pageok
pageok
pageok
The Phelpsians' Speech, the Mohammed Cartoons, and the Slippery Slope:

If the Phelpsians magically went to their reward tomorrow, public debate would suffer very little. But I think their speech needs to be protected, because allowing the restriction of such speech — especially using the "intentional infliction of emotional distress" tort — would lead to the restriction of much more valuable speech.

Now it's true, as many have argued, that the Phelpsians' speech is legally distinguishable from other speech that should be protected. A judge or jury could certainly hold other speech protected, even though some see it as outrageous and severely emotionally distressing, even if the verdict against the Phelpsians is upheld.

But to me the important question isn't whether the other speech is legally distinguishable from the 1000-feet-from-the-funeral picketing — it's whether the speech will indeed reliably end up being legally distinguished. I worry that it might not be, because judges and juries will be more likely to accept restrictions on other speech once the rationale of the anti-Phelpsian verdict is accepted. Let me briefly explain.

Consider a hypothetical scenario: The University of Maryland decides to discipline students who hold a demonstration carrying posters that display the Mohammed cartoons. The University disciplines for violating some sort of rule that bars the creation of a "hostile educational environment" for various religious groups, or for that matter a rule that bars "conduct or speech that is outrageous, and that intentionally or recklessly inflicts severe emotional distress on some students." One can of course imagine many other similar hypotheticals; I don't want to suggest that the bottom of this slippery slope would implicate the Mohammed cartoons and nothing else. I just thought that focusing on one concrete hypothetical would be helpful.

So assume Snyder v. Phelps is indeed upheld on appeal — perhaps based on some of the arguments made by commenters who defended the verdict — and thus becomes a binding precedent. Let's compare Snyder to the University of Maryland's action, as the University will defend it:

 The award in Snyder v. Phelps. The hypothetical University of Maryland decision.
1. Impact of government action on defendant$10.9 million in liability, imposed by the government acting as sovereign — likely enough to ruin defendants financially. Modest disciplinary action by a university, which might indirectly but likely at most slightly affect the student's educational and professional prospects.
2. Content of speechOutrageous in the view of the jury, and of all decent people. Outrageous in the view of the University of Maryland administration, and harshly condemned by many leading political and religious actors, of many denominations.
3. Impact of speech on the distressed personMillions of dollars' worth of emotional distress (as found by jury). Serious emotional distress, which interferes with students' focus on their studies, and perhaps their eventual academic performance (as found by University, and as testified to by offended students).
4. Impact of speech exacerbated byFather's grief at his son's death. Muslim students' sense that they and their religion are held in contempt by many classmates and other Americans.
5. Effect of speakers' statusFather can at least feel that the speakers are a tiny and hated minority, and the speakers' views are reviled by his fellow citizens. Muslim students reasonably suspect that the speakers represent a substantial minority of Americans, and the speakers' views are agreed with or even admired by many.
6. Alternative avenues for speechThe Phelpsians might not have been held liable if they had picketed in a different place or time — much more than 1000 feet from the funeral, or when no funeral was in progress (though the emotional distress tort didn't require the jury to draw such a distinction). "The constitutional value of speech that [is] intended to cause severe emotional distress is what, exactly? That valuable ideas may not be susceptible [to] expression any other way? Doesn't the fact that we accept time, place and manner restrictions suggest that we don't buy that reasoning?" The students would not have been disciplined if they had expressed their views in a different place or using a different manner — off campus, or not using the Mohammed cartoons. "The constitutional value of speech that [intentionally, knowingly, or recklessly blasphemes against some people's revered religious lieaders] is what, exactly? That valuable ideas may not be susceptible [to] expression any other way? Doesn't the fact that we accept time, place and manner restrictions suggest that we don't buy that reasoning?" And now that we have abandoned as to Phelps the general requirement that "time, place, and manner" restrictions be content-neutral, this argument is even stronger.
7. Targeting towards the distressedThe Phelpsians were generally speaking about America, God, and homosexuality, but in a way likely intended to tie their argument to the private figure plaintiff's son's funeral (again, the emotional distress tort didn't require the jury to rest their verdict on this conclusion). The students were generally speaking about Islam, but in a way that may have been intended to confront their private figure Muslim classmates, and that was in any event reckless about whether their Muslim classmates would see the speech and be distressed by it.
8. Intrusion on privacyWhile the speech was on a public street, it was 1000 feet away from a funeral, which was a private activity. While the speech was at a public place in a public university, the speech was 1000 feet or less away from the dorms, which contain people's private homes.
9. Tendency of speech to cause violent reaction by the distressedIt's possible that people would beat up the Phelpsians. There've been many violent incidents, some deadly, caused by outrage over the speech, though fortunately so far only outside the U.S.
10. Supposedly countervailing private rightsRestricting this speech is fine because "the right to mourn one's dead child in peace would seem to be protected by the other part of the First Amendment having to do with free exercise of religion. (Government action being implicated because ... family and friends of the deceased [are legally] prevented from, or punished for, exercising their natural right to chase the protesters out of sight or hearing of the funeral.)" Restricting this speech is fine because "the right to [not be exposed to deeply blasphemous attacks on one's religion] would seem to be protected by the other part of the First Amendment having to do with free exercise of religion. (Government action being implicated because ... Muslim students [are legally] be prevented from, or punished for, exercising their natural right to chase the [cartoon displayers] out of sight or hearing of [their paths home to their dorm rooms, classrooms, or mosques].)"
11. Protecting individuals who are distressed"Free speech isn't speech without consequences. It seems very clear that some speech may in fact inflict actual damages on an otherwise innocent individual. This is especially true for non-factual opinion speech directed at an otherwise private person. Why is the innocent target the party that must [bear] responsibility for the damage?" "Free speech isn't speech without consequences. It seems very clear that some speech may in fact inflict actual damages on an otherwise innocent individual. This is especially true for non-factual opinion speech [directed at, or recklessly waved in front of] an otherwise private person. Why is the innocent target the party that must [bear] responsibility for the damage?"
12. Harm inflicted by speech"[S]peech isn't the issue here except that it was the Phelpsians' weapon of choice in committing battery. The First Amendment no more protects a right to do this than the Second Amendment protects one to commit murder." "[S]peech isn't the issue here except that it was the [students'] weapon of choice in [effectively slapping their Muslim classmates' faces or spitting in their eyes]. The First Amendment no more protects a right to do this than the Second Amendment protects one to commit murder [or battery or what have you]."
13. The need for social consensus on minimum standards of decency"Society rests, not on law but on at least a rough consensus of what proper behavior is: the Phelpsians are far beyond the Pale." Now that we've established the need to restrict speech that falls beyond the Pale, we need to make clear that this speech — which is just as outrageous and distressing to our Muslim fellow citizens as funeral picketing is to us — is equally beyond the Pale. Otherwise, our failure to equally suppress the Mohammed cartoons will itself harm Muslims, by showing them that we don't take their most deeply felt concerns as seriously as we take our own.
14. TraditionThe intentional infliction of emotional distress tort has been around for decades. Blasphemy laws have been around for centuries, and were in fact used in 1800s America to restrict offensive religious speech.

