It's not often that I start a post with an apology (that usually comes later) but I think I have to this time. Dr. Watson, I'm sorry that I've got your name in the same title as Westboro Baptist. As unpleasant as you've been at times, you're not anywhere close to being in the same league as the Phelps infestation. It's just that I've got a pretty good reason for talking about you and the villainous horde in the same post, and splitting up the names in the title didn't read well. I'm pretty sure that I can keep the two of you out of the same sentence in the remainder of the text.
By any reasonable measure, Fred Phelps and his extended family (who together make up most of the congregation of Westboro Baptist Church) are among the most vile people in the United States. They profess hatred for pretty much anyone who isn't them. They express this hatred frequently, loudly, and with amazing venom at every possible opportunity, and take positive delight in inflicting emotional anguish on already suffering people. I'd call them ghouls, but the comparison really doesn't fit. The Phelps's are delighted by the idea of people burning in hellfire for eternity. The undead merely want to suck out your brains and devour your flesh.
It's very hard to be anything but delighted by the news that something bad has happened to the Westboro Baptist crowd, particularly when it's something that has the potential to put a crimp in their efforts to spread hatred. The news that a jury just slapped them with more than 10 million in actual and punitive damages brought a smile to my lips. But only briefly. Once I got over the first burst of schadenfreude, I found myself wondering if the verdict was really a good thing.
The damages were awarded to the father of a Marine who died in Iraq, who sued Westboro after they protested at his son's funeral. The suit had initially accused the Phelps's with defamation, invasion of privacy, and intentional infliction of emotional distress. The judge dismissed the defamation and some of the invasion of privacy charges on 1st Amendment grounds; the jury awarded the damages for the remaining counts.
There is little doubt that Westboro Baptist invaded the privacy of a grieving family and inflicted emotional harm. Their protests are based around the theme that God is pissed at the US because we are too nice to homosexuals, and that this is why members of the US military are getting blown up in Iraq and Afghanistan. When they protest at a military funeral, they make this point by holding up signs that suggest that the fallen servicemember is burning in hell, and signs that read, "Thank God for IEDs." I have no doubt that seeing such a sign is likely to inflict lasting emotional wounds on most family members subjected to seeing them. At the same time, there is also little doubt that Westboro Baptist was engaging in an act of political speech, and that the 1st Amendment is there to protect such speech even at its most repulsive.
It's clear in this case that the Phelps's are being punished because of what they said, not because of when or where they spoke. I could not imagine a jury reaching a similar verdict if the Phelps's had been holding up signs that said, "Support the Troops" or even "Support the Troops, Bring them Home Now." That makes me very uneasy. I'm not sure that the verdict and damages award is wrong, but I'm not sure that it's right, either.
On the one hand, the things that the Westboro folks say are intended to cause pain. The family that they inflicted this pain on did absolutely nothing to deserve it. Their son was not a public figure before his death, he became one after his death only because Westboro Baptist decided to make him one, and they only made him a public figure because he had the misfortune of being buried at a time and place that was logistically convenient for them.
On the other, their speech - however abhorrent most people find it - is both political and the expression of their religious beliefs. Punishing them because of what they are saying can create a very dangerous precedent. Many protests do hurt people's feelings, not all of the people whose feelings are hurt are public figures, and drawing a line to determine whether political speech is offensive within certain bounds is inherently dangerous.
I honestly don't know where I stand when it comes to the Westboro Baptist lawsuit. But I do know where I stand when it comes to James Watson and what's happened to him since he caught Athlete's Tongue. For those of you who may have forgotten, Dr. Watson made some extraordinarily insulting remarks a couple of weeks ago:
he is "inherently gloomy about the prospect of Africa" because "all our social policies are based on the fact that their intelligence is the same as ours - whereas all the testing says not really", and I know that this "hot potato" is going to be difficult to address. His hope is that everyone is equal, but he counters that "people who have to deal with black employees find this not true."
Since then, Dr. Watson has suffered extensive consequences for what he said. He's lost, among other things, speaking engagements and his job as head of Cold Spring Harbor Labs. And I'm not at all sad about that.
So why the difference? Why am I concerned about freedom of speech for a pack of poisonous degenerates and not about freedom of speech for a Nobel laureate biologist?
Fundamentally, it's about the source of the consequences. In Dr. Watson's case, the consequences are being delivered by individuals and groups who were offended by what he said, and don't want to be associated with someone who says or believes such things. Dr. Watson chose to participate in the marketplace of ideas, and his customers took a look at the merchandise and walked out. In Westboro's case, the consequences are coming through legal action. They're being told that, in addition to any consequences that come as a result of people's distaste for the venom they spew, they're going to suffer legal consequences as well.
