Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
A three judge panel of the 4th Circuit Court of Appeals has overturned a $5 million judgment handed down by a jury against Fred Phelps and his church gang of anti-gay lunatics. The plaintiffs in the case were the family of a slain Marine killed in Iraq, at whose funeral the Phelps clan showed up with their usual vile protests.
The jury originally voted to force Phelps to pay $2.9 million in compensatory damages and $8 million in punitive damages, but the judge knocked the punitive damages down to $2.1 million. The appeals court has now reversed that verdict entirely on First Amendment grounds, erasing the judgment. You can see the full ruling here (PDF).
Interestingly, the family was not even aware of the protests during the funeral. The Phelps clan was required to be a certain distance away from the funeral and they complied with those requirements. The parents of the deceased only learned of the protest by watching television after the funeral was over.
The court said:
Even if the language of these signs could reasonably be read to imply an assertion about Snyder or his son, the statements are protected by the Constitution for two additional reasons: they do not assert provable facts about an individual, and they clearly contain imaginative and hyperbolic rhetoric intended to spark debate about issues with which the Defendants are concerned. Whether "God hates" the United States or a particular group, or whether America is "doomed," are matters of purely subjective opinion that cannot be put to objective verification. The statement "Thank God," whether taken as an imperative phrase or an exclamatory expression, is similarly incapable of objective verification. And, as heretofore explained, a reasonable reader would not interpret the signs that could be perceived as including verifiable facts, such as "Fag Troops" and "Priests Rape Boys," as asserting actual facts about Snyder or his son. To the contrary, these latter statements, as well as others in this category, consist of offensive and hyperbolic rhetoric designed to spark controversy and debate. By employing God, the strong verb "hate," and graphic references to terrorist attacks, the Defendants used the sort of "loose, figurative, or hyperbolic language" that seriously negates any impression that the speaker is asserting actual facts about an individual. Accordingly, we are constrained to agree that these signs -- "America is Doomed," "God Hates the USA/Thank God for 9/11," "Pope in Hell," "Fag Troops," "Semper Fi Fags," "Thank God for Dead Soldiers," "Don't Pray for the USA," "Thank God for IEDs," "Priests Rape Boys," and "God Hates Fags" -- are entitled to First Amendment protection.
This is the right result. As vile and hateful as these ideas are, they clearly fall within the First Amendment, as they should. I've said before that if this group were to show up at the funeral of someone i loved saying such things, it might well make me so angry that you'd have to pull me off the nearest one to me. That is an entirely human reaction during a time of great emotion.
But my anger would not justify violence, nor would it justify government action to punish those who have made me angry. No one has a right not to be offended, including me.
Politics
Comments
Although what the Phelps clan do is vile, and dispectable, it is nonetheless protected. Adhering to the spirit of the constitution is something we all should do. Even so it makes one's heart ache when it is used to hurt rather than to heal.
Posted by: Rev JDSpears | October 5, 2009 9:17 AM
I agree. I really sympathize with the family in this case, but if we're going to remain consistent in upholding free speech it means allowing even the most offensive speech.
Posted by: Wes | October 5, 2009 9:18 AM
The Phelps clan was required to be a certain distance away from the funeral and they complied with those requirements.
This is the only factor that makes this ruling even remotely acceptable.
The next question, of course, is, why did this particular group of raving loonies deserve mention on TV? There's plenty of mentally ill homeless people who'd be more entertaining, and more informative. Whose decision was it to give these loons more airtime?
Posted by: Raging Bee | October 5, 2009 9:30 AM
Invoking God means that somebody is not asserting actual facts? Interesting.
Posted by: Gretchen | October 5, 2009 9:40 AM
Time and place restrictions exist so as not to offend certain people.
So, are they unconstitutional, or is it really not true to say that "No one has a right not to be offended"?
Posted by: Gingerbaker | October 5, 2009 9:53 AM
Because Phelps and the WBC are like the little kids who don't know enough to not say in public the things that their parents say in private. The only difference between them and a "Great Silent Majority [1]" is that the GSM are too discreet to say what they really think.
[1] For those who miss the historical reference, the "majority" part is at best questionable.
Posted by: D. C. Sessions | October 5, 2009 9:57 AM
"Whether "God hates" the United States or a particular group, or whether America is "doomed," are matters of purely subjective opinion that cannot be put to objective verification. The statement "Thank God," whether taken as an imperative phrase or an exclamatory expression, is similarly incapable of objective verification."