Given this, do you think that upholding the verdict against the Phelpsians would pose no risk of strengthening the university's hand in restricting the Mohammed cartoons? Don't imagine what would happen if you were asked to make the judgment. Ask what is likely to be done by administrators, judges, and jurors who may well differ from you. Are you confident that a court would indeed distinguish the two scenarios (perhaps under rubrics 7 or 8) — or do you think that, once the Phelpsians' speech is held to be unprotected, the court would defer to the university's decision, on the theory that the two kinds of speech are similar enough even though not identical?

Do you perhaps think that, even if there is such a risk, restricting the Phelpsians' speech is so important that it justifies running that risk? Or do you think that the extra risk is a feature rather than a bug, since universities — and others — should indeed have more power to punish blasphemous, severely distressing criticisms of others' religions, when such criticism is seen by many as being "outrageous"?

As you might gather, I think it's better to protect the Phelpsians' speech, appalling as it is, than to allow its restriction — because by allowing the restriction, we'd be giving a powerful extra tool to those who would restrict a great deal of other speech.

Hewart:
I understand the argument and it's very persuasive. I guess the reason I'm not wholly sold on it is that the Phelpsians intentionally target a venue which will have the most emotionally distressful impact to enhance the media attention for their screed.

In that regard, they are intentionally inflicting emotional distress as a viral carrier for their message. It may not be a bright line, but it seems that there has to be some kind of common sense boundary for that kind of invidious and callous preying on people in grief as a means to springboard their own sociopolitical views into the headlines.

Furthermore, funerals are such socially sanctified events in our society that intentionally crashing one -- and especially to chant that the death of the loved one is a good thing -- would seem to shock the conscience of civilized society.

Taken together, I'm okay with some kind of proscription on these kinds of protests at funerals.
11.13.2007 7:36pm
Eugene Volokh (www):
Hewart: I appreciate your point, but I suspect that many who display the Mohammed cartoons in public places are also intentionally using a format that will have the most emotionally distressful impact to enhance the media attention for their message. And the names and images of religious leaders are generally socially sanctified in our society, too.

Would there then be a common sense reason for universities to therefore ban such displays? How about for courts to authorize $10.9 million damage awards over such displays? Even if you would oppose such restrictions, are you confident that courts will reject the arguments for upholding the restrictions?
11.13.2007 7:45pm
Bill Poser (mail) (www):
I agree with your analysis: speech that we find extremely offensive must be protected if we are to protect speech that does not offend us, which in this case, for me, means protecting the Phelpsians so as to protect criticism of Islam. In any case, I simply don't accept the so-called right not to be offended. The legitimate interests of the parents of soldiers targeted by the Phelpsians are adequately protected by keeping the protesters at a distance so that they can't harass them at the funeral. However much we may sympathize with those parents, they have no more right to be protected from speech that may offend them than do people whose ideology is considered contemptible by many others.

My only other comment is that I find it odd that people consider that criticism of a religion should be offensive, especially when what is criticized are not beliefs in their own right but actions and what are taken to be the political implications of religious beliefs. If it is acceptable to express contempt for communism, naziism, anarchism, or bourgeouis liberalism, why should it be outrageous to express contempt for Islam, fundamentalist Christianity, or (as religious people in fact often do) atheism?
11.13.2007 7:48pm
Nate F (www):
As a former Terp, I must ask: Why Maryland? Did I miss something, or does it just strike you as that type of place?
11.13.2007 8:12pm
The Emperor (www):
Your examples don't seem remotely similar. If the U of M demonstration involved protesting at the table of a muslim student who was having dinner which his family, then I could see the comparison (and I would have no problem banning that speech as well).

