[Reuters]Westboro Baptist Church in Court

[Ottomaton]

Kansas church liable in Marine funeral protest

BALTIMORE (Reuters) - A jury on Wednesday ordered an anti-gay Kansas church to pay $10.9 million in damages to relatives of a U.S. Marine who died in Iraq after church members cheered his death at his funeral.

Church members said Marine Lance Cpl. Matthew Snyder's death was God's punishment of America for tolerating homosexuality, and they attended his 2006 funeral in Maryland with signs saying "You're going to hell" and "God hates you."

The federal jury determined the Westboro Baptist Church, based in Topeka, and three of its principals invaded the privacy of the dead man's family and inflicted emotional distress.

Albert Snyder, the Marine's father, testified that his son was not gay, but the church targeted the military as a symbol of America's tolerance of gays. Matthew Snyder died in combat in Iraq in March 2006.

The jury awarded Snyder's family $2.9 million in compensatory damages plus $8 million in punitive damages in the first civil suit against the church, which has demonstrated at some 300 military funerals the past two years.

The lawsuit said church Web sites vilified U.S. soldiers, accusing them of being indoctrinated by "*** propaganda."

"I hope it's enough to deter them from doing this to other families. It was not about the money. It was about getting them to stop," said Snyder, of York, Pennsylvania.

The church, which is unaffiliated with any major denomination, is headed by Rev. Fred Phelps, who has led a campaign against homosexuality for years. Most of the estimated 70 members of the church belong to his extended family.

"It will take the 4th Circuit Court of Appeals a few minutes to reverse this silly thing," Phelps said.

His daughter and co-defendant, Shirley Phelps-Roper, vowed to continue protesting military funerals and called the court's decision a blow against free speech.

Outside court on Wednesday, Phelps and his children waved placards with slogans such as "Pray for more dead kids" and "God hates *** enablers," while passing drivers and pedestrians shouted abuse at them.

Defense attorney Jonathan Katz urged jurors not to award punitive damages because the $2.9 million in compensatory damages was already three times the defendants' net worth.

"It's enough already to bankrupt them and financially destroy them," Katz said.

Craig Trebilcock, an attorney for Snyder, said jurors should award sufficient punitive damages to deter Westboro from repeating its actions.




source (http://www.reuters.com/article/domesticNews/idUSN3134225120071031)

http://imagecache2.allposters.com/images/pic/ATA/24818BP~Nelson-Posters.jpg

[plutoblue11]

These kooks are still around.

[Space Ghost]

not that I agree with them, but so much for freedom of speech.

[giddyup]

I wonder if they root like that at the funerals of their own members? Aren't those deaths God's "punishment" also? What a bunch of kooks... :mad:

[hotballa]

not that I agree with them, but so much for freedom of speech.

I don't see how tormenting relatives of a loved one a his funeral equates to free speech. There has to be some sort of protection against that. Whats the funeral goers supposed to do?

[rocketsjudoka]

^ At the risk of defending the indefensible I agree with Space Ghost that there is a free speech issue here. While having Fred Phelps and his ilk protesting the funerals certainly causes pain and torment for the relatives of the dead soldiers but at the same time one could say that protestors protesting a company causes pain for the management and possible financial pain for the company and stockholders. There's obviously a difference in the degree of pain but then is free speech by the amount of pain it causes?

Protests have led to the public disgrace of those beign targetted along with their families, loss of jobs and in some rare cases people have killed themselves in the face of public protests. So public protest isn't without consequence. Should the courts decide how much pain and anguish a protest is allowed to cause?

[giddyup]

Should the courts decide how much pain and anguish a protest is allowed to cause?
Oh, hell yes.

There are privacy issues. Even decency issues here in my opinion.

You still can't yell FIRE in a crowded theater, can you?

Some of these free speech arguments are just adolescent.

Even the kid that got tasered shouting over John Kerry apologized!!!!! :D

[hotballa]

Should the courts decide how much pain and anguish a protest is allowed to cause?

yes, if the person being protested decides to haul them to court on a lawsuit, I really don't see anything wrong with it. if someone wants to stand outside my house and disrupt me from my everyday life and pursuit of happiness (or sadness), then I better have the right to haul his loud butt to court to get him off my back.

[rocketsjudoka]

Oh, hell yes.

There are privacy issues. Even decency issues here in my opinion.

You still can't yell FIRE in a crowded theater, can you?

Some of these free speech arguments are just adolescent.

Even the kid that got tasered shouting over John Kerry apologized!!!!! :D

Do you have a right to privacy while you are on public property? I don't know enough about this case but I haven't heard that Fred Phelps and his ilk were on private property. The yelling fire in a crowded theatre intention is to prevent physical harm but there is no evidence that the protestors were intending to cause physical harm. If you think the arguments over free speech is adolescent then you must not put a lot of stock in free speech. In your mind should free speech only protect what most people don't find offensive?

As for the kid who got tasered apologizing that has nothing to do with the question of where does the law weigh in.

[rhadamanthus]

"It will take the 4th Circuit Court of Appeals a few minutes to reverse this silly thing," Phelps said.


As much as the guy is a hate-mongering asshat, he is spot on here.

Freedom of speech. End of story.

[rocketsjudoka]

yes, if the person being protested decides to haul them to court on a lawsuit, I really don't see anything wrong with it. if someone wants to stand outside my house and disrupt me from my everyday life and pursuit of happiness (or sadness), then I better have the right to haul his loud butt to court to get him off my back.

What if a released sex-offender moves into your neighborhood and is seen spying on kids with binoculars but the police don't arrest him as he hasn't contacted kids yet. Do you think then that you should be able to protest on the street infront of his house to draw attention to what he is doing or do you think that not disrupting his everyday life is more important?

[halfbreed]

I love how people think "Free Speech" means saying whatever you want whenever you want in any situation. There are always limits.

Is this one of them? We'll find out. It just irks me when people shout "Free Speech" without really knowing what they're talking about.

[halfbreed]

What if a released sex-offender moves into your neighborhood and is seen spying on kids with binoculars but the police don't arrest him as he hasn't contacted kids yet. Do you think then that you should be able to protest on the street infront of his house to draw attention to what he is doing or do you think that not disrupting his everyday life is more important?

That's a weak argument. Tell me how what Phelps is doing is in any way contributing to any societal goal or helping to encourage discourse.

[Major]

As much as the guy is a hate-mongering asshat, he is spot on here.

Freedom of speech. End of story.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Where in this situation did Congress make a law limiting free speech?

[hotballa]

What if a released sex-offender moves into your neighborhood and is seen spying on kids with binoculars but the police don't arrest him as he hasn't contacted kids yet. Do you think then that you should be able to protest on the street infront of his house to draw attention to what he is doing or do you think that not disrupting his everyday life is more important?

If I go protest, he can try to sue me in court, I got no problem with that.

[rhadamanthus]

I love how people think "Free Speech" means saying whatever you want whenever you want in any situation. There are always limits.

Is this one of them? We'll find out. It just irks me when people shout "Free Speech" without really knowing what they're talking about.

Please inform me how this group of dumbasses are in any way different from KKK rallies or Nazi Party rallies (both protected, despite use of the "fighting words" or "clear and present danger" limitation on free speech argument).

Try reading Brandenburg vs Ohio for some interesting takes on Free Speech by the Supreme Court, or Defending my Enemy (a book, I forget the author) for even better discussion regarding what should or should not be protected.

[Major]

Please inform me how this group of dumbasses are in any way different from KKK rallies or Nazi Party rallies (both protected, despite use of the "fighting words" or "clear and present danger" limitation on free speech argument).

There are limits on KKK rallies too. If the KKK surrounded a black person's house (but stayed on the street - "public property") and protested all night long, burning crosses and what not, I guarantee you they would be stopped for disturbing the peace, and if the family in the house chose to see for emotional distress or whatever, I imagine they would win.

[rhadamanthus]

Where in this situation did Congress make a law limiting free speech?

Hmmmm. Now that's a good point...

I am unsure how freedom of speech works in a civil trial between two private parties.

I guess I can see the "invasion of privacy" argument.... but emotional distress? I don't see it. People say things every day in this country that I could feasibly argue result in my "emotional distress".

EDIT: just realized the above sounds really callous. Not intended that way.

There are limits on KKK rallies too. If the KKK surrounded a black person's house (but stayed on the street - "public property") and protested all night long, burning crosses and what not, I guarantee you they would be stopped for disturbing the peace, and if the family in the house chose to see for emotional distress or whatever, I imagine they would win.

Another good point. Where is that "fine line" drawn?

[hotballa]

Hmmmm. Now that's a good point...

I am unsure how freedom of speech works in a civil trial between two private parties.

I guess I can see the "invasion of privacy" argument.... but emotional distress? I don't see it. People say things every day in this country that I could feasibly argue result in my "emotional distress".

well considering that you can get sued for libel and slander, I'd say that freedom of speech in a civil trial doesn't play out too well.

[ima_drummer2k]

Couldn't they get these guys on anti-stalking laws? Seems like that's what they're doing.

[MadMax]

I guess I can see the "invasion of privacy" argument.... but emotional distress? I don't see it. People say things every day in this country that I could feasibly argue result in my "emotional distress".

not at your son's funeral.


there are all sorts of restrictions on free speech. all relative to place and time. but it's not an issue here. this is not the government restricting speech. this is not a constitutional issue in my view. it's a tort case....private plaintiffs v. private defendants.

i think this is great. we talk about hoping the justice system actually dispenses justice....i'd say this is an example of it happening.

[rhadamanthus]

well considering that you can get sued for libel and slander, I'd say that freedom of speech in a civil trial doesn't play out too well.

The criteria for libel and slander are quite well defined. I think what has me hung up at the moment is "emotional distress". That's quite subjective.

On the other hand, these douchebags aren't really deserving of my sympathy.

On the other other hand - I am not a fan of lawsuits that effectively squelch speach...

Hmmmmm.

[rhadamanthus]

not at your son's funeral.


there are all sorts of restrictions on free speech. all relative to place and time. but it's not an issue here. this is not the government restricting speech. this is not a constitutional issue in my view. it's a tort case....private plaintiffs v. private defendants.

i think this is great. we talk about hoping the justice system actually dispenses justice....i'd say this is an example of it happening.

Well said. I'd like to retract my former posts. :)

[hotballa]

The criteria for libel and slander are quite well defined. I think what has me hung up at the moment is "emotional distress". That's quite subjective.

On the other hand, these douchebags aren't really deserving of my sympathy.

On the other other hand - I am not a fan of lawsuits that effectively squelch speach...

Hmmmmm.

http://www.expertlaw.com/library/personal_injury/defamation.html

well according to this website, I'd say that the "church" was definteley guilty of some form of libel and slander. In fact the estate of the deceased could also probably sue the "church"

It is not unusual for attorneys to receive inquiries about defamation actions from people who are in conflicts with neighbors or other members of their communities, and have become the subjects of vicious lies. The area of law most implicated by that type of conduct is "defamation of character", a cause of action which is generally defined to include "libel" and slander".
What Are Defamation, Libel and Slander?

Generally speaking, defamation is the issuance of a false statement about another person, which causes that person to suffer harm. Slander involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation. Libel involves the making of defamatory statements in a printed or fixed medium, such as a magazine or newspaper.

Typically, the elements of a cause of action for defamation include:

1. A false and defamatory statement concerning another;
2. The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
4. Damage to the plaintiff.

In the context of defamation law, a statement is "published" when it is made to the third party. That term does not mean that the statement has to be in print.

Damages are typically to the reputation of the plaintiff, but depending upon the laws of the jurisdiction it may be enough to establish mental anguish.

Most jurisdictions also recognize "per se" defamation, where the allegations are presumed to cause damage to the plaintiff. Typically, the following may consititute defamation per se:

* Attacks on a person's professional character or standing;
* Allegations that an unmarried person is unchaste;
* Allegations that a person is infected with a sexually transmitted disease;
* Allegations that the person has committed a crime of moral turpitude;

[halfbreed]

Please inform me how this group of dumbasses are in any way different from KKK rallies or Nazi Party rallies (both protected, despite use of the "fighting words" or "clear and present danger" limitation on free speech argument).

Try reading Brandenburg vs Ohio for some interesting takes on Free Speech by the Supreme Court, or Defending my Enemy (a book, I forget the author) for even better discussion regarding what should or should not be protected.

While I appreciate the condescension, I still maintain my earlier position. If it helps you, I'm currently taking a Constitutional Law & Free Speech class so I'm getting my fill of cases and arguments about Free Speech.

As was stated earlier, neither Congress nor the states have made any law prohibiting this.

I mean OJ was found not guilty of murder and was still held civilly liable. Civil and criminal cases are different beasts.

EDIT: This reply was written before I read that you retracted your previous posts. I assume someone much more eloquent than I was the reason. :)

[leroy]

I'm not so sure the judge and jury didn't already know this would be turned over by the Appeals Court. I think it was awarded as as an announcement that good people will not tolerate their hatred. It will be turned over. I have almost no doubt about that. At the least, the church has to spend that much more money on fighting it. Anything to slow them down.

[MadMax]

I'm not so sure the judge and jury didn't already know this would be turned over by the Appeals Court. I think it was awarded as as an announcement that good people will not tolerate their hatred. It will be turned over. I have almost no doubt about that. At the least, the church has to spend that much more money on fighting it. Anything to slow them down.

What will be overturned?

[Space Ghost]

I love how people think "Free Speech" means saying whatever you want whenever you want in any situation. There are always limits.

Is this one of them? We'll find out. It just irks me when people shout "Free Speech" without really knowing what they're talking about.

There is a fine line between protesting and disrupting someones life. There is also a fine line of punishment between removing protesters disrupting events and fining them 10 million.

There are two glaring issues at hand: 1) If you REALLY think this was about "mental anguish" (to whom???), then you need a dose of reality. This is about a group of people voicing their opinion outside of society's acceptance. Do you really think a group of war protestors would be fined 10 million? 2) Law is interpreted by the results of each legal cases. Just like frivious law suits are out of hand, you will start seeing cases of people suing everyone for "mental anguish" just because they don't agree with them. Bush would be the richest man in the world by all the mental anguish he could receive from this site.

[Space Ghost]

I'm not so sure the judge and jury didn't already know this would be turned over by the Appeals Court. I think it was awarded as as an announcement that good people will not tolerate their hatred. It will be turned over. I have almost no doubt about that. At the least, the church has to spend that much more money on fighting it. Anything to slow them down.

This is exactly the point. You don't use the justice system to suppress someones freedom of speech just because you disagree with it. It was used for over a 100 years after the civil war to keep blacks down. It was wrong then to do it, and it is wrong today.

[pirc1]

This is exactly the point. You don't use the justice system to suppress someones freedom of speech just because you disagree with it. It was used for over a 100 years after the civil war to keep blacks down. It was wrong then to do it, and it is wrong today.

It maybe not hold up. But that church sure is messed up bunch of morons.

[Ottomaton]

There are two glaring issues at hand: 1) If you REALLY think this was about "mental anguish" (to whom???), then you need a dose of reality. This is about a group of people voicing their opinion outside of society's acceptance. Do you really think a group of war protestors would be fined 10 million?