There is no doubt that both Watson and Westboro share the same basic rights. There is no doubt that one of those rights is the right to behave in a manner that most people think is vile. There is also no doubt that the right to deal with people who really don't like you and don't want to be seen or associated with you goes right along with the right to be vile. In the case of the Westboro beings, the question is whether there's an edge - a boundary - beyond which speech stops being a means to advance a political or religious purpose and becomes a weapon used primarily to inflict pain on people. I'm not sure that there can be such an edge. But if there is, they have very, very clearly crossed it.
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What is even more troubling to me is that laws had been created regulating how close protesters could be to funerals. This vile group followed all of those laws and yet will be punished through the legal system for expressing a political and religious opinion. What good does having the right to free speech do if political speech can be punished through governmental mechanisms.
I dont' get your distinction between the content of their speech and the context, it seems artificial. Yelling "fire" in the privacy of an acoustically insulated bedroom, or on a Hollywood sound stage would similarly not be prosecuted, but yelling "Fire" in a crowded movie theatre likely would be.
One of the hardest things to remember about the right to freedom of speech is the right of people to say things that I don't agree with, and say it in ways that I don't agree with. But, in order to have the right to say what I want, other people get to disagree.
One of things I have noticed, and maybe it because I live in UK, is that it matters WHERE things are said, not just what is said. No one, as far as I have seen, is saying Phelps does not have the right to say the things he does. Some people are saying he does not have the right to say highly offensive and potentially traumatic things at a funeral. In the UK, and most of the rest of Western Europe Phelps would not be allowed to act as he had. He would not be stopped from saying the things he does entirely but he would be stopped from doing so at a funeral. Those who talk of the right of free speech sometimes seem to get blinkered vision and forget that other human rights also exist, and one of those would cover the right to grieve without being harrassed.
I know that attitudes, and laws, are different in Europe compared with the US but the slippery slope argument does seem to be a bit of a fallacy. It is not apparent that people in Europe (or Western Europe rather) are any more oppressed than their American cousins. Indeed in some respects Europeans would seem to enjoy somewhat more rights and freedoms.
Surely what counts is the combination of what they said and when and where they said it. In a free country one has the right to utter any opinion (excepting such matters as incitement to carry out illegal actions) but that doesn't mean that one has, or should have, the right to utter that opinion in any manner at any time and place.
Anyone who wants to wander around with a placard proclaiming that President Bush is a dangerous idiot gets a thumbs-up from me. But not if they do it in the middle of the motorway during the rush-hour. And not if they do it at, say, the wedding or funeral of a relative of Bush: I would condemn that.
I certainly support the principle of the judgement. What I don't support is the size - $10 million is an insane amount of money for this sort of action.
If this were a case of the government getting an injunction, a prosecution, or any similar thing, I would agree that Westboro church should be immune.
However, I am not aware that free speech equates to speech free from consequences. I should not be allowed to go around the workplace insulting fellow workers without facing consequences, they should not be free to make proclamations about a private citizen and complete stranger without consequences. I'm not the least bit troubled by the fact it was a civil court, civil courts exist for the purpose of resolving such disputes between private citizens. If I stood in front of a house yelling slurs to the inhabitants regularly, would you object to a restraining order being issued against me? Monetary damages is a difference of quantity, not quality.
As for your example of alternate signs, they would not have faced a civil judgment because such signs would not cause harm. You can face a civil judgment for doing things that are legal.
Let's assume Westbro technically obeyed all laws; i.e., stayed the proper distance away and on public land, didn't interfere with the comings and goings of other people, and so on. And, whilst what Westbro says is vile, as is the method by which they say it, let's also assume they have a right to say it, and to protest whilst saying it. (I have no idea if either assumption is correct!)
But is the specific situation Ok? Below are a few admittedly quick thoughts... (And, as is probably obvious, I am not a lawyer, not an expert in civil/legal issues, and not too familiar with Westbro or the lawsuit. But this sort of thing does interest me; e.g., when I lived in the States I was a member of the ACLU.)
There is the shouting "Fire!" example. Naïvely, it's not immediately clear how that applies?