One point that seems to be missed in all of this is that the Phelps speech is not banned. They can say what they want in 99.9% of places they want to. What's the big deal if they can't say it at funeral or, say, in a movie theater while a movie is being shown?
11.13.2007 8:29pm
Thoughtful (mail):
EV: You concluded "or do you think that, once the Phelpsians' speech is protected, the court would defer to the university's decision," Is that right, or did you mean, " or do you think that, once the Phelpsians' speech is NOT protected, the court would defer to the university's decision,

[D'oh! Fixed it, thanks! -EV]
11.13.2007 8:30pm
Latinist:
"But to me the important question isn't whether the other speech is legally distinguishable from the 1000-feet-from-the-funeral picketing -- it's whether the speech will indeed reliably end up being legally distinguished."

And maybe there's another important question: whether the distinction is clear and understood by non-legally-trained potential offensive speakers (and, for that matter, potential legislators and prosecutors). I worry that, say, relatively civilized anti-homosexuality or anti-abortion speakers might be chilling-effected into silence, even if the actual decision protected them.
11.13.2007 8:32pm
Owen Hutchins (mail):

Your examples don't seem remotely similar. If the U of M demonstration involved protesting at the table of a muslim student who was having dinner which his family, then I could see the comparison (and I would have no problem banning that speech as well).


A closer comparison would be that the demonstration were taking place 1000 feet away from the dinner table, on the public street. Still willing to ban that speech?
11.13.2007 8:33pm
The Emperor (www):
A closer comparison would be that the demonstration were taking place 1000 feet away from the dinner table, on the public street. Still willing to ban that speech?

If you mean that people are holding a protest involving muhammad cartoons, and they have chosen to hold that protest 1000 feet away from a muslim family having dinner at a restaurant, solely because they know that family is muslim and they are trying to get as close as possible to this particular family, then damn right I would ban it. That kind of behavior pretty clearly crosses the line between free speech and harassment. If it were a close call, maybe I'd err on the side of free speech. But it's really not a close call at all. You can say whatever you want. You just can't harass specific individual when doing it.
11.13.2007 8:49pm
John (mail):
The issue, I think, is not one's freedom to speak. It is one's right to specify his audience. The latter lacks the same level of protection as the former.
11.13.2007 8:49pm
The Emperor (www):
John put it much better than I did. I agree completely.
11.13.2007 8:55pm
frankcross (mail):
Well, it's not just the Phelpsian speech, this is generally a critique of the IIED cause of action, where so many claims involve speech. Of course, the USSC limited the tort, where public figures were involved, in Falwell.

I think the key defense for the tort is the targeting of particular individuals. If there were but a very few Muslim students at whom the posters were aimed, maybe IIED would be recognized and the slippery slope applied. But yours seems like a broader attack on all sorts of harassment liability. Under your critique of the Phelps decision, wouldn't all cases of verbal harassment (sexual, racial, or whatever) risk the slippery slope you fear? Is that a basis for eliminating the claims?
11.13.2007 9:01pm
BruceM (mail) (www):
The fact that it's worse to be a defendant in a lawsuit (I'm presuming the phelpsian's are all judgment-proof) than to be, and publicly be known as, the people picketing the funerals of dead U.S. soldiers, says a lot about our society.
11.13.2007 9:13pm
Andy Freeman (mail):
> If you mean that people are holding a protest involving muhammad cartoons, and they have chosen to hold that protest 1000 feet away from a muslim family having dinner at a restaurant, solely because they know that family is muslim and they are trying to get as close as possible to this particular family, then damn right I would ban it.

What if they did it within 1000 feet of a muslim fraternity or mosque? Assume, for the sake of argument, that they're not targetting specific individuals but that they are protesting near where muslims are likely to be.

What if the Imam makes it specific by coming out and talking to the protestors? Next time they protest, they know that he's there. Is that harrassment that should be banned?
11.13.2007 9:55pm
The Emperor (www):
Assume, for the sake of argument, that they're not targetting specific individuals but that they are protesting near where muslims are likely to be.

That's a tougher call. I'm not sure. But in both the Phelps example and mine, they are targeting specific individuals, which makes it an easy decision.
11.13.2007 10:09pm
Kazinski:
I totally agree with EV on this issue, there should be no tort of infliction of emotional distress. Nor should there be any ordinances that ban any speech.

That doesn't mean that there should be no remedy available, the Phelpsian's speech was by almost any definition fighting words. The Legislature should, by statute, create an affirmative defense to the crime of "Tar and Feathering", when the target of the said tar and feathers, have beyond a reasonable doubt directed fighting words at the defendant. The defense should also extend to whoever may assist the defendant with reasonable force to apply said tar and feathers. A 96 year old woman shouldn't have to heat the tar and get the feathers herself, but should be able to get the help she needs.