The first think I thought of was obscenity laws and the sliding scale of acceptability relative to community mores.

Is the legal definition of the word 'obscene' specifically more limited than the common definition? In the law does it only deal with pornography? Because to me what is at issue here seems to me to be very similar to the issues that people have had with juggling the free speech and community interests with regards to pornography.

The two competing interests seem to me to be the free speech interests of Phelps, and the desire of the public not to be confronted with things that are openly offensive or repulsive to the community as a whole. Obviously defenders would say that there is some kind of legitimate discourse here, but is there really, or is Phelps simply hoping to shock people?

If Phelps was out on a public street protesting, I think the law does have some interest in limiting or at least controling things that are openly offensive and which incite people.

[JuanValdez]

The first think I thought of was obscenity laws and the sliding scale of acceptability relative to community mores.

I think that is a very interesting comparison, because it is mostly the fact that their behavior is repulsive to witness that makes their speech problematic. However, I do think their speech probably qualifies as highly meaningful whereas pornography is mostly meaningless. The group is expressing their religious beliefs, engaging in a political discourse about how the government should proceed with policy, and engaging in a social discourse as well. So, I think we have a strong interest in allowing them to say what they want to say, though it is too bad they have to be simultaneously wrong, annoying and offensive.

[MadMax]

There is a fine line between protesting and disrupting someones life. There is also a fine line of punishment between removing protesters disrupting events and fining them 10 million.

There are two glaring issues at hand: 1) If you REALLY think this was about "mental anguish" (to whom???), then you need a dose of reality. This is about a group of people voicing their opinion outside of society's acceptance. Do you really think a group of war protestors would be fined 10 million? 2) Law is interpreted by the results of each legal cases. Just like frivious law suits are out of hand, you will start seeing cases of people suing everyone for "mental anguish" just because they don't agree with them. Bush would be the richest man in the world by all the mental anguish he could receive from this site.

This isn't a fine, Space Ghost. It's a civil judgment. You're viewing this like they did something illegal and the government is punishing them. That's not the way the civil courts system works.

People get hit for mental anguish from words. That's not unprecedented. What mental anguish means in a courtroom and what it means in an internet forum are two entirely different things.

[MadMax]

I think that is a very interesting comparison, because it is mostly the fact that their behavior is repulsive to witness that makes their speech problematic. However, I do think their speech probably qualifies as highly meaningful whereas pornography is mostly meaningless. The group is expressing their religious beliefs, engaging in a political discourse about how the government should proceed with policy, and engaging in a social discourse as well. So, I think we have a strong interest in allowing them to say what they want to say, though it is too bad they have to be simultaneously wrong, annoying and offensive.

And again, the government isn't telling them they can't do say those things. In no way is the government outlawing their speech.

This is a civil case. Not a criminal one.

[Ottomaton]

And again, the government isn't telling them they can't do say those things. In no way is the government outlawing their speech.

This is a civil case. Not a criminal one.

As a stupid nonlawyer, when someone like the KKK gets a permit to march, can a passerby sue them for mental anguish? Or I guess in broader terms, is there any immunity from civil suit on protected speech?

Because it then seems to me like someone could conceivably use the courts as a bully pulpit to 'shout down' someone with whom they disagree, for instance ADL suing every permited Aryan Nation march for mental anguish. Or am I missing something?

[MadMax]

As a stupid nonlawyer, when someone like the KKK gets a permit to march, can a passerby sue them for mental anguish? Or I guess in broader terms, is there any immunity from civil suit on protected speech?

Because it then seems to me like someone could conceivably use the courts as a bully pulpit to 'shout down' someone with whom they disagree, for instance ADL suing every permited Aryan Nation march for mental anguish. Or am I missing something?

You can sue anyone for virtually anything. The question is whether or not it sticks.

I think showing up at a funeral and slandering the deceased in front of the family is actionable. That's not the kind of case I deal with...but I don't think that's a far reach.

This suit isn't about restricting free speech.

What they said isn't nearly as important as where and when they said it in this instance. I think the average juror would be so pissed at this...to imagine dealing with that at your own son's funeral. Yikes. Mourning your son's passing while these idiots are screaming him down?? Not even having the moment of peace in burying your son??

[rhadamanthus]

As a stupid nonlawyer, when someone like the KKK gets a permit to march, can a passerby sue them for mental anguish? Or I guess in broader terms, is there any immunity from civil suit on protected speech?

Because it then seems to me like someone could conceivably use the courts as a bully pulpit to 'shout down' someone with whom they disagree, for instance ADL suing every permited Aryan Nation march for mental anguish. Or am I missing something?

This was my concern as well. Where is that fine line between protection and "excessive mental anguish"?

[MadMax]

This was my concern as well. Where is that fine line between protection and "excessive mental anguish"?

Your speech is protected only from public actors. In other words...your free speech rights aren't owed to you by me or any other private actor.

So GENERALLY SPEAKING you're not subject to jail time for your words...but that doesn't mean you don't deal with the consequences of them amongst other private actors. You can't rely on the First Amendment to protect you in those instances...because the private person never owed you First Amendment rights to begin with.

[rhadamanthus]

Your speech is protected only from public actors. In other words...your free speech rights aren't owed to you by me or any other private actor.

So GENERALLY SPEAKING you're not subject to jail time for your words...but that doesn't mean you don't deal with the consequences of them amongst other private actors. You can't rely on the First Amendment to protect you in those instances...because the private person never owed you First Amendment rights to begin with.

As I initially (and confusedly) pointed out - I can understand this for invasion of privacy, libel, slander etc. But mental anguish? You can be sued for offending someone? I don't like the sound of that.

[giddyup]

Do you have a right to privacy while you are on public property? I don't know enough about this case but I haven't heard that Fred Phelps and his ilk were on private property. The yelling fire in a crowded theatre intention is to prevent physical harm but there is no evidence that the protestors were intending to cause physical harm. If you think the arguments over free speech is adolescent then you must not put a lot of stock in free speech. In your mind should free speech only protect what most people don't find offensive?

As for the kid who got tasered apologizing that has nothing to do with the question of where does the law weigh in.
How about emotional harm? Or do they choose to ignore that there are grieving people in the vicinity?

It is a complex issue but if that were my son or daughter, I'd be tempted to take an elephant gun to Fred Phelps. End of free speech right there!

It is adolescent to say that you can say whatever you want wherever you want. If it is limited to public property then it's not really free speech...

I hope they counter-sue for distress or something.

[rocketsjudoka]

That's a weak argument. Tell me how what Phelps is doing is in any way contributing to any societal goal or helping to encourage discourse.

Is free speech only limited though to what contributes to a societal goal or encourages discourse? If that is the standard then if I find someone talking very loudly on the bus about how he thinks Charlize Theron is really sexy can I sue them as they are annoying me and their speech is innane and contributes to no societal goal or encourages discourse?

That seems like a very shaky standard.

At the sametime though, again I apologize for defending the indefensible but I think is an important point. Preaching one's religious conviction, although one far out of the mainstream, could very well be considered encouraging discourse. If Fred Phelps truly believes that God is punishing the US for tolerance of homosexuality isn't that a matter of public discourse? For instance Pat Robertson and Jerry Falwell have made similar points yet they are still allowed to broadcast, or were in Falwell's case.

[rocketsjudoka]

http://www.expertlaw.com/library/personal_injury/defamation.html

well according to this website, I'd say that the "church" was definteley guilty of some form of libel and slander. In fact the estate of the deceased could also probably sue the "church"

From your definition though of libel and slander I don't see how these apply to this case. From reading the article it doesn't seem like Fred Phelps was slandering the Marine himself as its not clear that he was claiming the Marine was gay but only protesting as the Marine death is a sign of God's punishment. That specifically doesn't seem to impugn the Marine but they are arguing that as an indictment of US society in general.

[rocketsjudoka]

There is a fine line between protesting and disrupting someones life. There is also a fine line of punishment between removing protesters disrupting events and fining them 10 million.

There are two glaring issues at hand: 1) If you REALLY think this was about "mental anguish" (to whom???), then you need a dose of reality. This is about a group of people voicing their opinion outside of society's acceptance. Do you really think a group of war protestors would be fined 10 million? 2) Law is interpreted by the results of each legal cases. Just like frivious law suits are out of hand, you will start seeing cases of people suing everyone for "mental anguish" just because they don't agree with them. Bush would be the richest man in the world by all the mental anguish he could receive from this site.

I completely agree and this seems to be using the power of the courts in order to force a societal norm. For those who are saying that this is a proper limitation of free speech how far should that go.

Given that anti-abortion protesters are required to stay a certain distance from abortion clinics but they are still allowed to protest. Should abortion clinics have standing to sue though anytime there are protests since even with the distance though the protests can still be heard and that understandibly is very threatening to those who work in the clinic and women coming to the clinic. Under the standard of invasion of privacy and anguish then abortion protesters should be just as liable as Fred Phelps.

[rocketsjudoka]

This isn't a fine, Space Ghost. It's a civil judgment. You're viewing this like they did something illegal and the government is punishing them. That's not the way the civil courts system works.

People get hit for mental anguish from words. That's not unprecedented. What mental anguish means in a courtroom and what it means in an internet forum are two entirely different things.

I understand that this is a civil versus a criminal ruling but there still needs to be standing to sue. I'm not a lawyer but my understanding of what gives standing is harm caused to one's civil liberties. The question here is if there is a harm caused to the family's privacy right to mourn their son in peace versuse a free speech right for Fred Phelps to express his opinion. It seems to me that the family certainly has a right to privacy and if this had happened on private property then clearly Fred Phelps is liable. On public property though shouldn't Phelps have just as much right to his own civil liberties?

Whose rights take precedence? This seems to me that Fred Phelps position is so far out of the mainstream that he becomes liable and the basis of the ruling has more to do with an extreme POV rather than a violation of civil liberties.

[rocketsjudoka]

I apologize for the multiple posts but I think this is a very important issue since something like this really does hit upon what are the limits of free speech and my time is very limited so I'm not able to follow the discussion as it develops.

How about emotional harm? Or do they choose to ignore that there are grieving people in the vicinity?

Except that a lot of things cause emotional harm. There was that guy in DC who sued for $65 million for a pair of lost pants on the basis of emotional harm. As far as grieving people in the vinicity what if it was a funeral for someone who died in a construction accident? Should construction be stopped within hearing of a funeral procession since that would cause emotional harm to the mourners?

I don't want to lesson the anguish of this situation but I think when emotional harm is your primary argument that is a very slippery and completely subjective slope. What situations like this though do is put it into the court's hand to decide who is emotionally harmed and how much is that harm worth. I understand that is done all the time but is that a good thing?

It is a complex issue but if that were my son or daughter, I'd be tempted to take an elephant gun to Fred Phelps. End of free speech right there!

And you would be charged with murder, or at least manslaughter. I don't deny that words hurt and have consequences but my question is should we resort to the courts for being offended? Should Sharpton sue Imus because his words caused anguish to blacks and women? Should I sue Steve Kerr becuase he called Yao a Chinaman which hurts me as ethnically Chinese and a Rockets fan? The answer to me seems to be to counter with more free speech and regarding Fred Phelps there already is a group countering them. Bikers volunteer to shield the funeral processions from Phelps and his ilk and drown them out by revving thier bikes.

It is adolescent to say that you can say whatever you want wherever you want. If it is limited to public property then it's not really free speech...

I hope they counter-sue for distress or something.

At the same time though one could say it is adolescent to run to the courts for a solution and adolescent to allow yourself to get wounded so deeply by words.

While you might think this is a joke issue this is anything but as the question of what and how much free speech you can express is integral to what we believe as a free society. Again I don't want to make light of the anguish the family feels and I will emphasize that I find Phelps and his followers despicable. That is a given but as a society should we use the power the of the courts to silence an obnoxious but otherwise peaceful and law abiding group? That's a very tough question..

[Ottomaton]

You can sue anyone for virtually anything. The question is whether or not it sticks.


Thanks. I guess this is what leaves me feeling uncomfortable. I certainly think Phelps got what was coming to him, but it seems like there isn’t a very clear line about ‘what sticks’ and what doesn’t – in other words like there is a whole group of iffy cases that if you took them to juries in civil court 100 times, 50% of the time it you would have a jury that was sympathetic enough to make it stick and 50% not.

This might just qualify as a lack of understanding on my part, but based on the description it does seem like there is not a clear line between ‘worthy of damages’ and ‘not worthy of damages’, and that winning is kind of a sympathy game.

At a very primal emotional level, I feel that justice should be more clearly defined than appears is the case.

Sorry if I'm reading too much into your comments.

[hatemavs4life]

This whole episode makes me want to vomit. First of all, as a US Marine veteran and second because Kansas is my birthplace.

What this cult/church is doing may be protected speech but, I find it unconscionable to justify "pissing" on the graves of brave souls just to get a message out that is clearly directed at the wrong subject. This father did not deserve such a fate. Clearly the courts saw this also to be the case,

Protest in a town square, in front of a government building, in a place where normal Americans could legitimately associate and identify the breadth and the depth of your message. Not at a cemetery where bereaved are trying to bring closure with a respectful, solemn service of a dearly departed heroe. Unbelievable!

The ruling was good and just. Civil charges have less limitations in burden of proof. Whereas, in criminal proceedings the State or the Plaintiff would have to prove beyond "reasonable doubt."

Incidentally heard this "quack" interviewed on CNN and he is flat out a raving lunatic and has clearly lost his mind.

I think their movement on this subject is dead in the water. For Woodsboro Baptist, they're DONE and with the American public's approval.

[giddyup]

I apologize for the multiple posts but I think this is a very important issue since something like this really does hit upon what are the limits of free speech and my time is very limited so I'm not able to follow the discussion as it develops.

Except that a lot of things cause emotional harm. There was that guy in DC who sued for $65 million for a pair of lost pants on the basis of emotional harm. As far as grieving people in the vinicity what if it was a funeral for someone who died in a construction accident? Should construction be stopped within hearing of a funeral procession since that would cause emotional harm to the mourners?

I don't want to lesson the anguish of this situation but I think when emotional harm is your primary argument that is a very slippery and completely subjective slope. What situations like this though do is put it into the court's hand to decide who is emotionally harmed and how much is that harm worth. I understand that is done all the time but is that a good thing?

And you would be charged with murder, or at least manslaughter. I don't deny that words hurt and have consequences but my question is should we resort to the courts for being offended? Should Sharpton sue Imus because his words caused anguish to blacks and women? Should I sue Steve Kerr becuase he called Yao a Chinaman which hurts me as ethnically Chinese and a Rockets fan? The answer to me seems to be to counter with more free speech and regarding Fred Phelps there already is a group countering them. Bikers volunteer to shield the funeral processions from Phelps and his ilk and drown them out by revving thier bikes.

At the same time though one could say it is adolescent to run to the courts for a solution and adolescent to allow yourself to get wounded so deeply by words.