This quote from the decision sounds the death knell for any attempt by a religious organization to prove that they have objective, demonstrable grounds for promoting their particulr agenda, such as prayer or creationism in schools.
Posted by: OhIoobserver | October 5, 2009 10:14 AM
Although I believe that every member of the Phelps gang should roast in their own version of Hell for their wanton disregard for basic human compassion, the Constitution does protect their right to join in the cult of Fred and to demonstrate their complete and total lack of class, breeding, manners or simple decency.
I also find it very telling that no one gave a damn about what Phelps did when he and his breeder spawn were only protesting at the funerals of gay men. As we faggots are not considered fully human, it was fine (and the media barely noticed) when Phelps showed up to torment our loved ones, but the moment he went after "real men" from the military, the country cared.
Posted by: CPT_Doom | October 5, 2009 10:23 AM
Time and place restrictions exist so as not to offend certain people.
No, they exist to ensure that everyone is more or less equally able to move freely and exercise our rights in public places, and no single group of people get to bully others away from public areas. They exist so that each of us can exercise our rights with minimal infringement of the same rights for others.
Posted by: Raging Bee | October 5, 2009 10:24 AM
Fred Phelps is an egotistical bastard who uses the excuse of a church to do monstrous evil in the world. Would be nice if he could lose his tax exemption. Maybe they could increase the distance he must keep his idiots away from mourners to a mile or so.
He may be within his 1st amendment rights, but his use of them tests them to the limit. Phelps is the kind of person that if he was the last man on earth, you's still stick a shiv in him to shut him up. His god can take him anytime and good riddance.
Posted by: MikeMa | October 5, 2009 10:35 AM
I think it's a strong statistical probability that at some point in time Fred Phelps will insult the wrong person at one of his "hatetests" and get his ass thumped. I certainly wouldn't wish Fred dead, crippled for life and drooling in a wheelchair would be a far better outcome.
Posted by: democommie | October 5, 2009 10:49 AM
@3
That's a pretty weak defense of free speech, if it's even a defense of free speech at all. Are in support of "free speech for our side, but not their side," or are you in support of "ban all speech that someone finds offensive"?Yeah, I know, the fallacy of false alternatives. But really, you come off sounding like someone really willing to limit the applicability of the First Amendment.
Posted by: James Hanley | October 5, 2009 11:15 AM
As a gay man living in Kansas, I've unfortunately had more than my fair share of far too up close and far too personal encounters with the "Christian Love" personified by the Phelps Family Freak Show of Hate. I'll admit that each time that I read yet another story of their antics, I secretly hope that what follows the comma after the name Westboro Baptist Church, has something to do with a bus careening out of control, or more fittingly, a bolt of lighting mysteriously striking from a clear blue sky, but as much as these alleged human beings sicken me on every level, I know deep down that the only way to ensure that my own rights to the freedom of speech and expression are protected from governmental interference, or as in this case, a jury, whose heart was in the right place, but whose collective head wasn't, the rights of the Phelps klan has to be protected as well. I feel for the Snyder family, I really do. Having had the "biblical insight" of Fred and his "delightful" minions shoved in my face on more than one occasion, I realize that just knowing this toxic waste of belief is there when you are trying to grieve, is bad enough, but having the government silence them is not the answer we want or need.
Posted by: Rick | October 5, 2009 11:20 AM
I think the point was that Phelps and co. were informed about where they were legally allowed to be, and they obeyed that law, therefore that should be the end of the discussion regarding whether the law has the right to go after them regardless of the entire free speech issue.
Posted by: Gretchen | October 5, 2009 11:33 AM
@raging bee
They've shown up in my state a half dozen times (including my old high school), it shows up in the news, every one gets bent out of shape, and they hold a counter protest to feel better about themselves. But the Phelps are not relevant. And yet media and Ed keep given them the spotlight.
Posted by: yoshi | October 5, 2009 11:35 AM
Next time, pay attention to who doesn't object.
Posted by: D. C. Sessions | October 5, 2009 12:21 PM
But shouldn't such stupidity and vile behavior be in the spotlight? Look at the damage done to the Republican Party by Palin's wingnut statements. If the media had politely averted their eyes when she couldn't think of a SCOTUS decision, or a book she had read, or a month with a vowel in it, we might have had Herbert Hoover in charge as depression loomed.