That's the way the founding fathers would have handled the issue.
11.13.2007 10:14pm
sbw (mail) (www):
Sometimes court is not the proper venue and justice is not served by legal punishments. The freedom to offend is the most fundamental principle of society, but freedom to offend does not imply the necessity. That follows because the second most fundamental principle of society, and one that springs from the first, is reciprocity -- respect for others -- who live their life as acutely as we do.

The necessary response would be education, not punishment, but that is ex post facto, and too late to undo the damage. No. The best circumstance is education up front, to explain what are the minimum requirements of society and why they are in our own self interest.

The real task, and one not addressed by schools, is to identify what are the minimum requirements of society -- where society is defined as the edges where any two cultures meet.
11.13.2007 10:22pm
Richard Aubrey (mail):
Having been on the receiving end of such--at one remove--what annoyed me was not the message but the presumption of the caller that he had the right, or could have the fun, at the expense of others.

Now, with called ID, we don't see so much of that.

So, IMO, the distressing part of the Phelpsters is not whether I hear every word, but the fact that there are buttheads out there who get off on this crap. And the worse I seem to feel, the better they feel.
I can see murder (justifiable homicide) as a private matter, maybe, but still not restriction by the state.

Among other things, U-Maryland and forty-leven other universities would do exactly what the poster said, and restrict considerably more than the motoons.
Remember, the U doesn't have the slightest intent that this will go both ways. As blacks can't be racist, white Christians can't be insulted. Not that there's a connection, but the point will be made that crapping on the privileged racists (U-Delaware) is not only justified, it's practically a duty. And they have no right to complain. So no complaints will be entertained.
However, since the issue will get to be the infliction of emotional distress, there will be an increased incentive to feign emotional distress to get the U, or the state, to shut up arguments you can't handle otherwise. But only for some.
EV's university hypothetical doesn't go as far as some universities are prepared to go now, if they haven't already.
11.13.2007 10:27pm
Mark T (mail) (www):
Most people would consider me as libertarian as they come, but this issue just doesn't implicate a lot of free speech concerns to me. IIED is generally speaking (and at least in Maryland, as I recall) a common law, rather than a statutory, issue. It's based on a case by case test, and I just don't see any reason why the slope will slip in this case.
The big thing to me in this case is the "intentional infliction" part of the test. I don't care what your speech is, if the goal of that speech is to intentionally inflict emotional anguish severe enough to have physical symptoms (usually the standard in IIED, IIRC), then it goes beyond a free speech issue and into a question of intentional harm to another.
But to be honest, I didn't follow the case closely enough to know the specifics of how the jury was asked to use the criteria.
11.13.2007 10:30pm
TruePath (aka logicnazi) (mail) (www):
Now I've been on the receiving end of some very nasty speech with no other aim but to cause emotional distress but unlike Mr. Aubrey (I think) and some other commenters I simply don't find this a compelling reason to act.

When we see some behavior that is (in our view) obviously wrong or unacceptable we feel a strong emotional compulsion to do something about it. Bad acts just call out to be punished and it just feels wrong to shrug and say well shit happens. However our reaction that 'something must be done' is fundamentally a fallacy. No matter what the law says we can't make society perfect and the question is whether the suffering averted by a legal/judicial policy is more than the cost of the solution and in situations like this the rarity of Phelpsian type behavior is strong evidence that the cure would be worse than the disease.

In other words we need to second guess our emotions in situations like this because our immediate reactions are evolved to deal with small social groups not societies of millions. As a result we have a great deal of trouble properly appreciating the massive harm that can result from even a small legal change applied to millions while overestimating the relative badness of singular incidents of bad behavior in such a large society.
11.13.2007 11:12pm
Richard Aubrey (mail):
Truepath. I don't think the state ought to silence the Phelps bunch. I do think that, were a grieving relative to kill half a dozen of them, I'd be sympathetic to a defense of impaired or diminished judgment, or whatever they call it. You can't just go around murdering people, but a couple of months' community service would seem okay.
Point is, it's not the state.
And if the state does shut them down in some way, there are any number of institutions ready to make EV's U-Maryland hypothetical look pretty tame with that as precedent.
11.13.2007 11:30pm
Ken Arromdee:
If you're going to claim that the funeral protests are fighting words, wouldn't Mohammed cartoons count as well?
11.13.2007 11:53pm
John Kindley (mail) (www):
Or how about another hypothetical: protestors outside a Catholic Church on Sunday morning carrying signs calling the Catholic Church the "Whore of Babylon," or making the factual statement that "X number of priests have raped boys," or "This Church's bishop swept child rape under the rug," or any of many other things people could and do say against the Catholic Church. Perhaps some of them are carrying a defaced Crucifix or other image outrageously offensive to Catholics. I raise this hypothetical as an alternative to the Mohammed cartoon hypothetical for several reasons: I was the source of the comment suggesting the family of the deceased's countervailing First Amendment "free exercise of religion" right to mourn their child in peace in point 10 of Eugene's post; the different examples of speech that might be exercised at the Church protest highlight the difficulty of drawing a bright line defining outrageous and unacceptable speech, particularly when you consider that one of the people holding such a sign might have themselves been abused by a priest and be justly angry at the Church and/or its policies; and the targeted nature of the protest and its encroachment on the space of people doing what they clearly have a right to do who presumably are unwilling recipients of the protest "speech," which for me has been key to my belief that the Phelpsians' funeral protest was not protected by the First Amendment, and which seems clearer in this Church protest hypothetical than in a Mohammed cartoon demonstration on a college green.

