Last Friday, the Fourth Circuit Court of Appeals ordered Albert Snyder, the father of a dead marine, Marine Lance Cpl. Matthew Snyder to pay $16,510 to Fred Phelps and his Westboro Baptist Church (WBC) to compensate them for their legal fees. Members of the fundamentalist church had picketed Snyder’s son’s funeral in 2006 with signs reading “God hates you,” “You’re going to hell,” and “Thank God for dead soldiers.” The Kansas-based hate group believes God is punishing America because it tolerates homosexuality.
So Albert Snyder had sued for the torts of invasion of privacy and intentional infliction of emotional distress. But as much as I dislike Fred Phelps and the WBC, I think Snyder’s case is weak. While mean-spirited, the WBC’s conduct was not extreme and outrageous, which is what Snyder is required to prove under these torts.
Now Fox News has been passionately defending the Snyder family and condemning the Westboro Baptist Church for some reason I can’t quite fathom because Fox News and the WBC share the same message. The only distinction I see is that Fox News has a bigger audience and therefore doesn’t have to resort to crazy stunts to get their shared message on TV.
But in the following clip, Fox pundits Bill O’Reilly and Megyn Kelly get into a heated argument over the new ruling in this case:
I think Megyn Kelly is right here about much of what she said. But the bottom line is that O’Reilly once again is just flat-out wrong.
If the cemetery or whoever owns the premises wanted to sue the WBC for causing a nuisance or for driving away business, etc. a legitimate case could me made. It might be a close case but at least a good case can be made. However, the Snyder family are suing over alleged mental distress from having been offended by someone else’s free speech. They don’t own the land. There’s certainly no monetary damages from the alleged torts.
Now they didn’t sue for defamation because there’s no case there. If the charge were slander per se, for instance, then they’d have to prove defamation on at least one of four grounds. The defamation has to either falsely accuse the person of having a communicable disease, accuse them of criminal action, accuse them of sexual misconduct, or has to hurt their professional career. The closest option there would be sexual misconduct, but their son really was gay and his sexual orientation is not “sexual misconduct.” The WBC certainly didn’t accuse their son of having a communicable disease, of committing a crime, or say anything that hurts his professional career. He’s dead. He has no professional career. For instance I can make all sorts of accusations against George Washington and there isn’t a damned thing he can do about it. Slander per quod wouldn’t work either because one would have to show special damages. And again, the Snyder family doesn’t seem to have been monetarily affected other than the legal fees.
So they’re stuck with these vague torts of invasion of privacy and intentional infliction of emotional distress, which require extreme and outrageous conduct. But while the Westboro Baptist Church’s rhetoric is vitriolic, it’s just words and nothing they’ve done constitutes as extreme or outrageous conduct.
Now I think it’s unfortunate that the Snyder family is being forced to pay the WBC’s $16,500 legal fees because I honestly don’t think they intended to waste the court’s time with a frivolous lawsuit. But that has no baring on the case. Just because I wish they didn’t have to pay that money and I don’t like the WBC doesn’t mean I think the Snyder family should win their case. I honestly don’t think they have much of a case because people have a right to protest on public land, even people you don’t like.
And it would be hypocritical of me to support Simon Singh as well as Amy Wallace and Paul Offit in their legal battles only to then suddenly turn around and argue that the WBC isn’t allowed to publicly express their opinions. Because ultimately, this comes down to the same thing, a plaintiff trying to use the courts to silence the free speech of those whose opinions they don’t like. Now they had their day in court and made a worthy effort. But at the end of the day they simply lost. It happens.
The best legal case would have been the landowner, who has more legal recourse. The landowner of the cemetery could have tried demanding an injunction against the WBC for hurting their business. And even nearby landowners could have maybe potentially sued for nuisance if the WBC frequently protested there. But you can’t sue just because you’re offended by the message of the protesters and you don’t like the cut of their jib.
