Effect Measure

Bad facts make bad law

I’m not sure I completely understand the legal adage, “bad facts make bad law,” but the Supreme Court may be about to give us all an object lesson in its meaning. If I do understand it, is that sometimes there are situations — “bad facts” — that are so unusual or so horrifying or both — that they force jurists to make legal decisions in line with what any normal person would consider to be just but with unintended side effects that make “bad law,” that is, bad legal precedent. An example is a Texas case where a drunk driver hit a car carrying a pregnant woman whose fetus was seriously damaged, was delivered alive by C-section but then died. He was charged with manslaughter in the death of the fetus, but the law required there be the death of “another,” and “another” was defined by law to be “a person” and a person was defined to be “an individual,” and an “individual” was defined by law as “a human being who has been born and is alive”. Since the initial injury was not to something that had not yet been born, this became the basis for the defense’s contention the driver could not be charged with intoxication manslaughter. This was not an abortion case but the circumstances instantly made what was a just decision — that the drunk driver should be punished for the loss of this pregnancy and the damage it did to the family — into one with vast consequences, once the verdict was upheld and became “settled law.”

Now the Supreme Court has agreed to take a case that most certainly has “bad facts,” a clash between the subhuman adherents of the Westboro [Kansas] Baptist Church and the family of a soldier killed in Iraq. If you don’t know anything about Fred Phelps’s Westboro Baptist Church, count yourself lucky. These anti-gay psychopaths travel around the country, picketing the funerals of dead soldiers with signs that blame the deaths of soldiers on what they perceive as a government sanctioned tolerance for homosexuality, causing God to visit all sorts of punishments on the country. Another example of their message of God’s Love is their slogan: ?Thank God for 9/11.″ We’ve dealt with Phelps here before. For most of us, the mental illness of these folks is more of a morbid curiosity item than anything else. Until now. Because these bad facts could well make bad law for all of us:

The case the justices decided to review Monday tests the boundaries of free speech versus freedom of religion ? doctrines both embodied in the First Amendment.

Without comment, the justices agreed to review last year?s federal appellate decision that overturned a $5 million verdict (.pdf) in favor of a Baltimore man who sued the Westboro Baptist Church of Topeka and its pastor, Fred Phelps, in 2006. The father of Marine Lance Cpl. Matthew Snyder was awarded damages for, among other things, invasion of privacy and emotional distress for the events that occurred outside his son?s funeral at a Catholic church in Maryland. (David Kravets, Wired’s Threat Level blog)

The bad facts here have set up a collision between freedom of religion and assembly and freedom of speech and one of them is going to lose. Since I am a fervent free speech advocate, here is how Phelps’s lawyers put the facts into as bad a form as I can imagine:

?How these soldiers are living and dying is a topic of substantial public interest and dialogue, at least nationwide, probably worldwide. The prevailing view is that the soldiers are heroes, and that God is obligated to bless America,? (.pdf) Phelps? lawyers wrote. ?Those views clash with the Bible, in respondents? sincerely held religious opinion, and when these funerals are used to express those viewpoints, respondents feel duty-bound to provide a countervailing message, to wit, if you want God?s blessings, you have to obey him, and if you want the soldiers to stop dying, you have to stop sinning in this nation.?

These sincerely held “facts” about what God wants are about as vile and intentionally hurtful as I can imagine. I don’t think they should be allowed to be used as verbal weapons to grievously hurt others. The fact that the others are the families of soldiers is not relevant. It would be no different if they were the loved ones of AIDS victims or the families of some less respected group than soldiers (even the families of members of the Westboro Baptist Church itself). There is justice in holding these lowlifes accountable for the injury they have done.

But we all have to worry about what unintended legal side effects of these “bad facts” will produce, on freedom of assembly on the one hand and freedom of speech on the other. Sigh.


  1. #1 Phillip IV
    March 9, 2010

    The fact that the others are the families of soldiers is not relevant. It would be no different if they were the loved ones of AIDS victims or the families of some less respected group than soldiers

    Well, it should not have been relevant, but it was. Westboro Baptist Church had picketed at the funerals of gay people (including the victims of hate crimes), AIDS victims and tenuously connected celebrities for years, and not a thing had ever happened to them. Then they switched to soldiers’ funerals and started rubbing salt into the raw wounds of 09/11, and now there was a public outcry – ‘Freedom Riders’ showed up to counter-picket, city councils passed special resolutions forbidding or restricting picketing at soldiers’ funerals, and finally the lawsuit were talking about. (I’m not saying that that outcry wasn’t legitimate, I would just wish it had come sooner.)

    But, at the end of the day, despite how despicable WBC and their message is I think they are – and should be – within their First Amendment rights to state that message in the way they do. I have to hold my nose while doing it, but I hope the SC will rule in their favour.

  2. #2 Dr Denise
    March 9, 2010

    If I am reading this correctly, with a little more work on the precedent here the implication could be that serving in the military as a gay or bisexual person is tantamount to being labeled an accomplice to murder/wrongful death. Free speech laws must address this kind of libel/slander/harrassment/mental cruelty in some way.