I raise the hypothetical to myself to see if I can indeed distinguish in my own mind what seems to me an even harder hypothetical than the one Eugene raised from the Phelpsians' funeral protests. As a former Roman Catholic, I consider myself for the most part "Catholic-friendly," but I do think the hypothetical protesters I'm contemplating would have the right to make such a protest on a public street outside the Church, and that the Mohammed cartoon carriers would have the right to make their protest (and I think current First Amendment jurisprudence bears that out), so long as the protests were not so loud that they could be heard inside the Church or inside the private dormitories on campus.

Nevertheless, I still think funerals are distinguishable in a way that may make them pretty much unique (making it rather problematic to apply to them "principles" which are supposed to apply to a wide variety of cases). Among their most important distinguishing characteristics for present purposes is the fact that those "celebrating" them are typically emotionally devastated, the fact that it is virtually impossible to sensibly argue that the ceremony itself hurts anybody, and the fact that they are celebrated only once for each deceased. Protesters therefore have the potential to ruin forever a religious ceremony mourning the deceased and praying for his or her propitious journey to a favorable afterlife. As I've suggested in other threads, it seems to me that the right to mourn one's dead child in peace is every bit as fundamental as the right to free speech itself. As such, it seems that this right would be worthy of an Amendment all its own, though it would seem rather odd to devote a Constitutional Amendment to something so particular that occupies only a tiny fraction of human life. Nevertheless, it's a pretty important fraction to those who have lost a child or other loved one.

I'm not necessarily arguing for the propriety of this particular verdict, but for the propriety of a statute prohibiting anyone from protesting a funeral within sight or hearing of the funeral. I'm no big fan of the Court's propensity for inventing fundamental rights where none exist, but it seems there is room for recognition of this particular actually existing fundamental right in First Amendment jurisprudence.
11.14.2007 12:20am
Richard Aubrey (mail):
John. Periods. Every so often, periods.

The First Amendment won't be damaged much by applying issues like disturbing the peace. After all, mosques broadcast their calls to prayer and churches ring their bells, within limits.

The actual issue here is deliberate infliction of emotional distress. Bad, but not the business of the state.

WRT the motoons: I would not have run them had I been an editor someplace, as they would have been of little interest.
Once Muslims started protesting and insisting on censorship, though, I'd have run them everywhere and posted them on every vertical surface I could find. Not to make a point about Islam, but to make a point about freedom.
11.14.2007 8:06am
DJR:
The hypo, and every other hypo you can come up with, is easily distinguished by the following phrase:

"This is a far cry from Phelps."
11.14.2007 8:42am
PersonFromPorlock:
Richard Aubrey:

The actual issue here is deliberate infliction of emotional distress. Bad, but not the business of the state.

If we take a materialist point-of-view (which has been the 'scientific' POV for the last hundred years), how do we distinguish between an attack which leaves bruises and one which leaves hurt feelings? The body is injured in both cases because the body is all there is.
11.14.2007 9:04am
Andy Freeman (mail):
> That's a tougher call. I'm not sure. But in both the Phelps example and mine, they are targeting specific individuals, which makes it an easy decision.

The "targetting specific individuals" requirement can be easily met by the Imam who comes out to talk with the protestors, or just identify himself to them. Since he'll likely be present during future protests, those protests are now arguably "targetting specific individuals".

Should protests be limited to arguments against the generic?
11.14.2007 9:41am
Ken Arromdee:
Among their most important distinguishing characteristics for present purposes is the fact that those "celebrating" them are typically emotionally devastated, the fact that it is virtually impossible to sensibly argue that the ceremony itself hurts anybody, and the fact that they are celebrated only once for each deceased.

If emotional devastation can be considered, you're basically turning this into a game of outrage, where the more someone would be outraged by the protest, the less protection the protest has. While it's not devastation per se, it's clear that people who don't like the Mohammed cartoons have a strong emotional attachment to the idea that Mohammed should never be depicted, and that seeing those cartoons is, at least for some of them, deeply upsetting in a way that Westerners would only experience in situations such as funeral protests.

And while it's true that the ceremony itself doesn't hurt anyone, if you apply that principle to Mohammed cartoons, you'll end up with weird situations like saying it's okay to show Mohammed cartoons if you're protesting religious violence, but not okay to show them if you're merely protesting, say, a private magazine's refusal to print them.
11.14.2007 10:18am
Ken Arromdee:
Here's an analogy which in some ways may work better than the Mohammed cartoons. What about those anti-war T-shirts which use the names of dead soldiers, and which their families object to? Do we ban them on the same grounds as Phelps?

Since they name soldiers, they can be said to target individuals, or at least to have been created with the reasonable expectation that particular individuals would be offended. And while the family of the soldier mentioned might not immediately learn about the use of the soldier's name in the shirt, the same happened with the Phelps case (they first learned from a news broadcast).