Posted by: BaldApe | October 5, 2009 12:25 PM
Yoshi,
They do have some relevance in that they provide a test case for first amendment protection. Ed may have brought them up in the past too, but I think that, in the context of this blog, this was worth mentioning.
Posted by: Escuerd | October 5, 2009 12:33 PM
Time and place restrictions have been historically considered reasonable. The appropriate time and place to harass people mourning their dead loved ones, assuming "nowhere, never" and "carpool lane during rush hour" are not acceptable, is on the other side of the city in the dead of night.
Posted by: Azkyroth | October 5, 2009 1:28 PM
The thing is that the WBC wants people to be upset. Many members of the Phelps clan are trained as lawyers. As soon as they are confronted, they know just what they can sue for. It's how they make money.
Posted by: arrakis | October 5, 2009 1:29 PM
I've said before that if this group were to show up at the funeral of someone i loved saying such things, it might well make me so angry that you'd have to pull me off the nearest one to me. That is an entirely human reaction during a time of great emotion.
If you did that, you'd be doing your society a favor, by enforcing a basic code of civility and, hopefully, deterring public behavior that is totally insane and intended solely to provoke bad feelings. I'd do it and defend my actions in court with my head held high. Enough such ass-kickings, followed by enough bold defenses and acquittals, and the incidents will peter out quickly -- these people's hatred is matched only by their cowardice. Seriously, "freedom of speech" does not mean "freedom from manners" or "freedom from responsibility for the consequences of one's words."
Technically, insulting bikers in public may be protected speech. But it's still a stupid and useless thing to do, and those who choose to do it deserve, and get, very little sympathy when their loudmouthed asses get kicked by the people they're bad-mouthing.
Posted by: Raging Bee | October 5, 2009 1:50 PM
If Phelps did get his ass kicked at one of things, and I was on the jury, I would not vote to convict.
The Phelps' clan pickets funerals of servicemen. If they picketed only the funerals of gays, I wonder how much outrage there would be among the general public.
Posted by: Taz | October 5, 2009 2:03 PM
As heinous as WBC is, it does serve an important purpose. It reminds the larger society that there are hate-filled, frankly evil people out there, and we need to tell them that they are not wanted or needed. Think about the diverse groups of people brought together by their response to Phelps.
I'd like to think that every time WBC comes to town the fence-sitters think "Wow, I guess we haven't made as much progress as I thought, and maybe I should help protect the rights of gays" or "Crap, I don't want to be associated with these wackos, maybe I won't go to that DOM rally tomorrow". I can hope.
Posted by: JustaTech | October 5, 2009 2:05 PM
Taz: the outrage, IIRC, started to grow before they started picketing servicepersons' funerals. I remember a good bit of publicity and outrage when they picketed Matthew Shephard's funeral. In fact, the more "moderate" gay-bashers were trying to wash their hands of Phelps around that time too.
Posted by: Raging Bee | October 5, 2009 2:14 PM
Topics like this deserve to be highlighted because they certainly show who really supports free speech and who doesn't, huh?
Posted by: Gretchen | October 5, 2009 2:50 PM
Raging Bee - I didn't know that - I'm glad to hear it.
Posted by: Taz | October 5, 2009 2:51 PM
In a righteous world, a someone would use an IED on their bus.
Posted by: The Pale Scot | October 5, 2009 3:28 PM
I'm not sure when it happened, but at some point people forgot that there is a price to pay for what you say. I am willing to put my life on the line to defend the freedom of speech. I am also willing to beat the living snot out of one of these guys if they got in my face and said my friend or family deserved to die while I was attending their funeral. There are several biker/veterans groups that have gone out and countered these protests, interposing themselves between the WBC and the mourning families.
Posted by: Laen | October 5, 2009 4:53 PM
I'm glad to see this judgment reversed. Now if only Phelps would likewise reverse his.
Posted by: Abby Normal | October 5, 2009 5:00 PM
Weird, I always thought they "Thank[ed] God For $10.9 Million." Though in a curious departure from their usual rhetoric, they didn't wish it was for $10.9 Billion. How will God punish Westboro for using the godless, Christ-hating, fag-infested courts filled with whited-sepulchre judges to bring about this blasphemous subversion of His will? Mark my words Westboro, you'll eat your babies.