While you might think this is a joke issue this is anything but as the question of what and how much free speech you can express is integral to what we believe as a free society. Again I don't want to make light of the anguish the family feels and I will emphasize that I find Phelps and his followers despicable. That is a given but as a society should we use the power the of the courts to silence an obnoxious but otherwise peaceful and law abiding group? That's a very tough question..

My God man, someone's child has been struck down in war and you give a rat's ass about someone's right to disrespect that farewell. There's a zillion and one places they can protest. Go somewhere else. It's really simple. I'm not sure what the legal standpoint is ... but let's fid it!!

One important component of a free society is its civility. Let's show some to a grieving family.

I understand all the complexity and the nuance but let's get out of the ether on this one and realize that someone is putting a dead loved one in the ground and these monkeys should have no right to stain that last farewell with their political protest.

Call me The Angry Pragmatist... :D

[MadMax]

As I initially (and confusedly) pointed out - I can understand this for invasion of privacy, libel, slander etc. But mental anguish? You can be sued for offending someone? I don't like the sound of that.

Mental anguish is not just for offending someone. It's a means of recovery in all sorts of civil cases. It can be so in a consumer case, for instance. It's usually difficult to prove...especially in Texas.

But I'm not sure why anyone would be surprised that a father suffered mental anguish when his son's funeral was overrun with protesters. That's about as low as it gets.

[MadMax]

Is free speech only limited though to what contributes to a societal goal or encourages discourse? If that is the standard then if I find someone talking very loudly on the bus about how he thinks Charlize Theron is really sexy can I sue them as they are annoying me and their speech is innane and contributes to no societal goal or encourages discourse?

That seems like a very shaky standard.

At the sametime though, again I apologize for defending the indefensible but I think is an important point. Preaching one's religious conviction, although one far out of the mainstream, could very well be considered encouraging discourse. If Fred Phelps truly believes that God is punishing the US for tolerance of homosexuality isn't that a matter of public discourse? For instance Pat Robertson and Jerry Falwell have made similar points yet they are still allowed to broadcast, or were in Falwell's case.

They are not being punished. It's not a criminal case. They're not being imprisoned or fined for the content of their speech. THIS IS NOT A FREE SPEECH ISSUE IN ANY WAY, SHAPE OR FORM. The father of the son owes the church absolutely zilch in the way of First Amendment rights. The Bill of Rights is afforded to us by the federal government....not by individual citizens.

They've had a judgment entered against them for a dollar value to redress a wrong.

It's a civil case.

[rhadamanthus]

But I'm not sure why anyone would be surprised that a father suffered mental anguish when his son's funeral was overrun with protesters. That's about as low as it gets.

Max, the above is obvious. I am not debating the hideousness of the actions perpetrated by Phelps and his ilk.

But, what amount of mental anguish constitutes winning a lawsuit? At what level of offense does my right to free speech end?

Do you see what I am getting at here? If there is not libel or slander, this ruling seems to imply that you can be punished for being offensive. Could gay groups now sue Pat Robertson for making claims that 9/11 was the fault of homosexuality? Can I sue TraderJorge for accusing me of being a traitor?

[MadMax]

Max, the above is obvious. I am not debating the hideousness of the actions perpetrated by Phelps and his ilk.

But, what amount of mental anguish constitutes winning a lawsuit? At what level of offense does my right to free speech end?

Do you see what I am getting at here? If there is not libel or slander, this ruling seems to imply that you can be punished for being offensive. Could gay groups now sue Pat Robertson for making claims that 9/11 was the fault of homosexuality? Can I sue TraderJorge for accusing me of being a traitor?

Again...there is no free speech analysis in this. If your words cause someone harm, you're not protected because of the First Amendment. The First Amendment is an obligation of the government to private citizens...not from private citizen to private citizen. The 2nd Amendment reads that you have a right to bear arms...but if "bearing arms" means you hurt someone, then a civil lawsuit can be kicked off so the person you harmed can be compensated.

There is a ginormous distinction between you merely being offended...and you not being able to bury your son in peace. That's what this case is about. These cases are always fact-specific...always case-by-case.

Punitive damages are calculated on a number of factors...including the wealth of the defendant and the egregiousness of the act. My understanding is that this jackass who runs this "church" is a lawyer who has done quite well for himself...and this is a jury sending him a message.

[rhadamanthus]

Again...there is no free speech analysis in this. If your words cause someone harm, you're not protected because of the First Amendment. The First Amendment is an obligation of the government to private citizens...not from private citizen to private citizen. The 2nd Amendment reads that you have a right to bear arms...but if "bearing arms" means you hurt someone, then a civil lawsuit can be kicked off so the person you harmed can be compensated.

There is a ginormous distinction between you merely being offended...and you not being able to bury your son in peace. That's what this case is about. These cases are always fact-specific...always case-by-case.

Punitive damages are calculated on a number of factors...including the wealth of the defendant and the egregiousness of the act. My understanding is that this jackass who runs this "church" is a lawyer who has done quite well for himself...and this is a jury sending him a message.

Ok. Now I think I get it. Once again, thanks for posting these lawyerly explanations.

[justtxyank]

he was on tv last night and said that he didn't even know what was going on until he was at home and saw it on tv.

[JuanValdez]

And again, the government isn't telling them they can't do say those things. In no way is the government outlawing their speech.

This is a civil case. Not a criminal one.

I know that and I'm hearing you. I suppose I'm just having a different conversation -- can and should we make a law to curb Phelps' behavior. The lawsuits may be sufficient (I don't expect it to be overturned, myself), but I've heard of suggestions of laws to keep people from protesting at cemetaries or similar things. Pornographic speech is regulated, not merely controlled by civil suits; maybe there are other forms that should also be regulated. That's the conversation I'm having.

[HayesStreet]

People seem to think the law is static and not interpretive at all. It isn't. Juries draw the lines on what is and is not acceptable all the time. As Max seems to have finally gotten across this isn't a free speech issue. This group can go tomorrow and protest again at some other funeral. There is no ban of this action by the government. But he'll have to think twice about doing it again in light of this judgement. I don't think it is scary at all that a jury can find this way and I'm curious why the Appeals Court would consider overturning it. Juries are supposed to interpret these situations and make judgements. That is good, not bad.

[rocketsjudoka]

They are not being punished. It's not a criminal case. They're not being imprisoned or fined for the content of their speech. THIS IS NOT A FREE SPEECH ISSUE IN ANY WAY, SHAPE OR FORM. The father of the son owes the church absolutely zilch in the way of First Amendment rights. The Bill of Rights is afforded to us by the federal government....not by individual citizens.

They've had a judgment entered against them for a dollar value to redress a wrong.

It's a civil case.

Though are the courts part of the government? Who enforces the judgement? Its a false dichotomy that this is a civil case so the government isn't involved. The government is the arbiter and enforcer of this case and the ruling was based upon the civil liberties that this government is based on.

It absolutely a free speech issue as you can't sue for just anything. You have to have standing and that is based upon legally defined civil liberties. If free speech wasn't an issue this wouldn't be a matter for the courts.

[rocketsjudoka]

My God man, someone's child has been struck down in war and you give a rat's ass about someone's right to disrespect that farewell. There's a zillion and one places they can protest. Go somewhere else. It's really simple. I'm not sure what the legal standpoint is ... but let's fid it!!

In case you haven't noticed I do give much more than a rat's ass.

While you might think this is a joke issue this is anything but as the question of what and how much free speech you can express is integral to what we believe as a free society. Again I don't want to make light of the anguish the family feels and I will emphasize that I find Phelps and his followers despicable. That is a given but as a society should we use the power the of the courts to silence an obnoxious but otherwise peaceful and law abiding group? That's a very tough question..

One important component of a free society is its civility. Let's show some to a grieving family.

I agree with you but should civility be mandated by law? Civility and social mores are subjective, change with times and not universal. One could say that it was uncivil of the civil rights activists to shame and humiliate white Southernors. One could say it is very uncivil of war protestors to call politicians murders or for anti-abortion protestors to call doctors murderers also. The whole idea behind protest is to rouse passions and offense is a very strong passion.

I understand all the complexity and the nuance but let's get out of the ether on this one and realize that someone is putting a dead loved one in the ground and these monkeys should have no right to stain that last farewell with their political protest.

Call me The Angry Pragmatist... :D

Let me ask you this. Should a woman who is making a painful and traumatic decision to have an abortion be subject to hearing anti-abortion protestors in the vicinity of the clinic?

[rocketsjudoka]

People seem to think the law is static and not interpretive at all. It isn't. Juries draw the lines on what is and is not acceptable all the time. As Max seems to have finally gotten across this isn't a free speech issue. This group can go tomorrow and protest again at some other funeral. There is no ban of this action by the government. But he'll have to think twice about doing it again in light of this judgement. I don't think it is scary at all that a jury can find this way and I'm curious why the Appeals Court would consider overturning it. Juries are supposed to interpret these situations and make judgements. That is good, not bad.

There is a reason why though there is such a thing as "punitive damages" while no new law is being established the intent of this ruling is clearly meant as punishment. As I stated early I believe this is a false dichotomy to claim that this is not action by the government. The government is the one that has decided standing and enforces the decision.

[HayesStreet]

There is a reason why though there is such a thing as "punitive damages" while no new law is being established the intent of this ruling is clearly meant as punishment. As I stated early I believe this is a false dichotomy to claim that this is not action by the government. The government is the one that has decided standing and enforces the decision.

The people in the form of the jury decided the case, not the government. The people decided the damages, not the government. There is no 'false dichotomy anyway since this isn't some nebulous principle of free speech but an enunciated amendment to the Constitution. That amendment clearly only talks about Congress inhibiting speech, not action by citizens as a result of speech.

[giddyup]

In case you haven't noticed I do give much more than a rat's ass.
Then why "defend the indefensible?"

Let me ask you this. Should a woman who is making a painful and traumatic decision to have an abortion be subject to hearing anti-abortion protestors in the vicinity of the clinic?
Shrewd question, but I would say yes in that instance because the effort is a last ditch one to save a child's life and to protest the process to end lives going on then and in that place.

[rocketsjudoka]

Then why "defend the indefensible?"

Call it playing devils advocate or a deep interest in understanding where the limits are of free speech. While I find Fred Phelps speech offensive in the utmost I still have a hard time seeing a multimillion dollar judgement against a peaceful group on public property as serving societal interests.


Shrewd question, but I would say yes in that instance because the effort is a last ditch one to save a child's life and to protest the process to end lives going on then and in that place.

Fred Phelps though would say that he is making an effort to save the US from God's wrath and further lives. As you know the abortion debate centers around whether someone considers an abortion to be ending a life so the argument that an abortion protestor is trying to save a life is a subjective matter of belief also, while something certainly a lot more widely held than Fred Phelp's beliefs. My own opinion, as someone not holding either belief, is that peaceful protest on public property should be tolerated at the risks of causing emotional pain.

[rocketsjudoka]

The people in the form of the jury decided the case, not the government. The people decided the damages, not the government. There is no 'false dichotomy anyway since this isn't some nebulous principle of free speech but an enunciated amendment to the Constitution. That amendment clearly only talks about Congress inhibiting speech, not action by citizens as a result of speech.

Who enforces the judgement?

[Ottomaton]

Reading up on this, the true reason appears to have been remarked by Max, but as a non-lawyer it slipped by me.

One word: tort

A tort (http://en.wikipedia.org/wiki/Tort) is an action under common law (http://en.wikipedia.org/wiki/Common_law), not statutory law, and it predates the constitution. The constitution says:


Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;



It is not 'law made by Congress', but rather law made by precedent so is not relevant to the first amendment, I guess? Common law exists outside the bill of rights except where mentioned (7th Amendment). At least as far as I can tell that is the reason.

http://en.wikipedia.org/wiki/Intentional_infliction_of_emotional_distress

As a non-lawyer I don't think many people automatically understand what 'tort' implies, perhaps? At least I don't.

[MadMax]

Though are the courts part of the government? Who enforces the judgement? Its a false dichotomy that this is a civil case so the government isn't involved. The government is the arbiter and enforcer of this case and the ruling was based upon the civil liberties that this government is based on.

It absolutely a free speech issue as you can't sue for just anything. You have to have standing and that is based upon legally defined civil liberties. If free speech wasn't an issue this wouldn't be a matter for the courts.

I'm not trying to be a jackass. But this couldn't be more wrong.

Again...free speech isn't guaranteed to you by private citizens. It's guaranteed to you CONDITIONALLY by the government through the First Amendment.

The last sentence in your post is absolutely inexplicable to me. It wouldn't be an issue for the courts??? Does every civil case then revolve around free speech issues in your mind?

This is a civil case. You can pretend there's not a distinction. But there is.

[MadMax]

There is a reason why though there is such a thing as "punitive damages" while no new law is being established the intent of this ruling is clearly meant as punishment. As I stated early I believe this is a false dichotomy to claim that this is not action by the government. The government is the one that has decided standing and enforces the decision.

but the government didn't bring the charges.

so when you get in a car wreck...and you get hurt...and you sue for personal injury...is that actually the government suing or is it you??

civil matter.

[MadMax]

Who enforces the judgement?

the person who wins it. he seeks to collect his money. there are all sorts of ways that can happen.

the police do not come to the judgment debtors' home and force him to pay. the private citizen might use public means to collect on his judgment...but the judgment is his.

in fact...the plaintiff ( the father of the dead son) could sell his judgment to another private person or entity to collect.

[rocketsjudoka]

I'm not trying to be a jackass. But this couldn't be more wrong.

Again...free speech isn't guaranteed to you by private citizens. It's guaranteed to you CONDITIONALLY by the government through the First Amendment.

The last sentence in your post is absolutely inexplicable to me. It wouldn't be an issue for the courts??? Does every civil case then revolve around free speech issues in your mind?

This is a civil case. You can pretend there's not a distinction. But there is.


What are civil judgements based on? Are they based on legally defined civil liberties or is it lawless and majority rules?

[geeimsobored]

What are civil judgements based on? Are they based on legally defined civil liberties or is it lawless and majority rules?

That's not how civil cases work though. People sue all the time under nuisance tort claims or defamation claims. You could argue that the first amendment trumps these but that's not how it works. Nowhere in the constitution is there ever a restriction on speech, but we see libel and defamation cases all the time. That's an example of civil lawsuits that operate under a different set of tort laws. We hear that phrase that your rights end when you infringe on anothers and that free speech isn't entirely absolute but that's not actually a statute anywhere in the constitution. The only restrictions on speech really come in the form of civil lawsuits like this one.

Another set of tort laws deals with nuisances on property (even public property in some cases). I mean just read a lot of tort decisions and you'll come out thinking how arbitrary the decision is. The basis of civil compensation can seriously be almost anything because tort laws are so broad. That's why you see so many calls by people in Congress to restrict tort laws and civil lawsuits because people can sue for anything and win at that.

[giddyup]

Call it playing devils advocate or a deep interest in understanding where the limits are of free speech. While I find Fred Phelps speech offensive in the utmost I still have a hard time seeing a multimillion dollar judgement against a peaceful group on public property as serving societal interests.