There is the more general issue of context; e.g., the event at which Westbro is protesting (a funeral). That is disturbing. Criminal? Perhaps not. But it's certainly understandable why a civil lawsuit was brought. It seems to me the lawsuit becomes winnable (as has happened) by considering why it's disturbing. One reason, it seems to me, is "(un-necessary) harm".
Causes harm? Yes, albeit emotional and/or mental, rather than physical. The effects seem disproportionate, and potentially quite serious. Also, Westbro are not simple annoying hecklers at a speech, but (as I understand it) organised deliberate intimidation. Criminal? Maybe, the Westbro claims and protests strike me as being (borderline?) abusive. And, naïvely, very definitely actionable (as has happened).
Could Westbro express their point without being so abusive? I presume so. Dr Watson, e.g., expressed his vile point without being abusive or intimidating. And Westbro could have organised a "proper" protest (if the Nazis or KKK can, to use two other vile hate-mongering groups as examples, so can these wackos).
Hence, whilst I'm uncomfortable with how the decision might be interpreted (albeit I'm not sure to what extent, if any, civil lawsuits affects case law), I could be reasonably comfortable with the actual decision. I say "could" because I don't know details (i.e., why the judge and jury reasoned the way they did).
I concur with One Brow. The Phelps gang wasn't prosecuted for a crime, and it would not have been appropriate to charge them with a criminal offense unless they either physically menaced someone or trespassed on private property. It was, however, completely appropriate for the Marine's family to bring their case before a civil court. The family felt that they were being harassed, and the jury concurred.
It's not really all that different in principle from a sexual harassment suit. Telling dirty jokes in the break room may be crude, but it isn't a crime. However, if you torment co-workers with unwanted "humor" to the point where you drive them away in fear or rage, it's liable to cost you or your employer some money.
I would just like to note that freedom of speech exists in both civil and criminal court (I'm not suggesting that anyone said otherwise, but when I see anyone make a distinction between the two in a free speech discussion, I feel obliged to speak up). Even though the plaintiff and defendant were both private entities in the civil trial, the court itself is government, and the punishment is enforced by the full authority of the government, so that's why freedom of speech applies. The court case in the movie "People vs Larry Flynt" was also a civil trial.
The example of standing in front of a house yelling insults is a great comparison, and that's probably one of the things that Phelps and his unsavory lots could get in trouble for that falls outside the bounds of free speech. It seems like harassment and "intentional infliction of emotional distress" might be related concepts.
I am intrigued by Mike's point that the family of the soldier made no attempt to take the public spotlight, and as such did not hold themselves up to public ridicule. I'm reminded again of the Hustler v Falwell case, where the Supreme Court noted that Falwell did present himself on the public stage, and therefore must accept public ridicule as consequence; the interests of Flynt's right to ridicule a public figure outweigh Falwell's right not to be emotionally troubled. But what if you make no attempt at the public spotlight, but something happens to you that creates news coverage? Are you then elevated to the public spotlight (against your will) and therefore subject to public ridicule which is defended by the first amendment (even if that ridicule is emotionally troubling)? I suppose my question is a bit off topic, because it's clear that the soldier's funeral was not a public event until Phelps slithered in and made it so.
Perhaps I could offer my view on how such a situation might be handled in the UK.
Phelp's views are vile but UK law would protect his right to articulate them. However that does not mean he would have the right to articulate them wherever and whenever he wanted to do so. If Phelps wanted protest a funeral in the UK he would most likely be required to do so far enough away from the funeral so that the funeral party are not disturbed by the protest. In all likelihood the police would designate an area that the Phelps could use and police that area to ensure that Phelps did not approach closer to the funeral party and no one tried to interfere with his protest.
That strikes me as being a very sensible way of approaching the issue.
Matt:
We are familiar with such things. The Bush administration has created "free speech zones" where people are allowed to exercise their right to free speech. From all reports, the group in question obeyed the law as to staying on public property and not coming too close to the proceedings.
The simple fact of the matter is, the Westboro church harassed an INDIVIDUAL not a system or political entity. The soldier's family were victims of the the Westboro's Church's harassment, not the United States or President Bush.
They have the right to say what they want, but not to intentionally inflict pain on an inidividual. That is what the ruling is saying. Not that they can't protest and say what they want, but they must follow some decorum and courtesy when doing so.
Were they to hold the same demonstration in front of the White House they would be fine. But not in front of a grieving family, at their son's funeral.
"I would just like to note that freedom of speech exists in both civil and criminal court...."