(When I made this point elsewhere, someone responded that this is different because the soldiers themselves aren't being denigrated by the shirts, and the shirts are anti-Bush, not anti-soldier. I don't find this convincing; if Phelps said that the soldier had merely been duped into dying for a pro-homosexual government, I don't think things would be any different.)
11.14.2007 10:25am
Richard Aubrey (mail):
Porlock.

For practical reasons, the infliction of emotional distress should be no business of the state. Certain types of emotional distress are involved in threatening actions like stalking, and so should be considered as threats of violence.

But emotional distress is easily feigned--see college campuses--and can become a tool for censorship.

What would be the statute of limitations? As a Vietnam-era vet and brother of a dead serviceman whose family got a ration of crap, I'd be interested.

I don't know if the folks promoting criminalizing the infliction of emotional distress would really like what they're asking for. Some of their colleagues participated in the deliberate infliction of emotionial distress some wars back, and a few are doing it now.
Unless, as with such laws, they expect it to go only one way. Which would probably happen.
11.14.2007 10:56am
Porkchop:
It's been close to 30 years since I took my Torts class, but as I recall, there used to be a requirement in most jurisdictions that the emotional distress had to be linked to some physical injury. Do I recall incorrectly? Or has the law "developed" further? I certainly don't see a physical injury in the case of either the Phelpsians or the Mohammed cartoons.
11.14.2007 11:20am
Richard Aubrey (mail):
Porkchop.

"IT'S JUST AS BAD!!!"

You obviously lack sensitivity.
11.14.2007 11:35am
Aultimer:
This Terp thinks that if the student protest is conducted with the intent to inflict severe distress to identifiable individuals, then there's nothing constitutionally-valued lost when the students are disciplined, or sued for millions.

I'm much less comfortable with the "recklessly" as an alternative for "intentionally" - but we aren't talking about the tort of Reckless Infliction of Emotional Distress, are we??
11.14.2007 11:39am
American Psikhushka (mail) (www):
Kazinski-

The Legislature should, by statute, create an affirmative defense to the crime of "Tar and Feathering", when the target of the said tar and feathers, have beyond a reasonable doubt directed fighting words at the defendant. The defense should also extend to whoever may assist the defendant with reasonable force to apply said tar and feathers. A 96 year old woman shouldn't have to heat the tar and get the feathers herself, but should be able to get the help she needs.

Since you're advocating kidnapping, false imprisonment, battery, etc. based on a private citizen's perception that they've been emotionally distressed: No, that's retarded.

And that isn't how the founding fathers would have handled it. They would have told you to go to a court following Constitutional due process, not to form a lynch mob of morons.
11.14.2007 12:10pm
American Psikhushka (mail) (www):
Let's change the hypothetical because the Phelpsians' actions are pretty much indefensible.

Say you're a teenager dating a girl and you decide to stop seeing her. Unbeknownst to you until many years later, she has abandonment issues because of a constellation of different factors:

- she was molested by an uncle
- because of this she was promiscuous but would often be rejected by boys
- a coach of hers had an inappropriate sexual relationship with her
- her parents were divorced
- etc, etc, etc....

Now of course you as the teenage boy don't know anything about any of this, you just decide to stop seeing her. After you stop seeing her she commits suicide. You didn't know she was considering anything like that and had no opportunity to stop it. Nothing you did caused it, it was the rejection and other evidence confirms this. If she had gone on to date others in high school and college any of those rejections could have caused the same thing.

Now regardless of all this her father blames you and threatens you, threatens your family, threatens to rape your mother, etc. Blaming you, while wrong, is understandable with the grief and all. But the other behavior is criminal and reduces your sympathy for the person in question. In any case this blows over but then years later while you are in grad school you find out the father and his relatives are stalking, harassing, and smearing you. Obviously this isn't like the funeral example because the "distressed person" is actually a criminal engaging in criminal and tortious behavior and a criminal conspiracy with others. So is engaging in speech to defend yourself from this mentally ill criminal and his followers "intentional infliction of emotional distress", especially when they are wrong?
11.14.2007 12:38pm
JosephSlater (mail):
Porkchop:

The law has evolved to some extent. The oldest rule was that to make an IIED claim, there had to be some physical contact/harm at the time of the alleged emotional harm. Few if any courts follow that approach now. Today, some courts (maybe still the majority) require some either physical contact at the time OR some later physical manifestation of the IIED (e.g., ulcers). But some courts don't require any "physical" component at all.
11.14.2007 12:54pm
Sk (mail):
Let's create another hypothetical.

You are a white separatist. You burn a cross.
You are a white separatist. You burn a cross on the sidewalk in front of the funeral home during a funeral for an African American. You have researched when that family is going to hold the funeral for its family member, and have specifically targetted your speech at that specific family, at that specific time. Your cross will be removed.

How about another example:
You are a political activist (code pink, for instance). You loudly object to the Iraq War.
You are a political activist (code pink, for instance). You loudly object to the Iraq War, while in the US Congress during a hearing. You are escorted out.

Or a third:
You are a student trying to study. People outside your dorm are very loud. You call one of them an ass.
You are a student trying to study. People outside your dorm are very loud. You call one of them a 'water buffalo.'
You are a student trying to study. People outside your dorm are very loud. YOu call one of them a 'n*****'.