Fred Phelps though would say that he is making an effort to save the US from God's wrath and further lives. As you know the abortion debate centers around whether someone considers an abortion to be ending a life so the argument that an abortion protestor is trying to save a life is a subjective matter of belief also, while something certainly a lot more widely held than Fred Phelp's beliefs. My own opinion, as someone not holding either belief, is that peaceful protest on public property should be tolerated at the risks of causing emotional pain.
I think you are being generous in characterizing this protest as "peaceful." Granted there is no physical violence-- although their ugly message might provoke some.

There are many places for Phelps to protest the war. That time and place are chosen for sensationalism. The privacy of the family deserves protection.

[MadMax]

What are civil judgements based on? Are they based on legally defined civil liberties or is it lawless and majority rules?


They're not based on the First Amendment.

As much as you might see this is a free speech issue, I can assure you that free speech will not be an issue considered on review by appellate courts. Because the guy who lost his son is not a public actor/the government.

It's a personal injury case, essentially. You did x and it caused me injury...so I'm seeking compensation through the courts.

[MadMax]

That's not how civil cases work though. People sue all the time under nuisance tort claims or defamation claims. You could argue that the first amendment trumps these but that's not how it works. Nowhere in the constitution is there ever a restriction on speech, but we see libel and defamation cases all the time. That's an example of civil lawsuits that operate under a different set of tort laws. We hear that phrase that your rights end when you infringe on anothers and that free speech isn't entirely absolute but that's not actually a statute anywhere in the constitution. The only restrictions on speech really come in the form of civil lawsuits like this one.
.

This is closer but still not entirely right.

First...let's start with a typical free speech case. A group wants to protest X and seeks space to do it. The city denies them the space. They petition that they want to peacefully protest. The city still says no. There are reasons why the city can deny them this...even though they're a public actor. THIS SORT OF SITUATION RAISES FIRST AMENDMENT ISSUES FOR A COURT TO CONSIDER. One of the very first considerations to determine whether it's a Constitutional issue is to decide if there is a public actor that is limiting the speech. So there's tons of case law refining the First Amendment...limiting it in many ways and expanding it in others...defining different sorts of public actors/extensions of the government. There are all sorts of time/place restrictions on free speech. You can't protest wheneever, whereever you wish. For example....just because you have a right to free speech, doesn't mean you have a right to publicly protest something you despise at 2:30 in the morning in a residential neighborhood...or even in a public park adjacent to a residential neighborhood.

Next...civil cases. The key first analysis the court considers...whether a public actor is involved. In this case...it's an individual trying to bury his son. No private individual owes any other private individual rights to free speech. A great example of that is this website. Clutch owns it. He ain't a public actor. So you can ramble on and on about free speech and how you're entitled to say what you want...but he can still shut your ass out FOR WHATEVER REASON HE WANTS...INCLUDING NOT LIKING OR AGREEING WITH THE CONTENT OF YOUR SPEECH. But in this case...the man isn't suing saying this guy can't protest. He's suing saying that at this specific time these words caused him injury. And a jury agreed. Then they considered punitive damages....and taken into account in determining punitive damages is the egregiouness of the underlying act and the wealth of the defendant. They heard all sorts of evidence on that and decided to punish the church for the injury they caused...for the egregiousness of protesting a man's funeral.

Let me also say this...there's lots of case law of heightened damages for those who jack with funerals...even if it's by accident. If you run a funeral services company and you make an innocent mistake, you're going to get nailed in a courtroom, most likely. So with that background...and the values that support them...I'm not the least bit surprised this "church" got tagged.

No one is saying they CAN'T make asses of themselves and say what they want. They have for years. But when, in the exercise of your rights otherwise, you cause harm to someone else...you're going to have to pay for it.

[pppbigppp]

Not sure if this is already posted, but I find the following info on Fred Phelps is quite an eye-opener.

http://ourworld.compuserve.com/homepages/michael_haggerty/expose3.htm

A preview


Sometimes Pastor Phelps preferred to grab one child by their little hands and haul them into the air. Then he would repeatedly smash his knee into their groin and stomach while walking across the room and laughing. The boys remember this happening to Nate when he was only seven, and to Margie and Kathy even after they were sexually developed teenagers. Nate recalls being taken into the church once where his father, a former golden gloves boxer, bent him backwards over a pew, body-punched him, spit in his face, and told him he hated him. Mark's very first memory in this life is an emotional scar: their mom had gone to the hospital to give birth to Jonathon. Mark remembers being very upset, since now they would be alone in the house with their father, his threatening presence left unmitigated by her maternal concern. Though only five, already Mark could use the phone and, one day while his father was out he dialed the number she'd left.

So yeah, the sadistic nature seems to come straight from Saw.

[MadMax]

One more thing:

I wasn't at trial. So it's possible the court made some sort of mistake that will call for this case to be overturned. Maybe they allowed in some evidence they shouldn't have.

But more likely, if anything is going to be overturned in this case it will be the amount of punitive damages. Those could absolutely be reduced. Particularly since the article states that the compensatory damages were 3x the defendant's worth.

But honestly, I hope not. I hope this is the last we hear of Fred Phelps. And I hope he learns something that creates peace from him instead of the hate and venom he spews.

[giddyup]

Remember the days of MLK's civil disobedience?

How far we have fallen...

Now we have dipwads like Phelps and we are supposed to clear a path for them? :confused:

[Ottomaton]

Remember the days of MLK's civil disobedience?

How far we have fallen...

Now we have dipwads like Phelps and we are supposed to clear a path for them? :confused:

Back in the day there were dipwads too. Frequent and public KKK rallies and marches supported by the police, governors leading segregationist marches and the like. At least these days we don't have public lynchings every weekend in all the small southern towns (http://withoutsanctuary.org/pics_01.html).

[pouhe]

Remember the days of MLK's civil disobedience?

How far we have fallen...

Now we have dipwads like Phelps and we are supposed to clear a path for them? :confused:

Not to defend Phelps' specific actions morally or even legally; but that specific contrast is what makes free speech so sacrosanct. You can never predict in advance which ideas, ideologies or individuals will be perceived as threatening or unpopular: forty or fifty years ago, for many more people than today, it was King.

[giddyup]

Back in the day there were dipwads too. Frequent and public KKK rallies and marches supported by the police, governors leading segregationist marches and the like. At least these days we don't have public lynchings every weekend in all the small southern towns (http://withoutsanctuary.org/pics_01.html).
I think we are on the same page here... in a way.

Back then the dipwads were institutionally sanctioned. Brave men like MLK stood up to it/them and risked civil disobedience to inspire change.

Now the dipwads are loose cannons taking WRONG advantage of our civil protections.

Seems like we could find a way to be smarter; we don't allow hate speech do we?

[giddyup]

Not to defend Phelps' specific actions morally or even legally; but that specific contrast is what makes free speech so sacrosanct. You can never predict in advance which ideas, ideologies or individuals will be perceived as threatening or unpopular: forty or fifty years ago, for many more people than today, it was King.
Not so sure that I agree.

Many people recognized the truth that MLK spoke; very, very few are so inspired by Phelps blathering...

At some point we have to stand for something besides "anything goes."

[geeimsobored]

Not so sure that I agree.

Many people recognized the truth that MLK spoke; very, very few are so inspired by Phelps blathering...

At some point we have to stand for something besides "anything goes."

That's pretty much what this country was founded on. The idea of the founders was to promote a marketplace of ideas through free speech. Bad ideas will be defeated by good ideas. MLK's ideas were considered wrong by the vast majority buy over time, protest and speech created change. The same works the other way. Bad ideas are squelched by other speech.

The idea of silencing sets a bad precedent. Laws that were built to stop the KKK (for example the COINTELPRO program) were also used to track MLK and monitor him by the FBI. All speech suppression is a double edged sword.

That being said, I agree with Max on the fact that the civil suit is legitimate.

[giddyup]

That's pretty much what this country was founded on. The idea of the founders was to promote a marketplace of ideas through free speech. Bad ideas will be defeated by good ideas. MLK's ideas were considered wrong by the vast majority buy over time, protest and speech created change. The same works the other way. Bad ideas are squelched by other speech.

The idea of silencing sets a bad precedent. Laws that were built to stop the KKK (for example the COINTELPRO program) were also used to track MLK and monitor him by the FBI. All speech suppression is a double edged sword.

That being said, I agree with Max on the fact that the civil suit is legitimate.
So we'll send a throng of CFers to Karl Malone's mother's funeral to protest flopping in basketball and that is supposed to be okay...? :D

[hatemavs4life]

So we'll send a throng of CFers to Karl Malone's mother's funeral to protest flopping in basketball and that is supposed to be okay...? :D
WHAT??? What in the world does this have to do with "pissing" on the graves of fallen heroes? :confused:

[rocketsjudoka]

MadMax;

As I'm not a lawyer I will have to concede that your legal knowledge is much greater than mine but I still disagree with you in regard to that this isn't about speech and also philosophically in regard to whether using the courts in this matter is a good thing.

This is closer but still not entirely right.

First...let's start with a typical free speech case. A group wants to protest X and seeks space to do it. The city denies them the space. They petition that they want to peacefully protest. The city still says no. There are reasons why the city can deny them this...even though they're a public actor. THIS SORT OF SITUATION RAISES FIRST AMENDMENT ISSUES FOR A COURT TO CONSIDER. One of the very first considerations to determine whether it's a Constitutional issue is to decide if there is a public actor that is limiting the speech. So there's tons of case law refining the First Amendment...limiting it in many ways and expanding it in others...defining different sorts of public actors/extensions of the government. There are all sorts of time/place restrictions on free speech. You can't protest wheneever, whereever you wish. For example....just because you have a right to free speech, doesn't mean you have a right to publicly protest something you despise at 2:30 in the morning in a residential neighborhood...or even in a public park adjacent to a residential neighborhood.

I will concede that yes there are limits that have been placed regarding the time and place of protest and your example of the protests at 2:30 AM is a good example. That said my understanding of that situation is one that can has been legally upheld by statute. I'm not aware of Phelps is violating any regulation regarding this protests in particular and the fact that this was a civil suit shows that no laws were being broken which you discuss below.

Next...civil cases. The key first analysis the court considers...whether a public actor is involved. In this case...it's an individual trying to bury his son. No private individual owes any other private individual rights to free speech. A great example of that is this website. Clutch owns it. He ain't a public actor. So you can ramble on and on about free speech and how you're entitled to say what you want...but he can still shut your ass out FOR WHATEVER REASON HE WANTS...INCLUDING NOT LIKING OR AGREEING WITH THE CONTENT OF YOUR SPEECH. But in this case...the man isn't suing saying this guy can't protest. He's suing saying that at this specific time these words caused him injury. And a jury agreed. Then they considered punitive damages....and taken into account in determining punitive damages is the egregiouness of the underlying act and the wealth of the defendant. They heard all sorts of evidence on that and decided to punish the church for the injury they caused...for the egregiousness of protesting a man's funeral.

That Clutch owns this site shows that this is Clutch property and as such we are here on the good graces of Clutch. I think that is a different matter than if we were in a public forum. For instance Clutch couldn't ban me from a sidewalk for saying "Rafer Alston is the greatest Rocket ever." (although he should as that is a highly offensive statement. ;) )

You say that "the man isn't suing saying this guy can't protest. He's suing saying that at this specific time these words caused him injury." that is clearly regarding an issue of speech as there is no other action that he is suing for. While the man certainly may feel that that speech is causing him harm but given a pluralistic society with free speech anyone could argue that someone else's speech is causing them harm. Rafer Alston could argue that Clutch's criticism of him is causing harm. In the end this is a matter of using the courts to specifically punish speech and not any other action and in this case it seems to be a matter of punishing unpopular speech.

Let me also say this...there's lots of case law of heightened damages for those who jack with funerals...even if it's by accident. If you run a funeral services company and you make an innocent mistake, you're going to get nailed in a courtroom, most likely. So with that background...and the values that support them...I'm not the least bit surprised this "church" got tagged.

My understanding would be that a funeral services company is engaged in a business transaction with a client and that them getting nailed in a courtroom has to do with failure to provide services that is far different than someone who has no business or any relationship with the family of the person being interred protesting on a public street. While that shows that as a society we take funerals seriously that strikes me as not very material to the Fred Phelps.

No one is saying they CAN'T make asses of themselves and say what they want. They have for years. But when, in the exercise of your rights otherwise, you cause harm to someone else...you're going to have to pay for it.

But is there a counter harm when you are restricted in the free exercise of your rights?

The problem I have with this whole situation and why I say its a false dichotomy to say "this is civil so your rights aren't being restricted" is that your rights are. As you have said yourself that almost anyone can sue anyone else under this system. Sharpton could sue Imus, Karl Malone could sue Clutchfans, Dick Cheney could sue Rimrocker, the government could sue the NY Times editorial page and so on if they felt that they were being harmed by their speech. All that matters is whether a judge or jury bought that argument. That strikes me as being subjective in the utmosts and leading to a situation of defacto suppression of speech if it is considered unpopular or offensive. Now my understanding of why we even value free speech in the first place is not to protect popular non-offensive speech but to protect that what most of society might find very unpopular and offensive.

Consider that the speech of civil rights protestors was very offensive to the segregationists South and as it directly targeted their way of life did cause emotional harm and was meant to cause emotional harm as to shame them into change. If the standard is emotional harm then Southern Segregationists should've been well on standing to sue civil rights protestors and collect damages.

I will agree with you that no laws are being passed in this case restricting speech but I don't see how this can see as anything but seeking to punish and chill free speech through the courts.

[giddyup]

WHAT??? What in the world does this have to do with "pissing" on the graves of fallen heroes? :confused:
It's not about fallen heroes, it' about free speech ... remember? :D

[rocketsjudoka]

Not so sure that I agree.

Many people recognized the truth that MLK spoke; very, very few are so inspired by Phelps blathering...

At some point we have to stand for something besides "anything goes."

So all that matters then is how popular the speech is? People in the South didn't find what MLK was saying to be very popular and where publicly humiliated by MLK and other civil rights activists speeches. If your argument is how many people recognize the truth of what you say then there a many issues that should be silenced, pro-life, intelligent design, and these days supporting the war in Iraq since these are minority positions.

Why not allow people the right to say what they want without the fear of laws or lawsuits and let the marketplace of ideas sort things out?

[MadMax]

MadMax;

As I'm not a lawyer I will have to concede that your legal knowledge is much greater than mine but I still disagree with you in regard to that this isn't about speech and also philosophically in regard to whether using the courts in this matter is a good thing.



I will concede that yes there are limits that have been placed regarding the time and place of protest and your example of the protests at 2:30 AM is a good example. That said my understanding of that situation is one that can has been legally upheld by statute. I'm not aware of Phelps is violating any regulation regarding this protests in particular and the fact that this was a civil suit shows that no laws were being broken which you discuss below.