    Precedents at the SC level have powerful implications. However, there has to be a lot of collusion on the way up the chain of courts to get a case there. I am shocked the Phelps group has so much support.

  3. #3 SusanC
    March 9, 2010

    With apology to all my American friends – from the God-fearing to the atheists – I have to say as a European, try as I might, I cannot comprehend the cultural context within which such religious fundamentalism (as a social movement, not as a set of private beliefs) can arise. Not that religious fundamentalism in Europe does not exist, far from it, but such fundamentalism exists more in faiths such as Islam that did not evolve in situ, historically, as the Enlightenment that created the modern Europe.

    Sure, I can intellectualize about it (the American version, I mean) by taking into account broader historical contexts, and thus gain some ‘rational’ explanation, but when considered on the background of the sum totality of modern 21st century life in the West, the chasm seems to me as big and deep as the weath gap or knowledge gap. Maybe that last is the key, I don’t know, that it IS a form of knowledge gap. Knowledge of a different form, of course, the ‘knowing’ of something quite distinct from what can be reasoned eg science.

  4. #4 Richard Hendricks
    March 9, 2010

    Where does the guarantee of Freedom of Speech state that you have the right to *force* someone else to listen to your speech? Or that you have the right to speak where ever and when ever you want? Reasonable restrictions are just that, reasonable. We don’t allow shouting “fire” in a movie theater. Allowing for some privacy during a funeral should be no different. (coming from an Atheist)

  5. #5 revere
    March 9, 2010

    Richard: While almost everyone would agree with you, that’s the problem. When it becomes a matter of what is allowed in the law it can have an unintended consequence: the bad facts making bad law. Let’s hope it doesn’t happen here. We’ll see.

  6. #6 Alex
    March 9, 2010

    A depressing and saddening post.

  7. #7 JakeR
    March 9, 2010

    SusanC @ 3:

    With apology to all my American friends . . . such fundamentalism exists more in faiths such as Islam that did not evolve in situ, historically, as the Enlightenment that created the modern Europe.

    Among the earliest European colonies were “nonconformist” religious communities. The U.S. was born politically as an intentional implementation of Enlightenment precepts, particularly those of the rationalist and libertarian French and British philosophers, including John Locke. Explicit at that birth was the principle that the individual’s conscience is sacrosanct. In fact, the earliest and strongest support for minority religious protection came from the minority churches in situ on the frontier, most notably the Baptists and Methodists, so something you’d call “fundamentalism” was present before the nation-state existed. The absence of a state church, the norm at that time, even now, in parts of “Enlightenment Europe,” is what made minority churches, hence fundamentalism, successful here.

    American thinking is that state religions effectively shut off minority religions in Europe and, ironically, caused the rise of non-belief there. Some of us would like to trade your health care systems for our rococo religious environment.

  8. #8 Marc
    March 9, 2010

    @Alex: “A depressing and saddening post.”
    >> Agree. Here’s something even worse, unfortunately:


  9. #9 SusanC
    March 9, 2010


    Thanks, that’s an interesting perspective. I guess the presence of a state church, as you call it, in Europe, probably resulted in much more pragmatism in their evolution (of that state church, I mean) by reason of the need to at least be aligned with the politics of the nation. In the process, everyone ‘suffers’ some loss of innocence, which, depending on where you lie on the spectrum of faith, can be beneficial, or not.

    I’m entirely agnostic.

  10. #10 Alex
    March 9, 2010

    @Marc: Yeah, that I knew. I am now depressed enough to want to be sedated. At least there’s comfort in knowing that other NGOs like Greenpeace have not succumbed.

    @Susan C and JakeR: This is more complicated than you think. Unfortunately, I have to study for a very depressing midterm and the above didn’t help. I really don’t feel like writing an entire paragraph about this, sorry 🙁 However, here’s a start:

    “but such fundamentalism exists more in faiths such as Islam that did not evolve in situ, historically, as the Enlightenment that created the modern Europe”

    This is a form of Eurocentrism (also called European exceptionalism). Also, the Enlightenment did not create “modern Europe”. There were many influences but “modern Europe” was not a direct result of the Enlightenment and did not start with the French Revolution of 1789. Many historians refer to “modern Europe” as the time after the end of the Cold War and the reunification of Germany (1989 – …). Two good books I strongly recommend to learn about European history and politics:

    1) Norman Davies’ Europe: A History.
    2) John Merriman’s A History of Modern Europe.

  11. #11 Paula
    March 9, 2010

    But it seems the justices could simply rule on this with reference to the original tight bases of emotional distress and right to privacy, and avoid the freedom of speech vs. freedom of religion issue altogether. I mean–I’m no attorney but–unless they don’t want to. Meanwhile, one would assume these guys’ God has more interesting things to do.

  12. #12 pft
    March 10, 2010

    The concept that a fetus is not alive is an alien concept brought forth by neo-malthusians who would like to see fewer humans on this planet, or at least the developed world, and so they gave women a legal right to terminate a life.

