first amendment

How the Supreme Court Could Crack Down on Westboro Baptists’ Funeral Protests

The comedians at Westboro Baptist Church have the right to say mean, terrible things about Americans, even while they’re being buried — or so we’ve argued. But what if the Constitution, which bars the government from inhibiting the freedom of expression, does not bar the government from creating a law that lets private citizens do just that?

This is less a thorough legal argument on our part and more of a thought exercise, but let’s roll with attorney Nathan Tucker’s interesting premise.

The father of the fallen marine, Albert Snyder, sued the protesters for, among other things, intentional infliction of emotional distress. The jury awarded Mr. Snyder $5 million in damages, a verdict that was later overturned by the Fourth Circuit Court of Appeals on the grounds that the protesters’ speech was protected by the First Amendment. The First Amendment, however, provides that, “Congress shall make no law ? abridging the freedom of speech.” But there is no federal, state or local law at issue in this case. No one is arguing that the government tried to suppress Mr. Phelps’ speech in any way. This suit is entirely private in nature. It involved the offensive remarks made by one private individual against another private individual at a private event. In a type of personal injury suit, the aggrieved party sued the harasser in court for emotional damages.

How, then, does the First Amendment apply to this case at all? In cases such as New York Times v. Sullivan and Shelley v. Kraemer, the Supreme Court attempted to justify the First Amendment’s reach into private suits by relying on the tenuous argument that, because the power of the state is used to enforce the verdict (through the court system), the government is suppressing the speech at issue.

In essence, the court reasons that, since the court system coercively transfers money from A to B because of A’s speech, that it becomes a government restriction on speech. It is an ingenious but dangerous argument that brings every single court action under the Constitution’s orbit. So long as there is a plausible political or social commentary behind one’s actions, he is now immune from liability. If this were the case, a minority resident would have no recourse against his prejudiced neighbors if they decided to demonstrate outside his property every night, day after day. Or a host could not evict a rowdy house guest who was becoming verbally abusive if that guest was doing so as a political commentary. And suits for slander and libel would be impossible.

And taking the court’s precedent to its logical conclusion, no one could sue for monetary damages because, if awarded, the court would be depriving the defendant of private property without just compensation, in violation of the 5th Amendment. And no marriage could be dissolved, because the Contract Clause prohibits states from breaking contracts. Since these results were clearly not intended by the Constitution, the court should use this case to overrule its past precedents and affirm that the mere application of neutral principles to enforce private suits does not constitute government action. The Constitution was intended to only govern public behavior — not private.

It’s one helluva snowball, but were the justices to limit their reasoning to a narrower scope, we could see it.

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  • terrwill

    Because of the emergence of fantastic Gay and Gay friendly students outrageousing (did I just create a new word??) the inbred vile savage scumbags of the WBS they are most likely to begin running ascared as they recently did in Louisiana. Unfortunately due to the solemness of a soldiers family we can’t expect same happy results. However if there was a statue enacted that would prevent these scumbags from infecting soldiers and AIDS victims funerals they would indeed retreat back to the under the rock they crawled out from under……..

  • fredo777

    Having read that, it makes it that much clearer how full of shit the court was for overturning the ruling in the first place.

  • Dave

    Oh dear. That’s the sort of slippery slope argument that gets one laughed out of first-year con law classes.

    Look, the crux of all civil rights actions has always been government action, and in free speech cases, use of the judiciary certainly does sometimes meet the requirement of government action. The question is whether the civil action merely compensates the plaintiff for the defendant’s tortious action, or whether the civil action instead seeks to accomplish what the government itself couldn’t–a restriction on free speech.

    Tucker’s parade of horribles are all completely absurd, by the way. The questions to ask, in each case, are 1) is there a civil rights question, 2) is there a government actor, and 3) is the government action within the scope of due process and the regular exercise of its responsibilities?

    Looking at this individual case, it’s pretty clear that the intention of the verdict wasn’t to compensate the victim, but to stifle the speaker. $5M is a ridiculous amount of damages for IIED; it’s pretty obviously intended to bankrupt WBC and prevent them from engaging in speech and speechlike activities people find unpalatable. The government can no more do so on the behalf of a single plaintiff through the courts than they could through the legislature.

  • J

    I hope they realize that it’s only a matter of time until an angry reletive or attendee of one of these protested funerals (either gay/HIV+/or soldier) opens fire on the scum that is WBC. I have 2 wishes to that regard:
    1) I am alive to see it happen, as it will be a glorious day for all of humanity that this scum no longer exists.
    2) that someone catches it on their phone, or a media outlet is there to capture it for all the world to see, gets posted to youtube, and beats the number of hits Susan Boyle received.
    Just saying…while wishfully thinking.

  • B

    No. 4 · J wrote, “I hope they realize that it’s only a matter of time until an angry reletive or attendee of one of these protested funerals (either gay/HIV+/or soldier) opens fire on the scum that is WBC.”

    …. it kind of happened during Randy Shilts’ funeral, which the Phelps clan showed up at to protest. They were greeted with a barrage of eggs and fruit, according to : “But Tuesday’s protest fizzled in less than a minute. About a dozen Phelps supporters arrived about 20 minutes after the service started,
    carrying signs with such slogans as ‘Shilts in Hell.’

    “The demonstrators were pelted with eggs and fruit amid a deafening chorus of boos and quickly fled under a police escort in vans parked nearby. It could not be immediately confirmed whether Phelps was there.”

  • J

    @B: Sorry for the somewhat delayed response, but I don’t mean throwing some pussy-footing eggs and rotton fruit. I mean real life bullets. These people will someday meet their fate looking down the double barrel of a shotgun. Period. Simple as that. It will not take more then them just showing up to a funeral for someone to be just as prepared to blow them away.
    I don’t ever wish harm on ANYONE, but I’m going to go against my own sentiments on that here. I really do wish someone would do the world some well found justice soon and rid of us every last WBC member, children too. Their souls are already unsalvagable. They are vile, and should all have been aborted when the opportunity was present. Now that abortion is not the answer, annihilation for WBC is.
    I’m not sorry. I would glady donate money and assist in raising money towards attorney fees for the person who wipes them out. But ya gotta get the lead members, like the tranny daughter and granddaughter.

  • angel

    You know ….. The constitution can be changed. In fact, it was meant to be to keep up with society. I am more than willing to give up my right to picket or otherwise interfere with ANYONE’S FUNERAL. I haven’t used that right yet, and highly doubt , (No) I can say for sure ,that I never would want too use that right. Free speech would not be in danger.

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