There are exceptions to speech all the time. What those exceptions are are entirely arbitrary. They simply have to appeal to the emotions of judges and law professors, who post facto come up with an (emotional) argument that is written in (legal, analytical) style. Phelps doesn't count because he doesn't appeal to the emotions of judges and law professors (law professors and judges, generally without family members in the military, see military families as 'them'). Cross burners count because they do appeal to the emotions of racial solidarity of judges and law professors (judges and law professors, because they want to appear to be racially conscious, see African Americans as 'us'). Loud protestors interfering with Congressional hearings count because they appeal to judges and law professors sense of decorum (judges and law professors, because they see political business as serious and worthy of respect, see Congressmen as 'us'). The student who yells 'ass' probably doesn't count, the student who yells 'water buffalo' probably counts for some law professors but not others, and the student who yells 'n*****' probably counts for very few law professors.

No law is absolute. Thus, every law is interpreted. Thus, slippery slope arguments don't make any sense-they don't argue for or against a certain line (what forms of speech are bannable-treason, yelling fire in a crowded theatre, insulting speech at a funeral, fighting words?)-instead, they argue that lines themselves aren't valid because they might drift over time.
But if lines aren't valid because they don't drift, and every law has an 'interpreted' line (remember, no law is absolute), this slippery slope argument is really an argument against law at all. You could summarize it with one sentence: "Laws shouldn't exist because they can be abused by those in power."

This of course is absurd, so slippery slope proponents consequently end up making slippery slope arguments when its convenient, and ignoring them when its not.

And thus, you end up with judges and law professors defending Phelps but accepting limits on burning crosses, or accepting reasonable limits on yelling (ok on the street, not so ok in the House of Congress), and attempting to logically draw the line between words like 'ass', 'water buffalo,' and 'n*****', and so on.

Sk
11.14.2007 2:38pm
Tim McDonald (mail):
I am more of the opinion that freedom of speech does not include freedom to usurp someone elses audience. Freedom of speech does not imply that people who gather for another purpose should have to listen. If the Phelpsians wanted to picked the funeral site the day before or the day after, I would fully support them. THEY INTEND HARM TO OTHERS. Their freedom stops at my nose. They deliberately schedule their protests during funerals, and I contend that is stepping on the rights of others.

Which is somewhat different from your university proposition, unless you want to contend that a one day restriction is equivalent to 300 days of restrictions?
11.14.2007 2:42pm
Stash:
Hmmm. I am heartsick that the Phelps cannot be punished by this verdict. They richly deserve it, and I would be glad of any way to uphold it. But I do not see a way to do so without violating the right to free speech. No one has mentioned the case of the proposed Nazi march through Skokie, Illinois about 20 or so years ago. Skokie was a heavily Jewish community where many concentration camp survivors were known to live. A series of ordinances specifically designed to keep the Nazi's from marching were passed by Skokie, and were serially struck down.

There is no doubt that the Nazi's intent was cause emotional distress to the residents, although they did not know or target named individuals. It seems to me that there would be little basis to distinguish these situations.

Indeed, I think the "targeting" here could be characterized as "general" as well. The protester's could not possibly know who would attend the funeral. Sure, it was highly likely that close family members would be in attendance, but sometimes illness, travel problems or accident might keep one or more from attending. So here, like the supposedly distinguishable situations, the conduct is directed at a class of people highly likely to contain those who would be offended, as opposed to "named individuals."

Did the Phelpsians know or care who the precise individuals were at the funeral? I don't think so. The distinction is artificial. What if, for example, the Phelpsians targeted a regular support group for families who had lost children in the war? The emotional trauma caused would be as severe and the intent as nefarious, but the proposed "specific targeting" of a "named individual" would not apply. It seems to me that the courts would be hard-pressed not to slide down the slippery slope. Soon it would change to a "high likelihood test" or "reasonably expected and intended" to reach "the class of individuals" the message seeks to offend, and away we go. Hard cases make bad law.
11.14.2007 4:22pm
Elliot123 (mail):
Hewart: "I understand the argument and it's very persuasive. I guess the reason I'm not wholly sold on it is that the Phelpsians intentionally target a venue which will have the most emotionally distressful impact to enhance the media attention for their screed."

While we are on the First Amendment, why not consider if the press should be prevented from reporting what Phelps and his crew said at the funeral. If it is sufficiently emotionally disturbing to hear it from 1,000 feet, is it not also sufficiently emotionally disturbing to read about it in the paper and see it on the TV news? Or read about it in legal blogs...
11.14.2007 4:54pm
Sk (mail):
"States May Outlaw Cross Burning, Supreme Court Rules
Tony Mauro
ALM
April 8, 2003

Printer-friendly Email this Article Reprints &Permissions



Ruling in an important First Amendment case, the U.S. Supreme Court said Monday that states may outlaw acts of cross burning that are intended to intimidate. The Court recited the long history of cross burning as a virulent "symbol of hate" in upholding most parts of a Virginia law that bars cross burning on public or private property.

"When a cross burning is used to intimidate, few if any messages are more powerful," wrote Justice Sandra Day O'Connor for a majority in Virginia v. Black.