    I suppose you could argue over when a fetus become more like a human deserving of rights, or less like a fertilized egg deserving of none.

    I don’t object to a woman terminating a pregnancy she does not want. If there is a higher power that is between her and he/she/it. However, if a womans pregnancy is terminated without her will, say by a drunken driver, then that is a wrongful death. And since all humans start off as a fetus, then that fetus is a human life form. To argue otherwise is not logical, or scientific.

    Nothing to do with religion really. The problem is that fundamentalists on both sides, atheists and religious, prevent any reasonable debate on the issue. Both sides have an equal measure of tolerance of other views, somewhere between nil and none.

    As to the history of the church in Europe, I can only say that history has been written by the winners of that battle, from protestantism to atheism, which ultimately gave us the 20th century and it’s wars and communist rule over 1/2 the planet, wiping out well over 100 million religous Christians and Jews in the process.

    If not for the Church and the first Crusades, which gave birth to the “New Europe” of the 12th century, the birth of an age of reason and rationality, Europe would still be in the Dark Ages, and/or speaking Arabic. Not enough space or time to even bother trying to debunk the myths that are the foundations of history of western civilization and science, but reading Atheist Delusions would be a good start for those open to the other side (also Science & Religion 400 BC-1550 AD).

    I have read Dawkins stuff, God Delusions, etc, so step out of the echo chamber if you dare.

  13. #13 Marc
    March 10, 2010

    @pft: Alex pointed out above one example of Eurocentrism. This is another:

    “If not for the Church and the first Crusades, which gave birth to the “New Europe” of the 12th century, the birth of an age of reason and rationality, Europe would still be in the Dark Ages, and/or speaking Arabic.”

    Not only would I suggest reading the books that Alex mentionned but I would also suggest reading Edward Said’s Orientalism. You may not realize how wrong your views are.

    Oh and while neither me nor Alex are religious, we are not big fans of Dawkins. Don’t have time to write more atm. Hope it’s enough. =)

  14. #14 revere
    March 10, 2010

    pft: The issue isn’t whether the fetus is alive or not. Of course it’s “alive.” So is my arm. The question is its legal status under the law for the purposes of defining intoxication manslaughter. Is it a “another,” and does that make it a person, etc. If you run into me while drunk and I lose my arm, that’s not intoxication manslaughter but it is damage you could be charged with causing. These aren’t biological questions (or only biological questions if you insist on that construction) but legal and social questions.

  15. #15 Vern Rutter
    March 10, 2010

    What the WBCs do and say is akin to yelling fire in a crowded theater.

    A “respectful distance” from the bereaved, say across town or in front of their white trash “church” is entirely fair.

  16. #16 Alex
    March 10, 2010

    @Revere: Yeah, you pretty much nailed it.

  17. #17 Douglas
    March 11, 2010

    Regarding Europe’s transition from the Dark Ages:

    You have to credit Genghis Khan and the Mongol Empire, which brought the Modern World to Europe in the 13th century.

    Tolerance of religions, advanced transportation, world’s longest land trade routes, doing away with family-biased governance in favor of merit based systems, are among many examples.

    Columbus was aiming for the riches of Cathay, 100 years after the fall of Kublai Khan’s Yuan (First)Dynasty in China.

    Read Professor Jack Weatherford’s Genghis Khan and the making of the Modern World. Interesting, and clears up commonly held misinformation regarding the Mongols.

  18. #18 Marc
    March 11, 2010

    @Douglas: I understand and I do know about that part of European history. I’m pretty sure Alex does too. Again, this goes back to how one defines “Modern Europe”. But I guarantee you, if Weatherford puts “Modern Europe” in the 13th century, he’s not part of the mainstream in history. Also, saying that Mongols “brought modernity” to Europeans reveals the same biases as saying that Europeans “brought modernity” to Native Americans. Arrogant exceptionalism is always present in imperial cultures. Also, the things you mention were not necessarily brought by Khan. For example, advanced transportation (depending how you define “advanced”) can be taken back to the Romans who were masters of road and bridge building. The vast majority of historians put Early Modern Europe between the end of the 15th century and the end of the 18th century. A good approximation would be: 1492 (Columbus discovers America) to 1789 (first French Revolution). Now that’s Early Modern Europe. Modern Europe is much more debatable but it’s clearly after that. Some historians like Merriman put it right after the French Revolution. Others like Davies put it after the Fall of the Berlin Wall.

  19. #19 anon
    March 13, 2010

    when you put someone at risk, then I think you should be
    judged by the amount of estimated risk that you
    unnecessarily created.
    What the final outcome of that action will be -if any-
    cannot be foreseen. So, even if by luck there is no
    damage, you are still guilty, IMO. OTOH if there is
    death due to unlucky unforeseeable circumstances,
    then it’s not really “manslaughter”

  20. #20 Tasha
    March 30, 2010

    Did you see the latest? The father who sued Phelps is now being ordered to pay Phelps legal fees:


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