Posted by: meltedrubbersoul | October 5, 2009 5:01 PM
Yes, and that price is public disapproval. Either you're willing to suffer violence in the name of free speech, or willing to inflict violence against those who use it. Pick a side.
Posted by: Gretchen | October 5, 2009 5:04 PM
(Fortunately for them, children don't seem to be in short supply over there).
Posted by: meltedrubbersoul | October 5, 2009 5:09 PM
Social consequences just haven't been the same since honor duals fell out of favor. Though, given my own colorful past, that is probably a good thing. [/teasing]
Posted by: Abby Normal | October 5, 2009 5:13 PM
Gretchen - There's a big difference between an organized attempt to silence someone through intimidation and someone taking a swing at someone in the heat of the moment. Both maybe wrong, and illegal, but only the first has anything to do with free speech.
Posted by: Taz | October 5, 2009 5:14 PM
@Taz:
Wrong. Regardless of whether you're willing to punch someone for making a comment you don't like or have the government imprison that person for you, you are nevertheless an opponent of free speech.
Posted by: Gretchen | October 5, 2009 9:12 PM
So nothing anyone could ever say, not matter how vile, about yourself or your loved ones, could ever make you angry enough to take a swing at them? And it's strictly because you're such a staunch proponent of free speech? I find that hard to believe. It may be true that I could be goaded into swinging where you couldn't, but I think it has more to do with self-control than differing opinions on free-speech rights.
Posted by: Taz | October 5, 2009 9:50 PM
Taz said:
It's quite possible it could. But you know what? I would be wrong in doing so, and would take my punishment. I would not justify my actions by saying that they deserved it, and that if they're going to say such horrible things they have no right to object to my fist meeting their nose. My lack of discipline does not ever compromise someone's right to speak their mind. You cannot simultaneously say that you support the right to free speech and that you are justified in initiating violence against those who exercise that right.
Posted by: Gretchen | October 5, 2009 10:03 PM
Gretchen, that's bullshit. Just because you can't insult me to my face with impunity, doesn't mean you can't trash-talk me elsewhere, or even in a newspaper editorial. If you can't see the difference between not letting yourself be dissed to your face, and opposition to free speech, then you really have no idea what you're talking about.
Bullying, direct verbal abuse, and shouting others down are not "free speech." And manners do not diminish our freedom of speech, they enhance it and keep it from degenerating into violence.
Posted by: Raging Bee | October 5, 2009 10:06 PM
Raging Bee,
Consider the perspective of this conversation. It's not about screaming expletives in someone's face, is it? It's about waving signs outside of the funeral of their loved ones which say hateful things. Yes, they do have the right to do that, and no, you don't have the right to beat the crap out of them for it. You and Taz have expressed opinions to the contrary, which show me that you don't actually support freedom of speech. That's hardly my fault.
Posted by: Gretchen | October 5, 2009 10:14 PM
I think we may need to get someone like kehrsam to weigh in on this. I'm not sure that "free speech" is unlimited, in fact I'm pretty sure it's not--I just don't know what the limits are.
I can say pretty much anything about a public figure that I want to without fear of being sued for libel. I don't think that holds for private citizens, but I honestly don't know the law on it.
I would be with Taz on smacking Fred Phelps, with no compunction, if he showed up at a family funeral I was attending and pulled his schtick. He is certainly entitled to his sick thoughts. He's even entitled to broadcast them. If he shows up at a funeral and invades the privacy of grief stricken family members, then I'd have to pop him.
Posted by: democommie | October 5, 2009 10:16 PM
Not perspective; context. Apologies.
Posted by: Gretchen | October 5, 2009 10:16 PM
Gretchen -
Neither would I. If fact, I explicitly said it would be wrong and illegal in an earlier comment. But I might do it anyway if pushed far enough, and it wouldn't be because I'm an "opponent of free speech", it would be because I lost my head. And I could certainly understand a friend or family member of the deceased losing their head with Phelps. I wouldn't think for a second "wow, that person doesn't believe in free speech".Posted by: Taz | October 5, 2009 10:17 PM
Taz said:
then said:
So which is it?
Posted by: Gretchen | October 5, 2009 10:22 PM
I never said anyone had the right to beat the crap out of Phelps. I said that if they did (and I was thinking of someone very close to the deceased who genuinely lost their head), then I wouldn't vote to convict. The trial would NOT be about Phelps' free speech rights, it would be an assault trial for the family member. I agree with the Phelps judgment being overturned.