That Clutch owns this site shows that this is Clutch property and as such we are here on the good graces of Clutch. I think that is a different matter than if we were in a public forum. For instance Clutch couldn't ban me from a sidewalk for saying "Rafer Alston is the greatest Rocket ever." (although he should as that is a highly offensive statement. ;) )

You say that "the man isn't suing saying this guy can't protest. He's suing saying that at this specific time these words caused him injury." that is clearly regarding an issue of speech as there is no other action that he is suing for. While the man certainly may feel that that speech is causing him harm but given a pluralistic society with free speech anyone could argue that someone else's speech is causing them harm. Rafer Alston could argue that Clutch's criticism of him is causing harm. In the end this is a matter of using the courts to specifically punish speech and not any other action and in this case it seems to be a matter of punishing unpopular speech.



My understanding would be that a funeral services company is engaged in a business transaction with a client and that them getting nailed in a courtroom has to do with failure to provide services that is far different than someone who has no business or any relationship with the family of the person being interred protesting on a public street. While that shows that as a society we take funerals seriously that strikes me as not very material to the Fred Phelps.



But is there a counter harm when you are restricted in the free exercise of your rights?

The problem I have with this whole situation and why I say its a false dichotomy to say "this is civil so your rights aren't being restricted" is that your rights are. As you have said yourself that almost anyone can sue anyone else under this system. Sharpton could sue Imus, Karl Malone could sue Clutchfans, Dick Cheney could sue Rimrocker, the government could sue the NY Times editorial page and so on if they felt that they were being harmed by their speech. All that matters is whether a judge or jury bought that argument. That strikes me as being subjective in the utmosts and leading to a situation of defacto suppression of speech if it is considered unpopular or offensive. Now my understanding of why we even value free speech in the first place is not to protect popular non-offensive speech but to protect that what most of society might find very unpopular and offensive.

Consider that the speech of civil rights protestors was very offensive to the segregationists South and as it directly targeted their way of life did cause emotional harm and was meant to cause emotional harm as to shame them into change. If the standard is emotional harm then Southern Segregationists should've been well on standing to sue civil rights protestors and collect damages.

I will agree with you that no laws are being passed in this case restricting speech but I don't see how this can see as anything but seeking to punish and chill free speech through the courts.

1. You can disagree with me all you want. I'm still telling you that the appellate courts will not be doing any First Amendment scrutiny with this case. They just won't. It's really not arguable.

2. Clutch doesn't have the authority to ban you from public spots. I'm not suggesting he does. The government can given certain time/place restrictions. But again, that's inconsequential because no one is banning the content or context of the speech here.

3. Speech can cause harm. Ever hear of slander? libel? There's no First Amendment scrutiny provided by courts in those matters. They're matters between private citizens. That's the key.

4. Again...private citizens owe no responsibility to other private citizens under the First Amendment. Don Imus can be sued by Sharpton in a civil suit...that garners no free speech scrutiny. When the government impedes your right to speak...that garners free speech scrutiny. It's that simple. That's how these issues are resolved. FIRST AMENDMENT RIGHTS ARE BETWEEN THE GOVERNMENT AND CITIZENS...NOT BETWEEN CITIZENS.

5. All these arguments about restraining speech...they're not relevant to THIS CASE. As much as you want them to be...they're simply not. I promise you, the First Amendment will not be a consideration for these judges in this case. I pinkie swear it. Scout's honor.

[MadMax]

Why not allow people the right to say what they want without the fear of laws or lawsuits and let the marketplace of ideas sort things out?


So in addition to throwing out cases like this one, we throw out hundereds of years or slander/libel caselaw as well, huh?

How about we just leave it like it is? That way we don't have to amend the Constitution and get approval from every citizen in the country that we're all affording free speech to one another.

[Ottomaton]

oops, beat to it

[giddyup]

Why not allow people the right to say what they want without the fear of laws or lawsuits and let the marketplace of ideas sort things out?
Because my dead son's funeral should not be considered a marketplace?

I realize the imperfection of what I'm asserting. That's why I saw that we just have to make a stand somewhere (i.e. civility and decency).

I'm more disturbed by some nutjob ruining a family's last goodbye than I am about requiring that same nutjob to move his protest somewhere else or STFU...

[rhester]

1. You can disagree with me all you want. I'm still telling you that the appellate courts will not be doing any First Amendment scrutiny with this case. They just won't. It's really not arguable.

2. Clutch doesn't have the authority to ban you from public spots. I'm not suggesting he does. The government can given certain time/place restrictions. But again, that's inconsequential because no one is banning the content or context of the speech here.

3. Speech can cause harm. Ever hear of slander? libel? There's no First Amendment scrutiny provided by courts in those matters. They're matters between private citizens. That's the key.

4. Again...private citizens owe no responsibility to other private citizens under the First Amendment. Don Imus can be sued by Sharpton in a civil suit...that garners no free speech scrutiny. When the government impedes your right to speak...that garners free speech scrutiny. It's that simple. That's how these issues are resolved. FIRST AMENDMENT RIGHTS ARE BETWEEN THE GOVERNMENT AND CITIZENS...NOT BETWEEN CITIZENS.

5. All these arguments about restraining speech...they're not relevant to THIS CASE. As much as you want them to be...they're simply not. I promise you, the First Amendment will not be a consideration for these judges in this case. I pinkie swear it. Scout's honor.

I am not familiar with this case at all. It sounds really sick by scanning this thread. Going to the debate here about free speech and the lawsuit-

1. I certainly understand the lawsuit being a civil suit that harm was caused by someones speech. (if it was just speech)
2. I understand verbal workplace harrassment, civil slander and libel suits.

My question is are you aware of any other cases where someone's speech was held up in court as being harmful, causing damage, where it wasn't a slander or libel case?

I could not think of one. But I thought you might have precedent.

I agree this is not a free speech issue with regards to the constitution since one private individual is suing another.

My question is are there other court cases that are precedents or is this setting one?

If this is about words spoken, I cannot think of one case where words spoken were so harmful that it went to court and resulted in a judgment. (unless it was a slander, libel or harrassment case)

I'm trying to come up with cases I can think of where people were hurt deeply by someones words and they won a court damage over it.

[rhester]

BTW- I don't see this at all from the little I read that this is a 1st admendment issue at all.

I think I would like to know if the lawsuit was won simply on the basis of something that was spoken, speech.

[Ottomaton]

If this is about words spoken, I cannot think of one case where words spoken were so harmful that it went to court and resulted in a judgment. (unless it was a slander, libel or harrassment case)


GTE Southwest, Inc. v. Bruce (http://64.233.167.104/search?q=cache:B2kSQ6FbwgkJ:caselaw.findlaw.com/scripts/getcase.pl%3Fcourt%3Dtx%26vol%3D/sc/020136%26invol%3D1+GTE+Southwest,+Inc.+v.+Bruce&hl=en&ct=clnk&cd=3&gl=us)

[MadMax]

BTW- I don't see this at all from the little I read that this is a 1st admendment issue at all.

I think I would like to know if the lawsuit was won simply on the basis of something that was spoken, speech.

Think of harassment cases. Think of harassment cases in the workplace.

Now multiply that times about 1000 when you're trying to bury your son in peace. That it would cause harm is beyond question, in my opinion.

[rhester]

Think of harassment cases. Think of harassment cases in the workplace.

Now multiply that times about 1000 when you're trying to bury your son in peace. That it would cause harm is beyond question, in my opinion.

I deal with harrassment cases. So was this a harrassment case? Would it be harrassment of a protected class?

I didn't read the whole story because it upset me that a pastor or christian would be involved with this junk.

I am sickened by hate and hate speech.

[MadMax]

GTE Southwest, Inc. v. Bruce (http://64.233.167.104/search?q=cache:B2kSQ6FbwgkJ:caselaw.findlaw.com/scripts/getcase.pl%3Fcourt%3Dtx%26vol%3D/sc/020136%26invol%3D1+GTE+Southwest,+Inc.+v.+Bruce&hl=en&ct=clnk&cd=3&gl=us)


Very familiar with that case.

That case...and the fact that it's even a Texas case, where mental anguish damages are awarded pursuant to a finding of intentional infliction of emotional distress are very difficult to get...was in my mind when I first read this particular case.

the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."

I would argue that screaming down the dead and not allowing his family a peaceful funeral absolutely fits the bill.

[MadMax]

I deal with harrassment cases. So was this a harrassment case? Would it be harrassment of a protected class?

I didn't read the whole story because it upset me that a pastor or christian would be involved with this junk.

I am sickened by hate and hate speech.

he's neither a pastor nor a christian...even by the most liberal of definitions.

honestly, i haven't seen the pleadings...and i don't know which state law's standards would be applied in this proceeding. but assuming it's as liberal as we are here in Texas :) .... then the GTE case that was cited above is an analagous.

[rhester]

GTE Southwest, Inc. v. Bruce (http://64.233.167.104/search?q=cache:B2kSQ6FbwgkJ:caselaw.findlaw.com/scripts/getcase.pl%3Fcourt%3Dtx%26vol%3D/sc/020136%26invol%3D1+GTE+Southwest,+Inc.+v.+Bruce&hl=en&ct=clnk&cd=3&gl=us)

thanks that helped me.

quoting-
"To recover damages for intentional infliction of emotional distress, a plaintiff must establish that: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998). Extreme and outrageous conduct is conduct "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). It is for the court to determine, in the first instance, whether a defendant's conduct was extreme and outrageous. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 616 (Tex. 1999). But when reasonable minds may differ, it is for the jury, subject to the court's control, to determine whether, in the particular case, the conduct was sufficiently extreme and outrageous to result in liability. Id."

Her judgment was overturned in appeal, but it seemed to be tried as a harrassment case.

thanks again.

[rhester]

he's neither a pastor nor a christian...even by the most liberal of definitions.

honestly, i haven't seen the pleadings...and i don't know which state law's standards would be applied in this proceeding. but assuming it's as liberal as we are here in Texas :) .... then the GTE case that was cited above is an analagous.

Thanks MadMax, I just couldn't read much of it, I can't stand for the name Christian to be associated with this kind of stuff. It really hurts.

[MadMax]

Her judgment was overturned in appeal, but it seemed to be tried as a harrassment case.



actually the case he was pointing you to wasn't the one he linked you to...it was cited within that case, though, with a nice synopsis...towards the bottom.

[thumbs]

This church shames the Baptist Church in general, but it does seem that free speech is only "free speech" if you agree with the message.

[MadMax]

This church shames the Baptist Church in general, but it does seem that free speech is only "free speech" if you agree with the message.

No..free speech is only an issue if it's the government taking it from you.

[thumbs]

No..free speech is only an issue if it's the government taking it from you.
Concur. Charging millions for "free speech" tends to do that.

[Ottomaton]

Her judgment was overturned in appeal, but it seemed to be tried as a harrassment case.


In that case, which as Max points out was not the case in question, there was, as you point out an element of harassment. But beneath it there is one interesting quote that seems, by implication, to apply to this case:


Tiller's most egregious action was his threat to terminate the contracts if the construction site was closed for the entire day of Bill McLure's funeral.



Despite all the months and months of intimidation and harassment, the most egregious action was preventing his employees from attending the funeral, which seems like small beans compared to what Phelps did.

One of MadMax's points earlier on about the location of this particular transgression - a funeral - being specifically and specially protected or regarded seems really to have struck a chord with me. As a pastor I’m sure you have more intimate and personal first hand knowledge with that insane level of grief at that exact moment that I do.

I guess the final measure of what Phelps did essentially is measured in the volume of grief inflicted. The fact that it was done as the man was burying his son indicates a degree of mental anguish that I honestly have difficulty imagining. The openness to emotional injury at that point seems to me to be near absolute. I have a hard time believing that there is any confluence of time and situation where one can inflict more emotional damage.

From what I can determine the 'intentionally inflicted emotional damage' tort was created to reflect an emotionally measured and containable equivalency to the tort of assault, where damages are defined by what can be physically measured. In my opinion that describes what Phelps did better than anything else I can think of - emotional assault.

[rhester]

In that case, which as Max points out was not the case in question, there was, as you point out an element of harassment. But beneath it there is one interesting quote that seems, by implication, to apply to this case:


Tiller's most egregious action was his threat to terminate the contracts if the construction site was closed for the entire day of Bill McLure's funeral.



Despite all the months and months of intimidation and harassment, the most egregious action was preventing his employees from attending the funeral, which seems like small beans compared to what Phelps did.

One of MadMax's points earlier on about the location of this particular transgression - a funeral - being specifically and specially protected or regarded seems really to have struck a chord with me. As a pastor I’m sure you have more intimate and personal first hand knowledge with that insane level of grief at that exact moment that I do.

I guess the final measure of what Phelps did essentially is measured in the volume of grief inflicted. The fact that it was done as the man was burying his son indicates a degree of mental anguish that I honestly have difficulty imagining. The openness to emotional injury at that point seems to me to be near absolute. I have a hard time believing that there is any confluence of time and situation where one can inflict more emotional damage.

From what I can determine the 'intentionally inflicted emotional damage' tort was created to reflect an emotionally measured and containable equivalency to the tort of assault, where damages are defined by what can be physically measured. In my opinion that describes what Phelps did better than anything else I can think of - emotional assault.

Yes as a pastor I am very protective of the family and their wishes. I did a funeral recently where a little boy died. The father and mother were divorced and had problems. At the viewing they tried to start a fist fight and a brawl. I (against better judgement- stepping into a fist fight and grabbing the assailants) along with the funeral director stopped it and calmed down the warring factions. I then met with the funeral director, we came real close to shutting it all down. But with respect to the entire extended families and the little boy I met with the two of them and told them one more outburst and we shut down.

I requested police presence during the funeral the next day. There were no further incidents but we had about 6 officers on site.

As a Pastor I try to bring grace, dignity and respect obviously to every funeral. I still don't know the details of this case but the little I know is just terrible.

[MadMax]

Yes as a pastor I am very protective of the family and their wishes. I did a funeral recently where a little boy died. The father and mother were divorced and had problems. At the viewing they tried to start a fist fight and a brawl. I (against better judgement- stepping into a fist fight and grabbing the assailants) along with the funeral director stopped it and calmed down the warring factions. I then met with the funeral director, we came real close to shutting it all down. But with respect to the entire extended families and the little boy I met with the two of them and told them one more outburst and we shut down.

I requested police presence during the funeral the next day. There were no further incidents but we had about 6 officers on site.

As a Pastor I try to bring grace, dignity and respect obviously to every funeral. I still don't know the details of this case but the little I know is just terrible.

Ugh....that story makes me sick to my stomach, literally. But I'm so glad you were there to bring peace.

[rocketsjudoka]

1. You can disagree with me all you want. I'm still telling you that the appellate courts will not be doing any First Amendment scrutiny with this case. They just won't. It's really not arguable.

2. Clutch doesn't have the authority to ban you from public spots. I'm not suggesting he does. The government can given certain time/place restrictions. But again, that's inconsequential because no one is banning the content or context of the speech here.

3. Speech can cause harm. Ever hear of slander? libel? There's no First Amendment scrutiny provided by courts in those matters. They're matters between private citizens. That's the key.

