First amendment mavens, what do you think about this case?

[pegkerr]

The father of a fallen Marine has won a multi-million dollar settlement against Fred Phelps and the Westboro church.

Yes, we all agree that the Westboro church is perfectly odious. Is their hateful picketing at funerals free speech?

I have always had tremendous respect for Becky Lourey, the former Minnesota State Senator. She was the only person to cast a dissenting vote when the State of Minnesota voted on H.F. 2985, making it unlawful to voice protest at funerals:

"As Americans, we stand proudly for freedom of expression; the right is unconditional. The behavior of Fred Phelps’ followers is indefensible. We must not give their actions the power to take away our rights. Our country was built on a foundation of constitutional rights – and one of the most important is the freedom of speech. I will never compromise my convictions for political expediency. I will always stand for freedom.

"The hardest time to stand for freedom is in the face of overwhelming sentiment. This is when the defense of freedom is most important. I will never back down from a vote of conscience. We appear to be losing our ability to respect differences of opinion or have a civil dialogue. Legislating respectful behavior is not likely to help. In fact, more likely it will hurt."

What made Ms. Lourey's vote all the more remarkable was that she lost her own son, Matt Lourey, when his helicopter crashed in Iraq. See here.

Comments

[dd-b.livejournal.com]

The 1st amendment is about government restraint of speech. As such, something like H.F. 2985 might be held to violate it. But I don't think it actually immunizes people against the civil consequences of their speech; certainly the 1st Amendment is not a protection against libel or slander (verbal speech in a public enough context can be libel).

I suspect the case might have gone a different way if they hadn't chosen a death completely unrelated to their position to protest; some kind of protest relevant to a politician's actions in office might well be protected speech at that politician's funeral, even if in bad taste.

[haddayr.livejournal.com]

This is exactly what I was going to say; I was so proud of Becky Lourey who was the only one to do the right thing, and of course forbidding this by law is trampling first amendment rights.

However, as Mark says, a first amendment right to say what you want and not be jailed does not equal the right to not face the consequences of what you say and how you say it.

[folk.livejournal.com]

Mmm. I rather concur with this. Blah blah Voltaire blah blah respect your right to say what you want, but we have slander and libel laws for a reason. In the UK, our libel and slander laws are interestingly skewed further towards the right of the libelee or slanderee than the US' similar laws -- which is why nobody here was allowed to say that it was Viscount Linley who's been knobgobbling with his aides. Allegedly.*

*of course, appending an "allegedly" to the end of most any statement makes it unactionable. Allegedly.

[joel-rosenberg.livejournal.com]

Sure. But don't get too smug about your laws; it allowed the despicable David Irving to take Lipstadt to court because she told the truth about him, and if she hadn't had major support, the defense would have bankrupted her, even though she won.

[joel-rosenberg.livejournal.com]

But it isn't slander -- in any legal sense -- to say that "God hates fags." Assuming that you get can get the diety into court in the first place to query Him on the issue -- and it's only defamatory (I'm not sure who) if it's untrue; you've got to determine if it is true -- what're you going to ask Her to do? Put a hand/flipper/tentacle on a Bible and say, "I promise to tell the truth. So help Me, Me" and then have Her say, "Well, no, I like gays, small sticks of wood, and cigarettes"?

It's obviously an opinion (and, given that, as Sam Clemens argued, the best evidence is that God is a malign thug, perhaps more of a comment on the deity than on gay people), and opinions aren't defamatory.

The Phelpses have, so far, been very clever about voicing their loathsome opinions in public space; regulating hateful speech qua hateful speech in the public square is another step down a very slippery slope that we've already slid too far down as it is.

[dd-b.livejournal.com]

I agree that what they're doing doesn't look like slander or libel. However, it *does* rather look like intentional infliction of emotional distress. That's a civil issue, and that's how it was handled, and they lost. I think this is an example of the jury finding their actions hateful enough that it threw the book at them.

[joel-rosenberg.livejournal.com]

Sure. Which is why, I suspect, that it's going to be overturned on appeal. (The Phelpses have really, really talented lawyering available, in-house.)

[ceilidh]

I suspect the case might have gone a different way if they hadn't chosen a death completely unrelated to their position to protest; some kind of protest relevant to a politician's actions in office might well be protected speech at that politician's funeral, even if in bad taste.

Agreed.