But the Supreme Court also said that under some circumstances, cross burning could be a form of expression protected by the First Amendment. So, by a separate vote, the Court struck down a part of the Virginia law at issue that said jurors could presume that anyone who burns a cross intended to intimidate. "

Notice two things about this.
1) The Court rules that certain forms of speech (in this case, burning a cross 'with intent to intimidate') are not protected.
There is not a constitutional, or theoretical, difference between 'intent to intimidate' and 'intent to cause emotional harm' (or, frankly, 'intent to make the subject look silly'). It is an artificial distinction (in essence, judges on the court care about intents to intimidate, but presumably care less about intents to cause emotional harm. Thus, intimidation is not protected, emotional harm is). Distinctions between unacceptable forms of speech and acceptable forms of speech are entirely arbitrary (they may be widely accepted-like threats, for instance-but are nonetheless arbitrary).

2) the Court is confident that lower courts (and legislatures, in fact the whole judicial/legislative system) are able to determine the difference between 'intents to intimidate' and 'non-intents to intimidate'. In other words, the Court didn't argue that 'since someone down the line might abuse our 'intent to intimidate' test, we won't allow such a test to exist' -the court was willing to draw a line between acceptable and unacceptable speech. The slippery slope argument was rejected.

Thus, the distinction between acceptable and unacceptable speech was defined (thus, such a distinction is theoretically possible), even though this distinction is arbitrary and based on the preconceptions of the judges ("When a cross burning is used to intimidate, few if any messages are more powerful," wrote Justice Sandra Day O'Connor -apparently 'powerful' speech is actually what is not protected speech).

The lesson, of course, is that if one wants to be protected by the courts, one has to be of a protected class (one that the judges define as 'us' rather than 'them'). Who is the victim (i.e. who do the judges sympathize with? Who is 'us'? Who is 'them'?)? Once you establish that, you will establish whether the constitution applies.

Sk
11.14.2007 4:54pm
A.C.:
What would be the rule about holding a noisy and/or visually distracting anti-Muslim demonstration near where Muslim students were taking an important exam? Is it, or should it be, the same as holding the same demonstration where Muslim students were just walking by?
11.14.2007 4:58pm
David J. Starr (mail) (www):
It ain't about free speech. It's about busting up a funeral. The saddest thing in the world is the loss of a child. After suffering this most terrible of all fates, surely the parents are entitled to a peaceful funeral to morn the loss of a loved child. Comparisons of funerals with displays of cartoons is completely out of line, the two events are in no way comparable.
11.14.2007 5:22pm
Elliot123 (mail):
David Starr,

Many report a far stronger attachment to their god than to their chldren. Are they not entitled to peacefully entertain such sentiments without someone mocking their god and his prophets in an attempt to inflict emotional distress?
11.14.2007 6:47pm
Richard Aubrey (mail):
Elliot.

Two points. One is that most of the time, the practitioners are not in a state comparable to that which accompanies burying one's child.

Second, most of the demos I've heard about mock the practitioners of Islam, not Allah.

Not that, for purposes of free speech, it makes any difference.
11.14.2007 7:07pm
John Kindley (mail) (www):
I was sure somebody had posted in one of these Phelps threads an excerpt from a U.S. Supreme Court opinion which discussed the great respect afforded to funerals by our legal tradition and our culture. I can't seem to find it, but thought the comment was very on point. How hard would it be for the Court to extend the language in the seminal case of Chaplinsky v. New Hampshire to say: "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words," and the protest of funerals within sight or hearing of the funeral or funeral procession. I'm sure a major reason why explicit recognition of such a fundamental right does not have a longer and more venerable tradition is that until the Phelpsians no one was crazy enough to think they had a right to protest a funeral. If you ask yourself why, after all, is libelous speech unprotected, your answer won't be that different from the reason that protesting a funeral should likewise not be protected.
11.14.2007 8:13pm
Sk (mail):
John-
Of course.

Another thought experiment. Suppose the Phelps, instead of protesting at funerals, protested in law school classes? A constitutional right to disrupt class, or will all kinds of 'appropriate venue', or 'disruption in and of itself isn't a right,' or 'interference with the educational purpose of the classroom' arguments would bloom...

Sk

p.s. Note that the particular case discussed here, if accurately described (protest took place 1000 feet from the funeral, the family didn't even know it was going on until afterwards, etc) isn't a good case-because the appropriateness of a ban on speech depends upon the particulars, and the particulars of this case may very well exempt the Phelps from a ban on free speech.

But the discussion here isn't concerned with particulars (is 1000 feet to far, but 300 feet not? etc)-its concerned with the constitutional or theoretical appropriateness of a ban, in unusual circumstances, in general.

Sk
11.14.2007 8:21pm
Eli Rabett (www):
The issue (and I think RK had it pretty much right) is that there is a continuum of verbal abuse and to claim that there is no line is to invite violence and social unrest, that, of course leaves you with the problem of drawing the line, which is what they invented lawyers for.

Now, no one here, I think would object if on any ground individuals took certain actions (condemnation, boycott, etc) because they were offended. Actually many of the posts here are high court level harumphs about something like that or other. You might think it was silly, but hey, so what.

Otoh it gets tougher when there is governmental action. The government should be more neutral than individuals or even groups but to keep the peace the government can't be totally neutral, which kind of leaves you with Holmes' line on porn, and maybe where the current law on pornography is.
11.17.2007 12:52am