No, no, no, no. This confusion also exists in Mike's post. First Amendment freedom of speech is a right as against the *government*, not another private entity or person. The government can't keep Goodyear from exercising freedom of speech, but that doesn't mean Goodyear gets to anchor the blimp over your house and send messages by means of hundreds of flashing lights into your bedroom window all night long.
The fact that disputes between private parties are litigated in a government courtroom and enforced if necessary by government action does not convert a civil action into a criminal one, or there would be no civil actions.
So Mike, worry not about the Westford folks' free speech rights, they've got 'em in abundance - you can see them all over YouTube any time you like. What they did was a "private" (civil) wrong, intruding on a father's private grief, and the jury awarded richly deserved civil damages, not a criminal fine. Go ahead and enjoy this result all you like - I certainly am.
The first amendment absolutely does apply to civil matters. As an example, consider the torts of slander and libel (collectively called defamation). In the US those are civil matters. I went to Wikipedia's entry on Defamation and looked for instances of "first amendment"; surely I wouldn't find any if it doesn't apply to civil cases. Here are some I found:
"Defamation law in the United States is much less plaintiff-friendly than its counterparts in European and the Commonwealth countries, due to the enforcement of the First Amendment."
"the Supreme Court suggested that a plaintiff could not win a defamation suit when the statements in question were expressions of opinion rather than fact. In the words of the court, 'under the First Amendment, there is no such thing as a false idea'."
"the Supreme Court also established a mens rea or culpability requirement for defamation; states cannot impose strict liability because that would run afoul of the First Amendment."
In this case against Phelps and his spawn, it appears that the tort claim that had the real teeth was "intentional infliction of emotional distress" (IIED). I think it was applied appropriately in this case. So I agree with Jud's opinion that "the jury awarded richly deserved civil damages."
But even IIED can't trump the first amendment if the two clash. Deciding when the two clash has been a matter for various courts, including the Supreme Court. In Hustler v. Falwell, the Supreme Court found that when the defendant is a well known figure engaged in public discourse, ridicule (such as parodies) that inflicts emotional distress on that public figure is protected speech, therefore the famous pastor could not collect civil damages for IIED because the first amendment trumped it.
But when someone like Phelps inflicts demonstrable emotional damage on people who are minding their own business (especially at a funeral, since actions relating to the recently deceased can be regarded as particularly outrageous), then freedom of speech won't protect that scumbag any more than it would protect him if he yelled "fire" in a crowded theater; not because he has no first amendment protections in civil court, but because the first amendment doesn't apply to what he did.
The court applied the law correctly against Phelps, AND the first amendment never once left his side.
The Phelps are a pretty odious bunch, and it's good to see them slapped.
I wonder if SciBlogs is missing a much greater extremism threat, namely the ongoing campaign of intimidation and terror against neuroscientists at UCLA. This campaign is apparently lead (or at least inspired by) by the extremists extremist and self appointed ALF spokesman Jerry Vlasak.
The most recent victim of the ALF is Prof. Edythe London, who has made the brave decision to make a public stand against the extremists in an article published in the LA Times
http://www.latimes.com/news/opinion/la-oe-london1nov01,0,6486994.story?…
Perhaps the SciBlog community should rally around this courageous Professor!
You know, perhaps they should be allowed to do these things. However, I feel that they got what's coming to them.
I honestly believe that the Phelps gang is actually staging these protests in order to get people to violate their rights, so they can sue them for lots of money. They try and balance so that they're within the law, but make such horrible statements that they can enrage people of low intelligence or impulse control into attacking them, trying to take away their rights, etc.
If you read about Phelps' history, this idea makes a lot of sense. I just feel this is a case of getting a taste of his own medicine.
What the Westboro Church of Hate did was pretty much the same as coming into the family's living room to spew their hatred. That's certainly not the same as publishing an opinion piece in the NY Times, appearing on Fox "News," or ranting from a soapbox in Hyde Park. Their rantings were specifically aimed to dishonor the deceased and cause anguish to his family; merely holding signs saying "Support the troops" would have had about the same effect as putting a magnetic ribbon on a car--a bland message that is easily ignored.
"There is little doubt that Westboro Baptist invaded the privacy of a grieving family...."
I do have some doubt here. Funerals and processions frequently take place in public places. They are advertised in papers, announcing to the public when and where they take place. I would think this would seriously compromise ones claim to privacy.
"It's very hard to be anything but delighted by the news that something bad has happened to the Westboro Baptist crowd, particularly when it's something that has the potential to put a crimp in their efforts to spread hatred."
Now I can hate you for your hatred of a hate group.
How ironic.