4. Again...private citizens owe no responsibility to other private citizens under the First Amendment. Don Imus can be sued by Sharpton in a civil suit...that garners no free speech scrutiny. When the government impedes your right to speak...that garners free speech scrutiny. It's that simple. That's how these issues are resolved. FIRST AMENDMENT RIGHTS ARE BETWEEN THE GOVERNMENT AND CITIZENS...NOT BETWEEN CITIZENS.

5. All these arguments about restraining speech...they're not relevant to THIS CASE. As much as you want them to be...they're simply not. I promise you, the First Amendment will not be a consideration for these judges in this case. I pinkie swear it. Scout's honor.

Again I will have to concede to your greater knowledge of the law in this matter but I will still stand by my dissagreement that this isn't about speech. Phelps only action was speech and speech delivered on public property. Nothing I have heard about the case indicates that he and his followers were interfering in the funeral in any other way or somehow impeding the progress of the funeral. Also as Hotballa had supplied the definition of slander and libel it doesn't appear that Phelps was slandering or libelling the Marine in particular but just using his death as an example.

What this comes down to me, and nothing posted seems to counter that, is that this was extremely unpopular speech and that Phelps is being punished, since punitive damages were awarded, for extremely unpopular speech. I don't think that is a good thing for our society.

[rocketsjudoka]

In that case, which as Max points out was not the case in question, there was, as you point out an element of harassment. But beneath it there is one interesting quote that seems, by implication, to apply to this case:


Tiller's most egregious action was his threat to terminate the contracts if the construction site was closed for the entire day of Bill McLure's funeral.



Despite all the months and months of intimidation and harassment, the most egregious action was preventing his employees from attending the funeral, which seems like small beans compared to what Phelps did.

I haven't had a chance to read the case cited but I don't agree that threatening to fire people for attending a funeral is less egregious than what Phelps did. Frankly I don't find it comparable as Phelps had no power over the participants in the funeral other than through speech. While that speech is despicable I don't see how that is comparable to causing them to lose their livelihood.

One of MadMax's points earlier on about the location of this particular transgression - a funeral - being specifically and specially protected or regarded seems really to have struck a chord with me. As a pastor I’m sure you have more intimate and personal first hand knowledge with that insane level of grief at that exact moment that I do.

I guess the final measure of what Phelps did essentially is measured in the volume of grief inflicted. The fact that it was done as the man was burying his son indicates a degree of mental anguish that I honestly have difficulty imagining. The openness to emotional injury at that point seems to me to be near absolute. I have a hard time believing that there is any confluence of time and situation where one can inflict more emotional damage.

From what I can determine the 'intentionally inflicted emotional damage' tort was created to reflect an emotionally measured and containable equivalency to the tort of assault, where damages are defined by what can be physically measured. In my opinion that describes what Phelps did better than anything else I can think of - emotional assault.

I don't deny that a vast amount of emotional harm was inflicted but this standard is used a lot and seems to be highly subjective. As I noted earlier anti-abortion protestors have been cited as causing much emotional harm and part of the point of civil rights protests were to shame and humiliate segregationists. There is no doubt that speech is powerful but I believe that is the risk that we face if we value the idea of free speech.

Mad Max may be very well correct regarding civil law and that anyone can sue anyone else if they feel they are harmed by speech. I personally find that very disturbing.

[rocketsjudoka]

So in addition to throwing out cases like this one, we throw out hundereds of years or slander/libel caselaw as well, huh?

How about we just leave it like it is? That way we don't have to amend the Constitution and get approval from every citizen in the country that we're all affording free speech to one another.

If what you say is correct then we don't need to amend the Constitution as it isn't a Constitutional issue. What we should do is consider more carefully the standards for bringing torts regarding speech.

As for getting approval from every other citizen that we are affording free speech my argument is that we don't need approval and that free speech, even offensive free speech, is a given. Your argument is that we do as we could be sued for our speech if someone found it harmful.

[MadMax]

What this comes down to me, and nothing posted seems to counter that, is that this was extremely unpopular speech and that Phelps is being punished, since punitive damages were awarded, for extremely unpopular speech. I don't think that is a good thing for our society.

It's just so happens that speech that harms people is usually unpopular. This is extremely harmful given the context. And if you look at case law, even here in Texas, regarding harassment with words, I think you'll see this isn't exactly stretching the law to get there.

I'll disagree with you. I think it's just fine. If a jury decides that someone suffered real harm at the hands of another, I think they ought to be able to determine that from the evidence presented (which you and I weren't in the courtroom to hear) and decide damages from there.

This isn't nearly as easy as "sue anyone for anything and you'll get something"...these are very difficult cases to prove...(see the standards here in TX for example in the GTE case)....and they are rarely successful. But a jury decided THIS particular instance was particularly egregious. And I agree 100%. I want peace at my son's funeral if, God forbid, I actually have to be alive to attend it. If someone disturbs that intentionally, I can assure you that I will at least consider suing them...particularly if they are as nasty as Phelps is. Because he's systematic, and I wouldn't want anyone else to have to go through that.

I see this case as an example of justice actually coming about through our judicial system...a judicial system I'm pretty critical of otherwise.

[MadMax]

Your argument is that we do as we could be sued for our speech if someone found it harmful.

and there's about 200 years of american case law and roughly 500 years of english case law to back that up.

libel/slander is a whole area of law that completely flies in the face of your notion that anyone should be able to say whatever they want no matter the consequences. not even the First Amendment as interpreted by the Supreme Court affords us what you're arguing for.

[MadMax]

btw rocketsjudoka...you're good people...i hope i didn't come off like an ass to you in this thread. i do that sometimes. sorry.

[rhester]

Nothing I have heard about the case indicates that he and his followers were interfering in the funeral in any other way or somehow impeding the progress of the funeral. Also as Hotballa had supplied the definition of slander and libel it doesn't appear that Phelps was slandering or libelling the Marine in particular but just using his death as an example.

.

Now I'm confused. I was assuming that a church or some group protested at a funeral and distrupted the funeral by the things they said or spoke out.

Did this Phelps disrupt the funeral or interfer in the funeral.

I should read up on this situation but I really don't care to read about a group showing up and disrupting a funeral.

What happened? :eek:

EDIT
I was assuming a family asked a church to use the church for a funeral, the church later found out the person deceased was gay and the church members showed up and disrupted or protested the funeral- is that it?

[Ottomaton]

EDIT
I was assuming a family asked a church to use the church for a funeral, the church later found out the person deceased was gay and the church members showed up and disrupted or protested the funeral- is that it?

These people are from Westboro 'Baptist Church' which is really more of a closed enclave. The location of the funeral and the deceased person have nothing to do with Westboro. I wouldn't really think of them as a church, outside of the fact that they choose to call themselves one.

The Church members drive around the country and go to many soldier's funerals and stand outside and scream "Praise God for Toe Tags", "God Hates ****", and carry signs that say things like, "Thank God for explosively formed projectiles." They’ve even shown up in the past with pictures of the dead soldier on a placard with the slogan, “[Son's name] is in hell” underneath. The son wasn't gay and nobody involved had anything to do whatsoever with these protesters. They just show up at every soldier's funeral that they can to scream disruptive, hateful, and painful things at the family, presumably for publicity.

Their assertion is that God hates homosexuals so much that because some people tolerate them, God has damned all of America. That damnation is in the form of the war in Iraq and these soldiers were struck down by God's divine wrath for the sins of our country.

[rocketsjudoka]

and there's about 200 years of american case law and roughly 500 years of english case law to back that up.

libel/slander is a whole area of law that completely flies in the face of your notion that anyone should be able to say whatever they want no matter the consequences. not even the First Amendment as interpreted by the Supreme Court affords us what you're arguing for.

Again I don't deny that libel and slander, along with hate speech, flies in the face of the First Ammendment. My limited understanding though regarding libel and slander is that it is very narrowly determined. I still don't know if those apply to this case and if I read you right you're not saying they do just that they are an example of legal impediments to free speech.

[rocketsjudoka]

btw rocketsjudoka...you're good people...i hope i didn't come off like an ass to you in this thread. i do that sometimes. sorry.

Thanks and I appreciate that and I never felt you were being an ass or attacking me personally. I've been worried as coming off as an ass for defending people that I truly find despicable but this is an issue that I am very concerned about.

[rocketsjudoka]

Now I'm confused. I was assuming that a church or some group protested at a funeral and distrupted the funeral by the things they said or spoke out.

Did this Phelps disrupt the funeral or interfer in the funeral.

I should read up on this situation but I really don't care to read about a group showing up and disrupting a funeral.

What happened? :eek:

EDIT
I was assuming a family asked a church to use the church for a funeral, the church later found out the person deceased was gay and the church members showed up and disrupted or protested the funeral- is that it?

Otto's description is right. I don't know too much about them but they don't seem to be a very organized church in terms that they conduct things like funerals or weddings but more of an interest group that goes around protesting. Everything I've heard about this case and other cases where they have showed up at soldier's funerals is that they protest along the procession route and, for obvious reasons, aren't allowed onto the cemetary grounds or where the services are held. I'm not aware if they have ever tried to crash an actual service or onto cemetary grounds.

In addition to protesting soldier's funerals they've also been involved in protesting against homosexuality at a variety of other events and locations. A few years ago a kid was suspended from a highschool in Suburban Minneapolis for wearing a shirt that said "Straight Pride" and Fred Phelp's group showed up to protest the school.

[MadMax]

Again I don't deny that libel and slander, along with hate speech, flies in the face of the First Ammendment. My limited understanding though regarding libel and slander is that it is very narrowly determined. I still don't know if those apply to this case and if I read you right you're not saying they do just that they are an example of legal impediments to free speech.

They don't fly in the face of the First Amendment at all. Because libel and slander laws govern speech among private parties. Not restrictions of speech from the government.

Before there is any Constitutional analysis in these cases the first question is always: is there a "state actor" restricting speech? If there is, then it raises First Amendment questions. If not...then it doesn't.

[rhester]

These people are from Westboro 'Baptist Church' which is really more of a closed enclave. The location of the funeral and the deceased person have nothing to do with Westboro. I wouldn't really think of them as a church, outside of the fact that they choose to call themselves one.

The Church members drive around the country and go to many soldier's funerals and stand outside and scream "Praise God for Toe Tags", "God Hates ****", and carry signs that say things like, "Thank God for explosively formed projectiles." They’ve even shown up in the past with pictures of the dead soldier on a placard with the slogan, “[Son's name] is in hell” underneath. The son wasn't gay and nobody involved had anything to do whatsoever with these protesters. They just show up at every soldier's funeral that they can to scream disruptive, hateful, and painful things at the family, presumably for publicity.

Their assertion is that God hates homosexuals so much that because some people tolerate them, God has damned all of America. That damnation is in the form of the war in Iraq and these soldiers were struck down by God's divine wrath for the sins of our country.

That clears this up ALOT.

Sick group.

[rhester]

Otto's description is right. I don't know too much about them but they don't seem to be a very organized church in terms that they conduct things like funerals or weddings but more of an interest group that goes around protesting. Everything I've heard about this case and other cases where they have showed up at soldier's funerals is that they protest along the procession route and, for obvious reasons, aren't allowed onto the cemetary grounds or where the services are held. I'm not aware if they have ever tried to crash an actual service or onto cemetary grounds.

In addition to protesting soldier's funerals they've also been involved in protesting against homosexuality at a variety of other events and locations. A few years ago a kid was suspended from a highschool in Suburban Minneapolis for wearing a shirt that said "Straight Pride" and Fred Phelp's group showed up to protest the school.

They are not Christians.
There is a hell.
Well, you can guess the rest.

[MadMax]

Good timing.

http://news.galvestondailynews.com/story.lasso?ewcd=ca5de54a31ed2eb0

Courts: Governments can't sue for libel

By Rhiannon Meyers
The Daily News

Published November 6, 2007

GALVESTON — An appeals court ruled in 2002 that school districts can’t sue for defamation, so Galveston school district may face some hurdles if it moves forward with its lawsuit.

In a case that Galveston school district’s attorney argued is different, Port Arthur’s public school district in 2001 tried to sue a blogger for defamation. The Texas Ninth Court of Appeals tossed out the lawsuit based on black-letter law: New York Times v. Sullivan clearly prohibits such lawsuits.

“The question presented is whether a governmental unit may sue for defamation,” the opinion states. “The answer is no.”

Galveston public school district’s attorney David Feldman said the district would not be the plaintiff if a suit were filed — the firm would file a suit on behalf of administrators in their official capacities and individual board members. The suit, however, would be funded from the district’s budget.

Galveston public school district’s law firm last week sent gisdwatch.com administrator Sandra Tetley a letter demanding she remove what it termed libelous statements posted by her or anonymous users on her Web site www.gisdwatch.com and refrain from allowing such postings in the future.

If she refuses, the district plans to sue her, the demand letter stated. The so-called libelous postings accuse Superintendent Lynne Cleveland, trustees and administrators of lying, manipulation, falsifying budget numbers, using their positions for “personal gain,” violating the Open Meetings Act and spying on employees, among other things.

Feldman said Galveston’s potential lawsuit and Port Arthur’s suit are completely different – Galveston’s cases involves what its attorneys claim is defamation of individual officials rather than the district as a whole, he said.

“These (cases) are night and day,” he said.

Port Arthur Sues A Blogger

Philip Klein of Nederland runs a Web site called SouthEast Texas Political Review, a commentary on local issues.

In April 2000, Klein wrote a story reporting mayhem at a Port Arthur public high school prom. Klein wrote that there was a “huge gang fight” at Thomas Jefferson High School’s prom, labeling it: “TJ’s Prom From hell.”

The distinct sued Klein for defamation.

The appellate court tossed out the district’s appeal because its lawsuit was filed by a “unit of the state” and not a public official, the 2002 opinion states.

Prosecutions for libel on government have no place in the American system of jurisprudence, the Supreme Court ruled in Times v. Sullivan, which set the standard for defamation.

“If the government is permitted to use public resources to bring defamation claims against its critics, criticism of government will be silenced through, at the very least, fear of monetary loss,” stated the opinion authored by Justice David B. Gaultney.

A government or public official, however, could file individual lawsuits, if the defamatory attack is specifically targeted at them, the opinion states.

That’s why Feldman said the district has a sound legal basis to sue Tetley, he said.

Depending on what Tetley removes, the lawsuit will be filed in the name of individual officials, Feldman said.

Reputation

Port Arthur public school district argued that the alleged defamatory statements injured the district’s reputation, which was important in an era of competition for students between public and private schools.

“The importance of maintaining a government’s good reputation does not justify permitting the government to attack its critics by defamation suits,” the opinion states.

Cleveland has said trustees decided to take legal action after several board members asked what could be done about material on the site that was deterring potential employees and families from moving into the school district.

“It affects the image of the district; it affects teacher recruitment,” she said.

The statements, Feldman argued, accuse administrators and trustees of crimes — that kind of disruptive speech hinders the district from running effectively and efficiently, he said.

“They have a deep and abiding obligation to taxpayers to function in an effective and efficient way,” he said.

“If you got people out there accusing or stating that your public officials are committing crimes, it disrupts the effective, efficient operation of government.”

Tetley has not removed any postings. She said she’ll consult with her attorneys before deciding what, if anything, to delete.

