The $10.9 Million Verdict Against the Phelpsians:

To see the posts on this subject from beginning to end (rather than in the blog-normal reverse order), click here.

Eugene - Thanks for these posts; I plan to go through each of them. I have a preliminary question: Why do you say up front in your opening post that you find Phelps' speech disgusting? I'm not asking why you *find* it disgusting, but rather why you *announce* that disgust. Is it because, if you blogged about the case in a detached academic way (and came down on Phelps' side in certain respects) you think readers would (illogically) think you're in agreement with Westboro's message and tactics? From the Solomon Amendment debate to Ahmadinejad at Columbia to Imus on air and Dog the Bounty Hunter on television, I'm always amazed at the willingness of people to reason "Because you're hosting/partially siding with X, you must be condoning what X is all about." To make it clear that you're not a Westboro Baptist Church kind of guy is, to me, stating the morally obvious, and I'm just curious as to why you spend the words to do that.
11.7.2007 7:36pm
Eugene Volokh (www):
HUA: (1) I expect that some readers -- I hope only a few -- will suspect, even if subconsciously, that when I defend a group's free speech rights I'm endorsing their speech.

(2) That may be especially likely if other blogs link to my posts, which may bring readers who don't know my work well but who see me as being on the other side from them politically: Sometimes people are prepared to assume the worst about the motives of their political adversaries.

(3) I wanted to stress that I not only disagreed with Phelps' speech but shared the disgust that I suspect most people feel at it.

(4) Finally, I wanted to implicitly remind people that sometimes the First Amendment requires us to protect even the speech that disgusts us.
11.7.2007 7:45pm
Siona Sthrunch (mail):
Does this public, aggressive defense of Phelps hurt or help the cause of First Amendment jurisprudence?

The Phelps speech is probably the least sympathetic ever litigated, and the privacy rights of the family are extraordinarily sympathetic. Why use this as a test case, or lend it extra publicity?

I am no First Amendment expert, and certainly not in the same league as Volokh, but aren't the greatest threats to the First Amendment nowadays issues like campaign finance reform, academic speech codes, decency legislation, and the fairness doctrine? There, we have plenty of sympathetic test-cases.

Here, by contrast, doesn't defending Phelps simply help the cause of those who want to weaken the Amendment by underscoring the desirability of the kind of "balancing test" a court is likely to use to uphold a substantive speech restriction?

It seems to me that the more this issue is discussed, the more the powerful anti-free-speech crowd succeeds in framing the First Amendment as an anachronistic nuisance, just as they have done so successfully with the Second, Fourth, and Tenth Amendments. Frankly, I think that one of the key ways in which the statists have succeeded in weakening those three Amendments beyond anything the Framers could have dreamed is by very judicious selection of test cases and media coverage. (E.g., school shootings getting infinitely more press coverage than self-defense shootings; Fourth Amendment/1983 plaintiffs usually utterly guilty; Tenth Amendment arguments used to defend repugnant state practices). Why play into the statists hands with another terrible test case?
11.8.2007 2:05am
I'm not even a lawyer. So can anyone clarify for me: Is it now *illegal* to be a dickhead? When did this happen? Has Jim Moran been informed?
11.8.2007 3:00am
Hoosier wrote:

I'm not even a lawyer. So can anyone clarify for me: Is it now *illegal* to be a dickhead? When did this happen? Has Jim Moran been informed?

I live in Jim Moran's district. We keep him around so we have someone to laugh at. Go pick on somebody else's dickhead.
11.8.2007 9:14am
Eugene Volokh (www):
Siona Shtrunch: As I tried to make clear in my posts on the subject, allowing liability in cases such as this one will help lead to the suppression of other speech -- including, for instance, through campus speech codes.
11.8.2007 10:39am
well deserved applause:

This set of posts is one of the best one day storms of blogging I have ever had the pleasure of reading. Your dissection of the issue is extremely lucid, rational, and insightful. I'm not sure I've ever read an analysis of a legal issue which has so revealed to me the way in which our private senses of justice must be subtly transformed to make a fair set of laws. Truly, this is blogging at its theoretical best.
11.8.2007 10:44am
Pluribus (mail):
HJA wrote:

I have a preliminary question: Why do you say up front in your opening post that you find Phelps' speech disgusting? I'm not asking why you *find* it disgusting, but rather why you *announce* that disgust. . . . I'm just curious as to why you spend the words to do that.

