I'd be willing to bet that way if I had to. Example: David Irving, a "historian" (to use that term loosely) who insist that much of the Holocause didn't happen, repeatedly sues people under British libel laws for saying he's a Holocaust denier. Deborah Lipstadt, a distinguished historian of the Holocaust, had to spend tens of thousands defending herself for disagreeing with Irving in print. http://www.amazon.com/History-Trial-Court-Holocaust-Denier/dp/0060593776/ref=sr_1_1?ie=UTF8&s=books&qid=1283908102&sr=8-1
Imagine if you had to defend yourself in a libel case every time you criticized a politician. The Sullivan case arose because segregationists nearly shut down the NYT's coverage of the civil rights movement.
There are problems with the difficulty here of suing for libel, but I'd rather have our problems than Britiain's.
Re: Hateful Speech at a Military Funeral: A Hard Case?
But Zas, there's a difference, I think you'd agree, between a funeral and a newspaper. People can put the newspaper down if they don't like the content. But the attendees at a funeral (particularly the deceased's father) are a captive audience -- you don't have the same right to inflict your speech on them because they can't escape. Similarly, courts have held that buskers and panhandlers on the NYC subway have no First Amendment right because the straphangers (me included) can't escape. I think the same principle would apply here, no?
Besides, my position is supported by none other than Harry Reid, whose amicus brief (joined by Mitch McConnel and other senators) supports the father. Are going to defy Harry Reid?
Jul '10
Re: Hateful Speech at a Military Funeral: A Hard Case?
Maybe you have. I'm still a poke-in-the-snoot guy.
Aug '10
Re: Hateful Speech at a Military Funeral: A Hard Case?
What I got out of Parsons's comment is that
I don'tt recall him calling a poke in the snoot a legally protected action, just effective. Effective and protected are different.
And provocation might exculpate an offense to a certain degree.
Jul '10
Re: Hateful Speech at a Military Funeral: A Hard Case?
Adam, you have a point there: I was just arguing that the First Amendment goes farther than just banning prior restraints. But Eugene might be right about the problem: if you can ban speech from a funeral, which is a private affair, could you ban speech from a private university? Students are SOMEWHAT captive there as well. I'm wary, but could be persuaded. This is going to turn on some subtleties about the nature of the forum and the degree of captivity. (Marlon Perkins will make a guest appearance).
Going against Harry Reid is easy! That's why there ISN'T a liberal conspiracy: we never listen to anyone. You guys are much better than us at being on-message. I'm also supposed to be part of a Jewish conspiracy, and I haven't gotten my orders on that one, either.
May '10
Re: Hateful Speech at a Military Funeral: A Hard Case?
The relevance of Times v Sullivan is how libel laws relates to public figures. It can not be said that the soldiers families were, in any shape or form, people who sought the public limelight.
It also established the legal concept of "actual malice." None of which is at play here.
Edited on Sep 7, 2010 at 6:45pmSep '10
Re: Hateful Speech at a Military Funeral: A Hard Case?
Jimmy, you can argue all day about your right to speak out without getting a poke in the snoot. In theory, I tend to agree with you. But I prefer to live in the Real World. Let us return to my "N" word scenario. Go to a black neighborhood. Pick the toughest bar you can find. Walk inside and scream the "N" word at the top of your lungs. Then announce smugly to the patrons that you are untouchable because of the First Amendment. I will be standing by to retrieve your teeth from the floor. And if you haul the rowdy patrons into court for assault & battery, how much sympathy do you think you will get? Judge Judy would laugh you right out of court. Under the circumstances I described, not even an all-white jury of KKK members would decide in your favor.
May '10
Re: Hateful Speech at a Military Funeral: A Hard Case?
Short of an actual intervention by government agents to put duct tape over my mouth or remove the plates from my printing press, what is the difference between "prior restraint" and post-speech punishment? Doesn't the punishment serve as the prior deterrent to speech?