[rhester]

he's neither a pastor nor a christian...even by the most liberal of definitions.

honestly, i haven't seen the pleadings...and i don't know which state law's standards would be applied in this proceeding. but assuming it's as liberal as we are here in Texas :) .... then the GTE case that was cited above is an analagous.

Whoa! That group is sick.
Thanks for clarification, I was only reading the exchange between MadMax and Rocketsjudoka, the rest of that story is really perverted.

What in the world in happening in the world?

I am feeling really mad now about this.

[MadMax]

Whoa! That group is sick.
Thanks for clarification, I was only reading the exchange between MadMax and Rocketsjudoka, the rest of that story is really perverted.

What in the world in happening in the world?

I am feeling really mad now about this.

"...when a religion is created on the subtle premise that God withholds his love and you must submit to the system to earn that love, I consider it the worst of corruptions." - Erwin McManus, Pastor of Mosaic (Los Angeles)

[rhester]

"...when a religion is created on the subtle premise that God withholds his love and you must submit to the system to earn that love, I consider it the worst of corruptions." - Erwin McManus, Pastor of Mosaic (Los Angeles)

If I could talk about Jesus and Christianity to everyone in the world but I didn't love others, I would only be making meaningless noise. If God gave me the gift to tell people how to solve their problems and if I knew all the mysteries of science and knew the answer to every question, and if I had the gift of faith so that I could do miracles, But if I don't have God's gracious love, if I don't have His longsuffering, compassion and mercy for people- then I am really nothing at all. Zero!

If I gave everything I have to the poor and even sacrificed my own life, I could boast about it; but if I didn't love others, it would be worthless.

God's love is always patient and kind. His love is not jealous or boastful or proud or rude. Love is not self promoting or self centered. Love won't respond with anger, and it keeps no record of when it has been wronged. It is never glad about injustice but rejoices whenever the truth is revealed. Love never gives up on others, never loses faith in God, is always hopeful, and endures through every difficulty.

God's love will last forever, all men's great gifts will pass away. Now we know only a little about God's love, but in the end when we see God, we will see how we didn't need so many things on earth.

It's like this: When I was a child, I spoke and thought and reasoned as a child does. But when I grew up, I put away childish things. Now we see life imperfectly as in a poor mirror, but in God's presence we will see life correctly. All that I know now is partial and incomplete, but then all my questions about God will be answered, just as God knows everything about me, He will be revealed clearly to me.

There are three things that will endure in eternity-faith, hope, and love-and the greatest of these is love.

Paul's thoughts, in my words.

[rocketsjudoka]

They don't fly in the face of the First Amendment at all. Because libel and slander laws govern speech among private parties. Not restrictions of speech from the government.

Before there is any Constitutional analysis in these cases the first question is always: is there a "state actor" restricting speech? If there is, then it raises First Amendment questions. If not...then it doesn't.

I have to agree with you that it doesn't necessarily fly in the face of the letter of the law but it certainly flies in the face of the spirit. It also opens up the possibility of government taking a back door route to restricting speech through filing civil suits and /or individuals in government doing so. Again I have no idea of the case law on this but if the standards of lawsuits are loose then I don't see why Dick Cheney couldn't just sue protestors.

[rocketsjudoka]

Good timing.

Courts: Governments can't sue for libel

Sorry I had posted my last post before I saw this. While this makes me feel better, somewhat, I still wonder though could an individual in the government sue as an individual a critics speech on the basis of emotional harm?

For that matter given that politician's families have frequently become fodder for political debate and campaign rhetoric could a politician sue a political opponent or critic over comments about a family member?

[rocketsjudoka]

They are not Christians.
There is a hell.
Well, you can guess the rest.

I would never judge Christians on the basis of this group. I'm not defending their message only their right to present that message in the public sphere. I totally agree their message is abhorrent and their choice of delivering it along the procession route of a funeral highly offensive. That said though free speech isn't usually tested on what is widely considered acceptable and popular. We live in a society with several divergent opinions and interests that rouse great passions. Sometimes the views of 49% of the people might be so opposed by 51% as to be considered offensive. What I don't like is the idea of the majority silencing the minority speech through legal means and I don't see much of a difference between passing laws or punishing them through lawsuits.

[rhester]

I would never judge Christians on the basis of this group. I'm not defending their message only their right to present that message in the public sphere. I totally agree their message is abhorrent and their choice of delivering it along the procession route of a funeral highly offensive. That said though free speech isn't usually tested on what is widely considered acceptable and popular. We live in a society with several divergent opinions and interests that rouse great passions. Sometimes the views of 49% of the people might be so opposed by 51% as to be considered offensive. What I don't like is the idea of the majority silencing the minority speech through legal means and I don't see much of a difference between passing laws or punishing them through lawsuits.

No, I understand you points- I never see you as judgmental, I was mixed up about what actually took place.

I don't think it is good anytime anyone's public speech is legally oppressed (remember I don't mind giving a sermon in a public park), but if it is the govt. doing it, then I usually feel it is very wrong and very dangerous.
In cases of civil suit it is more a matter of libel and slander or harrassment; and I think that is where it should be settled.

I don't know if you are aware of this but as a pastor I face some real sticky stuff on this issue (not that I preach about politics or campaign for Ron Paul in church- I haven't once mentioned his name (so far :D ))

But the IRS won't allow you to endorse a candidate or speak against the president, or do anything politically in your church without threatening to revoke you 501C 3 non profit status, which isn't really a big deal to me, except that they then can go back and audit all your members for their tax deductible donations and even file against them for taxes, penalties and interest.

It is a huge club in the govt's hands to keep pastors from talking politics.

I don't care to talk politics, but I do feel my free speech rights violated by this type action by the IRS.

There are cases I understand where this is invoked.

I was told that anyways in a pastor's training and they handed us all these examples and laws and stuff.

Anyways if you know anything about that you probably know more than I do. :)

[MadMax]

Sorry I had posted my last post before I saw this. While this makes me feel better, somewhat, I still wonder though could an individual in the government sue as an individual a critics speech on the basis of emotional harm?

For that matter given that politician's families have frequently become fodder for political debate and campaign rhetoric could a politician sue a political opponent or critic over comments about a family member?

They can sue. Yes. That's as simple as going down to the courthouse, filing a petition and paying a filing fee.

But they won't win. Did you see the standard for intentional infliction of emotional distress in TX for example from that GTE case? It generally has to be something extraordinary. Such as someone showing up at your son's funeral with his picture with the words "He's In Hell Right Now."

It's not as if they just sue and win. They have to prove their case meeting elements set out by courts. Just because you're hurt isn't gonna get it in these cases. The conduct has to be extreme.

[MadMax]

What I don't like is the idea of the majority silencing the minority speech through legal means and I don't see much of a difference between passing laws or punishing them through lawsuits.

The ONLY part of this that can be characterized as punishment is the punitive damages aspect.

You don't prove up damages in a civil case with punishment in mind. You have to prove them up based on something.

Punishment is left to the government. Governments pass laws. If you break those laws you are punished. That's not what happened here. Congress made no law here. The First Amendment begins: "Congress shall make no law..."

[rocketsjudoka]

They can sue. Yes. That's as simple as going down to the courthouse, filing a petition and paying a filing fee.

But they won't win. Did you see the standard for intentional infliction of emotional distress in TX for example from that GTE case? It generally has to be something extraordinary. Such as someone showing up at your son's funeral with his picture with the words "He's In Hell Right Now."

It's not as if they just sue and win. They have to prove their case meeting elements set out by courts. Just because you're hurt isn't gonna get it in these cases. The conduct has to be extreme.

What still makes me uneasy is that "extreme" can be highly subjective. Many considered showing pictures of aborted fetuses as at anti-abortion protests to be extreme.

The ONLY part of this that can be characterized as punishment is the punitive damages aspect.

Punitive damages though often end up being much more than other damages awarded as in this case. By definition "punitive" means punishment and I don't see how you can consider that not a matter then of punishment for speech.

[rocketsjudoka]

No, I understand you points- I never see you as judgmental, I was mixed up about what actually took place.

I don't think it is good anytime anyone's public speech is legally oppressed (remember I don't mind giving a sermon in a public park), but if it is the govt. doing it, then I usually feel it is very wrong and very dangerous.
In cases of civil suit it is more a matter of libel and slander or harrassment; and I think that is where it should be settled.

I don't know if you are aware of this but as a pastor I face some real sticky stuff on this issue (not that I preach about politics or campaign for Ron Paul in church- I haven't once mentioned his name (so far :D ))

But the IRS won't allow you to endorse a candidate or speak against the president, or do anything politically in your church without threatening to revoke you 501C 3 non profit status, which isn't really a big deal to me, except that they then can go back and audit all your members for their tax deductible donations and even file against them for taxes, penalties and interest.

It is a huge club in the govt's hands to keep pastors from talking politics.

I don't care to talk politics, but I do feel my free speech rights violated by this type action by the IRS.

There are cases I understand where this is invoked.

I was told that anyways in a pastor's training and they handed us all these examples and laws and stuff.

Anyways if you know anything about that you probably know more than I do. :)


I'm aware of that situation and I don't see it quite as a punishment unless you feel that tax free status is a right as a church. While not specifically enumerated in the Constitution I believe the separation of church and state has become a principle. In terms of that the government shouldn't interfere in church that goes both ways regarding church not interfering in government. If a church chooses to be involved in electoral politics I think they should but I don't see removing tax free status is a penalty as that was the government's to grant in the first place.

In this case I'm not aware of Phelp's church having tax free status but as free speech is considered both a Constituational right and is culturally considered a key value of our society I am troubled by it. As Mad Max notes there might not be a Constitutional issue but clearly the principle of free speech is being challenged. I don't believe that is a privelage taht is granted by the courts but cultural value.

[MadMax]

What still makes me uneasy is that "extreme" can be highly subjective. Many considered showing pictures of aborted fetuses as at anti-abortion protests to be extreme.



Punitive damages though often end up being much more than other damages awarded as in this case. By definition "punitive" means punishment and I don't see how you can consider that not a matter then of punishment for speech.

1. Everything we do in a courtroom is subjective on some level. What particular judge is hearing the case? What's the jury like? Is it in Texas or California? We use case law to say, "well, in this previous case we decided this was X...so given these facts in this case __________________."

2. Punitive damages are determined by looking at a few factors. Two off the top of my head are the egregiousness of the act and the financial condition of the defendant. Of course they're for punishment. But it's not merely what he said that he's being punished for here...it's where he said what he said...it's the context. It's how he caused the harm he caused. Again, even if this were the government behind all this, there's no such thing as unabridged free speech. There are always time/place restrictions that courts have held to be reasonable. Your right to free speech is not so strong that you can just say whatever you want and then walk away from the consequences of what your words did.

3. I'm not sure what you'd have us do otherwise. If I'm reading you right, libel/slander law would be gone....harassment (sexual and otherwise) in the form of words would be something no one could seek redress for...and intentional infliction of emotional distress with words would be gone as well. I don't think any of that is palatable. The government can't sue you for these things...but private citizens sure can. And in my mind they absolutely, positively should be able to.

[rocketsjudoka]

3. I'm not sure what you'd have us do otherwise. If I'm reading you right, libel/slander law would be gone....harassment (sexual and otherwise) in the form of words would be something no one could seek redress for...and intentional infliction of emotional distress with words would be gone as well. I don't think any of that is palatable. The government can't sue you for these things...but private citizens sure can. And in my mind they absolutely, positively should be able to.

I would not do away with them but see them more limited. Clearly if someone is harrassing someone sexually in terms of touching or using supervisor power to make sexual advances that is beyond mere speech. If it is a matter of cracking dirty jokes in their presence or even commenting on their appearance I would hesitate. As for libel and slander the standard should be if that hurts them financially or limits them in some way from leading their life. As noted in this case Phelps wasn't slandering the Marine or his family. While celebrating his death as an example of God's punishment I'm not aware of that speech proving a limitation to the family although it certainly caused emotional trauma. as I said before I don't deny there is emotional harm by speech but to met that is a risk but if the standard is someone peacefully protesting, especially in regard to the parties to the case a one time protests as I'm not aware of Phelps following / stalking this family strikes me as a very bad precedent. This wasn't a case of a boss trying to feel up a subordinate or threaten to fire them. This wasn't a case of calling someone a liar leading them to lose business. This was a one time political / religious protest.

What it comes down to is that I believe we should err on the side of allowing more speech as long as it is done peacefully and publically even at the risks of causing pain. Given a pluralistic society there are many messages and forms of delivering that many will consider repellent.

Let me ask you this and I will let the issue die afterwords. Would you support a woman getting an abortion suing an abortion protestor standing on public property outside of the abortion clinic holding a picture of an aborted fetus and yelling "Murder!" for causing emotional harm?

[geeimsobored]

Let me ask you this and I will let the issue die afterwords. Would you support a woman getting an abortion suing an abortion protestor standing on public property outside of the abortion clinic holding a picture of an aborted fetus and yelling "Murder!" for causing emotional harm?

You know what's funny? That's already been done, albeit under completely different grounds. NOW (national organization for women) and Planned Parenthood sued under RICO (the legal logic is ridiculous and complex) and they won in the Supreme Court, essentially legalizing RICO suits on protesters. The Supreme Court reversed itself however a couple of years ago.

[rocketsjudoka]

You know what's funny? That's already been done, albeit under completely different grounds. NOW (national organization for women) and Planned Parenthood sued under RICO (the legal logic is ridiculous and complex) and they won in the Supreme Court, essentially legalizing RICO suits on protesters. The Supreme Court reversed itself however a couple of years ago.

I recall that and I also recall that it was reversed to an extent. That said I disagreed then and disagree now with equating an obnoxious but otherwise peaceful group of protestors with gangsters. The ones killing abortion doctors and blowing up clinics is another issue.

[rocketsjudoka]

Let me ask you this and I will let the issue die afterwords. Would you support a woman getting an abortion suing an abortion protestor standing on public property outside of the abortion clinic holding a picture of an aborted fetus and yelling "Murder!" for causing emotional harm?

MadMax;

I understand that you are on the pro-life side of this issue and I apologize if this comes off as a cheap shot. I'm not trying to debate the abortion issue again but do want to see where you stand on the question of free speech vs emotional harm from a personal standpoint vs a legal standpoint. If you find the question above board don't feel obligated to answer it and I won't hold it against you if you don't.

[rhester]

I'm aware of that situation and I don't see it quite as a punishment unless you feel that tax free status is a right as a church. While not specifically enumerated in the Constitution I believe the separation of church and state has become a principle. In terms of that the government shouldn't interfere in church that goes both ways regarding church not interfering in government. If a church chooses to be involved in electoral politics I think they should but I don't see removing tax free status is a penalty as that was the government's to grant in the first place.

In this case I'm not aware of Phelp's church having tax free status but as free speech is considered both a Constituational right and is culturally considered a key value of our society I am troubled by it. As Mad Max notes there might not be a Constitutional issue but clearly the principle of free speech is being challenged. I don't believe that is a privelage taht is granted by the courts but cultural value.