Personally, I thought Prof. Volokh's answer was rather good. I'm just curious why you "spend the words" to ask him why he "spends the words" to do that. I didn't think there was any doubt about his intent.
11.8.2007 3:27pm
Dear Prof.

I have been following your comments on Snyder, and frankly find them not just unpersuasive, but, your arguments on why IIED and violation of the family's right to privacy unconstitutional as violating the First Amendment, quite disappointing. The First Amendment is not the only constitutional consideration involved, and the rights of the protestors to exercise their First Amendment rights are not the only rights. The First Amendment does not protect someone from the consequences of his speech in a carte blanche manner. The rights of the family of a deceased are also protected. When considering the rights of Mr. Vincent Foster (who, unlike the family in Snyder, was a public figure), Justice Kennedy in National Archives &Records Administration v. Favish,5 41 U.S. 157, 167-69 (2004), writing for an unanimous Court, said:

"Burial rites or their counterparts have been respected in almost all civilizations from time immemorial. See generally 26 Encyclopaedia Britannica 851 (15th ed. 1985) (noting that "[t]he ritual burial of the dead" has been practiced "from the very dawn of human culture and . . . in most parts of the world"); 5 Encyclopedia of Religion 450 (1987) ("[F]uneral rites . . . are the conscious cultural forms of one of our most ancient, universal, and unconscious impulses"). They are a sign of the respect a society shows for the deceased and for the surviving family members. The power of Sophocles' story in Antigone maintains its hold to this day because of the universal acceptance of the heroine's right to insist on respect for the body of her brother. See Antigone of Sophocles, 8 Harvard Classics: Nine Greek Dramas 255 (C. Eliot ed. 1909). The outrage at seeing the bodies of American soldiers mutilated and dragged through the streets is but a modern instance of the same understanding of the interests decent people have for those whom they have lost. Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own.

In addition this well-established cultural tradition acknowledging a family's control over the body and death images of the deceased has long been recognized at common law. Indeed, this right to privacy has much deeper roots in the common law than the rap sheets held to be protected from disclosure in Reporters Committee. An early decision by the New York Court of Appeals is typical:

"It is the right of privacy of the living which it is sought to enforce here. That right may in some cases be itself violated by improperly interfering with the character or memory of a deceased relative, but it is the right of the living, and not that of the dead, which is recognized. A privilege may be given the surviving relatives of a deceased person to protect his memory, but the privilege exists for the benefit of the living, to protect their feelings, and to prevent a violation of their own rights in the character and memory of the deceased." Schuyler v. Curtis, 147 N. Y. 434, 447, 42 N. E. 22, 25 (1895)."

IIED is recognized as a cause of action in every jurisdiction. The "founder" of the "church" doing the protests is a disbarred attorney. He knew, or should have known, about the tort of IIED. The protests were intended to be extreme and outrageous, and to cause emotional distress to the families of the deceased service members, and accomplished their objective. Unlike Falwell, they did not choose to become public figures. The "church" members decided to thrust the family's private grieving into the public arena.

There is no more a "slippery slope" involved in this case than in any other case in which the recognized rights of different persons come into conflict. Whether the compensatory or punitive damages are excessive can be reviewed in accordance with the state's doctrines for reviewing such damages awards. However, I see no constitutional considerations there. The protestors were allowed to exercise their First Amendment rights. Now, they face the consequences of the manner in which they chose to do so, since they chose to do so by violating the protected rights of others.
11.8.2007 5:45pm