Posted by: Taz | October 5, 2009 10:32 PM
Posted by: Taz | October 5, 2009 10:36 PM
In general, blaming the victim is a problem. But I have to agree with Taz that gob-smacking a Phelpsian is understandable, given the provocation. I am a big fan of jury nullification.
Gretchen: Yeoman work in defending the principle of free speech: Well done, and thanks.
democommie: You are correct, free speech is limited in any number of manners: Time and place restrictions, intellectual property rights and defamation are the big issues. Otherwise, I am a free speech absolutist: The single best reaction to bad speech is better speech. I have represented several white supremecists so that really bears repeating: Better speech. In their faces, if possible.
Posted by: kehrsam | October 5, 2009 11:05 PM
kehrsam:
Thanks. I thought it was probably about like you say it is. I think free speech, even pretty heinous stuff, is and should be protected. I also think that right or wrong, I would smack a clown like Phelps and take my chances with a jury.
I'm pretty sure that both Gretchen and Taz would be supportive of free speech in most if not all cases. The pity, of course, is that people like Phelps (and hordes of KKKristians) have zero tolerance for any speech that they consider unpatriotic, offensive or blasphemous. Substitute a group of people waving signs that say "Your son died because of the policies of a murderous cabal of GOP swine, bent on world domination" for the Phelps clan and I would bet the house that there would be some fisticuffs.
Posted by: democommie | October 6, 2009 7:22 AM
Posted by: James Hanley | October 6, 2009 7:55 AM
Here is the problem:
Time and place restrictions are devised so that people will not be offended by something. You can't show people enjoying beer in a TV commercial; you can't have Playboy without a brown paper wrapper; you can't say certain words on the radio or TV, etc.
These laws and regulations, considered constitutional, are in place because some people with enough gumption applied political pressure so that they would not have to see or hear things that offended them.
So, Ed is wrong when he says that "No one has a right not to be offended" because time and place restrictions show that, in fact, people do have a right not to be offended, at least by very specific things.
And if enough people got up enough gumption to wield enough political power, actions such as the WBC could be specifically proscribed by law. And it would be at least as reasonable as the constitutional proscription against saying certain words on TV, would it not?
Posted by: Gingerbaker | October 6, 2009 12:42 PM
And if enough people got up the gumption, then we could prohibit people from burning flags. And if enough people got up gumption, we could prevent people from walking past churches with atheistical signs.
Goddam good idea, Ginger! Where do I sign up to help you destroy the First Amendment?
Posted by: James Hanley | October 6, 2009 12:51 PM
Time and place restrictions are devised so that people will not be offended by something...
GB, I already refuted that statement in comment #9 above. In all of the examples you just cited, the rationale is not merely about "not offending people," it's about not corrupting children by exposing them to adult material or bad behavioral examples. (I'm not saying you should agree with this thinking, I'm just saying that's what the thinking is.)
Furthermore, none of those restrictions have a significant impact on freedom of speech. Adults can still buy porn, beer can still be advertized, and if you can't express your views in public without using any of "those seven words," then you're an idiot.
And if enough people got up enough gumption to wield enough political power, actions such as the WBC could be specifically proscribed by law.
No one here, to my knowledge, is saying the WBC should be silenced BY LAW. I, for one, am saying that if they get in your face, or disrupt your perfectly legal gathering, with their pathological infantile hatefulness, you would be perfectly justified in decking them, and most decent people would sympathize with you, even as they reluctantly admit you have to pay a fine for assault.
We don't have a right not to be offended. But we DO have a right to be able to go about our daily business and not be bullied, intimidated, or stripped of our dignity, without good cause (i.e., being arrested or punished for a crime). Not by creepy stalkers, not by rapists or other bullies, not by muttawa-wannabees, and not by any other gaggle of stupid hateful religious zealots.
Posted by: Raging Bee | October 6, 2009 1:39 PM
No one seems to have mentioned Nate Phelps's blog (a former member of the WBC and son of Fred who is now an atheist).
This church is full of hate inside and outside, rotten all the way through
Posted by: Rebecca | October 7, 2009 4:06 AM
I've been thinking about the subset of people who angrily object to Phelps' hate speech, but, will turn around and try to intimidate women entering abortion clinics by screaming hateful, insane words at women going through an emotional time of their own. Do they experience cognitive dissonance?
Posted by: Gilgamesh | October 8, 2009 7:19 AM