What’s the point of free speech if we can just sue people we don’t like? I for one don’t want the courts deciding which peaceful protests are acceptable and which are not just because the protesters are big meanies. As Megyn Kelly says at the end of the above clip–and it’s a great line to go out on–”It was disgusting but we have a First Amendment that allows you to say disgusting things in this country.”
I don’t think you should be surprised by O’Reilly’s views. The man’s a jingoist, and by attacking the Westborough Baptist Church, he gets to show that he’s “independent” and support a dead troop at the same time. Him going against the free speech of those people he disagrees with is also nothing new.
No, it’s not the same thing. We do generally acknowledge that there are reasonable venues for free speech, and unreasonable ones. The point of the right to speak freely has never been to say that you may do it any time and anywhere.
If the Westboro morons had been, as I have myself seen them do, protesting at a Veterans’ Day march, I would say they have a free-speech right to do that.
I think it is not reasonable to do the same thing at a private funeral, even if they plant themselves on public land. A family’s right to be protected from a crowd of people saying, “Thank God your son is dead!” should trump anyone’s right to speak freely at that particular time and place.
That they’re being ordered to pay court costs is a further slap in the face, adding insult to injury added to injury.
Yes, we do acknowledge that there are better places to express one’s speech than others. But we also acknowledge that people have a Constitutional right to peacefully assemble to protest on public land. For instance, we let abortion protesters protest from across the street. And unless the content of the speech falls under defamation, is dangerous, incites people to violence (which doesn’t include pissing off those who disagree enough that they violently retaliate), or violates the wishywashy standards of obscenity law–it’s perfectly legal as the law isn’t intended to regulate content. It doesn’t matter if you’re protesting the Vietnam War or if you’re protesting pants.
Again, if the landowners pressed charges, they might have a case. The legal issue is whether one can prove damages occurred. Did anyone at that funeral spend money on psychological care because they were so distressed by the protest? Did they miss work over it or did their work noticeably suffer because of it? If so, they may be entitled to damages. Otherwise, what are they suing for? Punitive damages? If so, that’s highly unlikely to happen over a little protest since discouraging free speech is antithetical to the intention of the law.
Yes, the WBC are scum. But is there a tort here? I don’t think there is. It’s just unfortunate that the plaintiffs have to pay for the WBC’s legal bills. But quite frankly, that policy is generally a good idea as it serves to deter people of means from bullying those who they don’t like with frivolous lawsuits.
Excellent post Michael!
I think almost no one (besides the WBC members) would disagree that holding such a rally at the funeral of a fallen solider is a deplorable act. My heart goes out to the family who had to tolerate such obscenity during an already trying time. However, silencing free speech in any form, no matter how awful it is, is not the answer.
Excellent juxtaposition re: the Singh case. We, as skeptics, cannot on one side defend Dr. Singh, and with the other prevent WBC from holding their demonstrations.
Honestly, I think WBC should be given a larger stage, for an even wider audience to see. I wager the more people familiar with such an awful group, the more people who can speak out against them. And then we can fight hate speech not by chopping away at our constitutional rights, but by exercising our own free speech in greater volumes.
Yeah, I’m actually in favor of giving the WBC more attention as I think they do the jobs of religious critics far better than the critics could do themselves.
As far as I know it is not OK to protest outside someone’s house b/c it is harassment. I think protesting someone’s funeral is also harassment. I agree that free speech isn’t the issue but instead it’s harassment and public nuisance.
Nuisance typically applies to those living or working in the community and to long-term problems like violations of zoning laws. And while cops have the right to break up a wild party, anything resembling a protest automatically grants one Constitution protections.
O’Reilly’s loathing of WBC is completely fathomable – Fred Phelps does not preach American exceptionalism. He is not a Fox News Patriot.
The most remarkable aspect of the debate — Megyn Kelly removes her Blonde Halloween Costume on the air.
[...] Why I reluctantly both agree with a Fox News pundit and support … [...]
[...] Baptist Church – As detestable as the WBC is, I think the Supreme Court made the right call, which I’ve argued previously over at the Gotham Skeptic. Alito was the only Justice who sided with the Snyder family against the WBC. Between this decision [...]