Not talking about Phelps here- but to my point

It is not the tax free status that I am talking about, it is being able to take the donations as a tax deduction. It has nothing to do with our tax free status, that is granted by the state of Texas. That is not affected at all.

A church does not have to file a 501C3 with the IRS for the donations to be tax deductible. You legally just have to meet the IRS definition of a church. However many contributors only feel comfortable giving to a church that has 501C3 approval. Our ministry was not 501C3 for years until some contributors talked to me and told me they did not feel comfortable that our ministry was not. So I decided it was no big deal and filed for the 501C3, it took 2 yrs to get approval.

The problem I am addressing is that if I endorse a candidate in church or criticize a candidate or criticize politics or the administration etc etc in church during campaign years the IRS by law can revoke the 501C3.

At that point what can happen is not that we just lose the 501C3. The IRS takes it a step further and then can file against the church decaring that since we lost our 501C3 none of the contributions should have been tax deductible contributions and then they go after the church members and all contributors to pay back taxes, penalties and interest on their previously filed contributions.

It has been a real leverage to enforce the no speech rule they have on churches who endorse or promote candidates.

Also if I got up in the church and told them what a sorry president Bush is for invading Iraq and I kept doing it, they could revoke our 501C3 for 'influencing' the members during a campaign. I DON'T DO THAT. But still my right to speak up on politics is severely limited when there are campaigns going on.

It has to do with the IRS being able to force us through threat of reprisal to limit our free speech rights.

"In 1954, Congress approved an amendment by Sen. Lyndon Johnson to prohibit 501(c)(3) organizations, which includes charities and churches, from engaging in any political campaign activity. To the extent Congress has revisited the ban over the years, it has in fact strengthened the ban. The most recent change came in 1987 when Congress amended the language to clarify that the prohibition also applies to statements opposing candidates.

Currently, the law prohibits political campaign activity by charities and churches by defining a 501(c)(3) organization as one "which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office."

The IRS has published Fact Sheet 2006-17, which outlines how churches, and all 501(c)(3) organizations, can stay within the law regarding the ban on political activity. Also, the ban by Congress is on political campaign activity regarding a candidate; churches and other 501(c)(3) organizations can engage in a limited amount of lobbying (including ballot measures) and advocate for or against issues that are in the political arena. The IRS also has provided guidance regarding the difference between advocating for a candidate and advocating for legislation. "

I think all of the above is wrong. To say that somehow political speech about a candidate should be connected to tax deductions allowed for contributions to charities and churches is wrong.

The reason there are tax deductions for contributions is to encourage giving and remove a tax burden for those who give to charity and those who support their religion. It is a tax benefit to contributors.

To somehow take that away because the church endorses a candidate or speaks against a candidate limits their free speech by threat of taxation, penalties and interest.

All this law is stating is that churches shouldn't be allowed to have free speech with regard to politcal candidates. I think that is fundementally in conflict with the intention of constitutional protection of speech, using the same argurments you have already posted.

What if you were told you can no longer deduct your mortgage interest as a tax deduction if you put up candidate signs in your yard or told your neighbors who you wanted people to vote for. And to add to that the IRS was going to audit your previous returns and you will have to pay taxes on those mortgage deductions with penalties and interest.

I would be against that.

[MR. MEOWGI]

Churches should just have to pay taxes like every other business.

[rhester]

Churches should just have to pay taxes like every other business.

I wouldn't have a problem with that.
We often do, but we also have our tax exempt status from the state of TX

[MadMax]

I would not do away with them but see them more limited. Clearly if someone is harrassing someone sexually in terms of touching or using supervisor power to make sexual advances that is beyond mere speech. If it is a matter of cracking dirty jokes in their presence or even commenting on their appearance I would hesitate. As for libel and slander the standard should be if that hurts them financially or limits them in some way from leading their life. As noted in this case Phelps wasn't slandering the Marine or his family. While celebrating his death as an example of God's punishment I'm not aware of that speech proving a limitation to the family although it certainly caused emotional trauma. as I said before I don't deny there is emotional harm by speech but to met that is a risk but if the standard is someone peacefully protesting, especially in regard to the parties to the case a one time protests as I'm not aware of Phelps following / stalking this family strikes me as a very bad precedent. This wasn't a case of a boss trying to feel up a subordinate or threaten to fire them. This wasn't a case of calling someone a liar leading them to lose business. This was a one time political / religious protest.

What it comes down to is that I believe we should err on the side of allowing more speech as long as it is done peacefully and publically even at the risks of causing pain. Given a pluralistic society there are many messages and forms of delivering that many will consider repellent.

Let me ask you this and I will let the issue die afterwords. Would you support a woman getting an abortion suing an abortion protestor standing on public property outside of the abortion clinic holding a picture of an aborted fetus and yelling "Murder!" for causing emotional harm?

1. Again, I think you're seeing this as some sort of ban. It's not. The government isn't condemning his speech. 12 jurors are saying it caused someone harm that he should be compensated for. That's not what the First Amendment is about.

2. As for your questions...I'd need more facts. I'd need to know how the woman was harmed. Did she have to seek counseling? Did she have to quit her job? Did it cause her to lose sleep or appetite? Those are the sorts of things we say are evidence of injury. It's not merely the words themselves...and I think that's where you're getting stuck in this analysis...because you're viewing it as if it just stops given the circumstances of the moment....it takes more than that to award damages for these sorts of cases. In this particular case...you only get one funeral for your son. Only one chance to say a final goodbye. When that's stolen from you, I don't think it's a stretch to think that family could have been injured.

What we're discussing here, though, is all pretty well-settled law. We have many years of harassment and tons of years of libel/slander law out there. We have lots of cases interpreting the Constitution and the First Amendment, specifically.

One last time: if there's not a state actor involved, then it's not a Constitutional issue. It's really that simple.

[MadMax]

MadMax;

I understand that you are on the pro-life side of this issue and I apologize if this comes off as a cheap shot. I'm not trying to debate the abortion issue again but do want to see where you stand on the question of free speech vs emotional harm from a personal standpoint vs a legal standpoint. If you find the question above board don't feel obligated to answer it and I won't hold it against you if you don't.


Again...there is no free speech issue here. See, above. The limitation of the First Amendment is on the government....not from private individuals.

Walk into work today and start spouting off about something. Scream about it. Protest. You'll find your boss has no First Amendment responsibilities that keep him/her from reprimanding or firing you.

[MadMax]

Churches should just have to pay taxes like every other business.

they're nonprofits. they're governed by the nonprofit acts from the state. in order to meet nonprofit status they have to meet certain criteria.

churches, temples, mosques, the american heart association, etc. don't pay taxes because they don't have income in any traditional sense. they rely on donations.

when churches sell bibles...or CD's...or something like that...and if they retain profits without circulating them out for some charitable cause...then it's income and it's taxable.

[Major]

Churches should just have to pay taxes like every other business.

Do you think this should apply to all other non-profit organizations?

[rocketsjudoka]

1. Again, I think you're seeing this as some sort of ban. It's not. The government isn't condemning his speech. 12 jurors are saying it caused someone harm that he should be compensated for. That's not what the First Amendment is about.

While not a statuatory ban this seems to be a back door way of banning unpopular speech.

2. As for your questions...I'd need more facts. I'd need to know how the woman was harmed. Did she have to seek counseling? Did she have to quit her job? Did it cause her to lose sleep or appetite? Those are the sorts of things we say are evidence of injury. It's not merely the words themselves...and I think that's where you're getting stuck in this analysis...because you're viewing it as if it just stops given the circumstances of the moment....it takes more than that to award damages for these sorts of cases. In this particular case...you only get one funeral for your son. Only one chance to say a final goodbye. When that's stolen from you, I don't think it's a stretch to think that family could have been injured.

Fair enough and I won't belabor the question by adding details to a hypothetical question.

Again...there is no free speech issue here. See, above. The limitation of the First Amendment is on the government....not from private individuals.

Walk into work today and start spouting off about something. Scream about it. Protest. You'll find your boss has no First Amendment responsibilities that keep him/her from reprimanding or firing you.

As I am co-owner in the company I don't think I will be firing myself, although there aren't plenty of times that I probably should for spending too much time on CF.net. ;)

Anyway I don't see that as comparable as the place of work is a private property and as an employee you are there to work and actions that affect the productivity of the workplace is a tangible harm. I don't see how that is comparable to individuals on a public street with no other connection protesting.

What we're discussing here, though, is all pretty well-settled law. We have many years of harassment and tons of years of libel/slander law out there. We have lots of cases interpreting the Constitution and the First Amendment, specifically.

One last time: if there's not a state actor involved, then it's not a Constitutional issue. It's really that simple.

Again I'm forced to agree with you that this may not be a Constitutional issue but as I said my own feeling is why it doesn't violate the letter of the First Ammendment it violates the spirit.

While its been said before I appreciate your well thought out responses and debating what is a very emotional topic calm and reasoned.

[rocketsjudoka]

The problem I am addressing is that if I endorse a candidate in church or criticize a candidate or criticize politics or the administration etc etc in church during campaign years the IRS by law can revoke the 501C3.

As obviously I'm not a lawyer and know very little about tax law I'm curious is 501C3 status threatened only when the pastor speaks out on a political issue at the pulpit?

If a pastor not wearing pastoral vestements or any other indication of office were to speak out publically, say at a campaign rally, would that put 501C3 status at threat?

[MadMax]

While not a statuatory ban this seems to be a back door way of banning unpopular speech.



Fair enough and I won't belabor the question by adding details to a hypothetical question.



As I am co-owner in the company I don't think I will be firing myself, although there aren't plenty of times that I probably should for spending too much time on CF.net. ;)

Anyway I don't see that as comparable as the place of work is a private property and as an employee you are there to work and actions that affect the productivity of the workplace is a tangible harm. I don't see how that is comparable to individuals on a public street with no other connection protesting.



Again I'm forced to agree with you that this may not be a Constitutional issue but as I said my own feeling is why it doesn't violate the letter of the First Ammendment it violates the spirit.

While its been said before I appreciate your well thought out responses and debating what is a very emotional topic calm and reasoned.

1. No. There's no ban. Say whatever you want. The government isn't restricting your right to say what you want. The government never told him he couldn't say that. There is a distinction between public and private actors.

2. I hear ya. But if an employee walks in today and wants to protest something...and scream across the office. Or even if she wants to do it peacefully....you owe here absolutely zilch in the way of free speech rights. None at all. Because you didn't make the promises under the First Amendment...the government did. You personally owe absolutely no one the right to free speech.

3. I understand you feel it violates the spirit...but please understand the Bill of Rights is a group of promises by the government...things the government won't do. The government wasn't harmed...they're not bringing suit here. Someone claimed injury. Courts hear the facts and determine if someone was, indeed, injured....and if so, what it would take to compensate for that injury. That's it. And that's why this has nothing to do with Constitutional free speech analysis. And it's why the courts hearing this matter won't even be considering it.

[MadMax]

As obviously I'm not a lawyer and know very little about tax law I'm curious is 501C3 status threatened only when the pastor speaks out on a political issue at the pulpit?

If a pastor not wearing pastoral vestements or any other indication of office were to speak out publically, say at a campaign rally, would that put 501C3 status at threat?

pastors can speak at rallies all they want. they're still individual citizens. what they can't do is turn their churches into PAC's. they can't endorse a candidate from the pulpit.

[rocketsjudoka]

pastors can speak at rallies all they want. they're still individual citizens. what they can't do is turn their churches into PAC's. they can't endorse a candidate from the pulpit.

That's what I thought and didn't think that 501C3 status would threaten the free speech right of pastors as individuals.

Again thank you for your responses and I think we are at an impasse regarding the main topic but it has been interesting and educational.

[MadMax]

That's what I thought and didn't think that 501C3 status would threaten the free speech right of pastors as individuals.

absolutely. THE GOVERNMENT can't do that!!! ;)

[rhester]

As obviously I'm not a lawyer and know very little about tax law I'm curious is 501C3 status threatened only when the pastor speaks out on a political issue at the pulpit?

If a pastor not wearing pastoral vestements or any other indication of office were to speak out publically, say at a campaign rally, would that put 501C3 status at threat?

My understanding is it has to do with what is done in the church meeting. Or on the church premises. Or as representing the church in official capacity.

The 501C3 status is only a validation from the IRS that the charitible organization or religious org. is recongnized as such by the IRS for the purpose of tax deductable donations.

The law I've questioned is based on the premise that the organization only exists for the purpose of charity or religion and while issues may be discussed, these issues cannot be discussed concerning a particular politician or candidate with regard to an election.

I can say I do not favor abortion, but I cannot say Hillary favors fed funding of abortion. :D Except I just did.

I believe I can go to a public campaign meeting as a citizen and speak concerning a candidate if I am not acting in an official church capacity.

This is one of those can of worm things for me.

I have read that back in the late 1930's- 40's many religious leaders didn't speak up in Germany concerning the treatment of Jews and they said nothing about actions taken by Hitler and others that bothered them. They were silent often.

In other words there are moral and religious issues a minister may feel strongly about but he is currently restricted from discussing those involved.

For instance the death penalty. Many people vote without knowing where a candidate stands on this issue. The minister I believe should have the opportunity to tell those attending a church meeting information that would help them understand where a candidate stands on this kind of issue that could very well be a morality choice for the religious.

If my religion was very opposed to the death penalty or to wars or armed conflicts; I think free speech should actually protect the minister or rabbi or other religious leader who would inform his own organization concerning a candidates voting record or public statements regarding such.

For myself, I don't bring up politics, but I am just stating my opinion in the context of the 1st admendment rights.

[rhester]

pastors can speak at rallies all they want. they're still individual citizens. what they can't do is turn their churches into PAC's. they can't endorse a candidate from the pulpit.

Actually it doesn't even have to come close to being a PAC by the letter of the law, you cannot speak against a candidate or endorse a candidate in any way.

You cannot say- Joe has supported the death penalty and we don't believe the death penalty should be supported.

At least I have been told this at seminars... I really don't know and I find no need myself to discuss candidates in church... we're not about that :)

I don't like the religious right and the politics in church stuff as it is, I don't think it is good though to have a law that restricts a religious leader from speaking about a candidate if they so choose.

[MadMax]

Actually it doesn't even have to come close to being a PAC by the letter of the law, you cannot speak against a candidate or endorse a candidate in any way.

You cannot say- Joe has supported the death penalty and we don't believe the death penalty should be supported.

At least I have been told this at seminars... I really don't know and I find no need myself to discuss candidates in church... we're not about that :)

I don't like the religious right and the politics in church stuff as it is, I don't think it is good though to have a law that restricts a religious leader from speaking about a candidate if they so choose.

You're right...it is far less than turning the church into a PAC.

[Master Baiter]

I can't believe y'all are still going back and forth on this.

[rocketsjudoka]

I can't believe y'all are still going back and forth on this.
Well this is the Debate and Discussion forum.

[rhester]

I can't believe y'all are still going back and forth on this.

I have a simple mind, I get bored easily, I read the GARM early and often but don't post much...

I forgot what else..... :rolleyes: