Balkinization: There Ought to be a Law

There Ought to be a Law

Mark Graber

I just published the following opinion piece in the Baltimore Daily Record. As should be clear, I think the law ought to prevent Fred Phelps from desecrating funerals, but have real concerns about whether the law in Maryland actually did.

There ought to be a law against people like Fred Phelps. His claim that American combat deaths in Iraq are God’s response to America’s tolerance of homosexuals is both offensive and preposterous. His decision to gain publicity for his cause by picketing funerals of Iraq war victims is reprehensible.

Maryland does have a law against picketing funerals — now. But it was enacted only after Fred Phelps and his Kansas-based church chose to desecrate the funeral of Lance Corporal Matthew Snyder in Westminster.

Even without the law, a Maryland jury found that Phelps’ conduct was “highly offensive to a reasonable person,” “extreme or outrageous,” and “intentional or reckless.” Albert Snyder, the dead Marine’s father, received a judgment of $2.9 million in compensatory damages and $8 million in punitive damages, although Phelps and his Westboro Baptist Church may well be judgment-proof.
Before citizens and attorneys begin mutual congratulations, questions should be asked about whether there was a law against Fred Phelps and whether that law is worthy of celebration. American history suggests caution about jury decisions that find hated speakers have violated some law and merit exceptionally severe sanctions.

Juries outraged by speech often make whatever statutory findings are necessary to support a conviction or liability. Juries during World War I and the Red Scare found whatever facts were necessary to convict socialists and other opponents of the military effort. Eugene Debs, the leader of the Socialist Party, was sentenced to 20 years in jail for making an anti-war speech that a jury determined was designed to encourage illegal resistance to the draft.

The jury in the Westboro Baptist Church case may have similarly been more interested in sanctioning an unpopular speaker than determining the precise facts in dispute. Conflicting evidence existed on whether Phelps had intentionally targeted the Snyder family. Determining whether Phelps’ conduct was “highly offensive to a reasonable person” almost calls for the jury to pass judgment on the content of his protest. Whether the same jury in Baltimore would have awarded $10.9 million to the family of a racist bigot whose funeral had been picketed by the local chapter of the NAACP is doubtful.

That $10.9 million ought to be disturbing, even if Phelps did violate the law. One problem with such torts as the intentional infliction of emotional distress is that little basis exists for determining adequate compensatory damages. A high probability exists that any damage award, both compensatory and punitive, will reflect public attitudes toward the political movement, not the actual injury caused. Whether labor picketers at a corporate CEO’s funeral would be sanctioned, and the amount of damages awarded, is more likely to depend on the jury’s attitude toward radical unions than what was actually done and said.

A lesser-known feature of the Supreme Court’s famous decision in New York Times Co. v. Sullivan highlights these problematic features of last week’s verdict against the Westboro Baptist Church. A unanimous court in the New York Times case overturned a defamation verdict against the newspaper and the NAACP on the ground that the plaintiff could recover only if false statements had been made with “actual malice.” False criticisms of public officials, Justice Brennan insisted, were constitutionally protected unless the speaker knew his speech was false or acted with reckless disregard of the truth.

Breaking with normal procedure, the Supreme Court did not remand the decision to the Alabama courts to be retried under the right legal standards. Instead, the justices summarily decreed that the plaintiff could not possibly prove actual malice and dismissed the case. This dismissal was more rooted in a sense that an Alabama jury in the early 1960s was likely to find against the NAACP and New York Times, no matter what the legal standard, than on a fair reading of the evidence. The justices were almost certainly aware that the $500,000 damage award, the largest ever obtained in an Alabama defamation trial, reflected more the political opposition to press coverage of the civil rights movement.

Fred Phelps is no Martin Luther King Jr. Almost every decent impulse in the Westboro Baptist Church case supports Albert Snyder. Still, as the experience of the NAACP and New York Times in the racist South demonstrates, we risk silencing the best social outcasts as well as the worst when we give juries the power to determine whether speech meets constitutional standards and allow them to award unlimited damages. That there ought to be a law against Fred Phelps does not mean that permitting juries to determine liability on the basis of subjective criteria, and determine damages without any standards at all, is the best law.

Posted 2:01 PM by Mark Graber [link]

Comments:

Regardless of whether the speaker is the best or worst "social outcast," lies should not be protected speech under the First Amendment. The New York Times Co. v. Sullivan case is an awful decision which essentially extended First Amendment protection to the defamation of public figures. Privileging lies in not necessary to the protection of free speech, even if the speaker is a "social outcast." In any case, it is doubtful that the NYT precedent applies to the Phelps matter because Lance Corporal Snyder was not a public figure.

While the statute barring the picketing of funerals could be considered a reasonable regulation of the place of public speech, the civil action for intentional infliction of emotional distress is disturbing because it goes to the content of the speech and the content is not a defamation ala the NYT case.

# posted by

Bart DePalma : 4:29 PM

Good post, Mark. Fred Phelps and his ilk are odious but isn't that the idea behind the First Amendment which is to allow such speech. The Baltimore decision that Phelps's conduct was highly offensive is plainly wrong. It was not his conduct that was offensive but his speech. Baut like commenter Bart Depalma I don't see where NYT vs. Sullivan comes into play.

What thoughts this decision against Phelps, and your comments about why the Supreme Court did not remand the Sullivan case, brought to my mind is the value of a jury system itself. I suggest it has served its purpose it is time to retire it. I amuse myself by imagining the Baltimore jurors, mostly working stiffs, deciding whether to give 2.9 million as opposed to 3.2 million in compensatory damage; or 11 million rather than 82 million in punitive damages. Or, in those billion dollar verdict cases deciding between three or four billion.

It is all so surreal. But then again, much of what happens lately in America is such but fortunately almost all of us go about our ways without allowing it to adversely affect us.

# posted by

Matt : 7:11 PM

This post confuses me. If you believe there ought to be a law against what Phelps did, then you don't think what he did is wholly protected by the First Amendment. What then is the problem with a jury finding him liable for a tort?

The answer can't be that juries are not to be trusted to apply the law, because in civil cases, unlike criminal cases, jury verdicts are subject to judicial supervision and reviewable on appeal. Trial courts regularly dismiss cases on summary judgment because no reasonable jury could find liability. Similarly, it does not "break with normal procedure" for an appellate court, such as the Supreme Ct in NYT, to reverse rather than remand an erroneous jury verdict. It happens regularly. Only when courts determines there is room for reasonable disagreement about whether the facts meet the applicable standard does the jury get to decide. And in any event, juries get to resolve factual disputes in statutory as well as common-law cases.

I certainly agree with you that the First Amendment does and should place limits on tort liability, but I do not think those limits are, nor do I see why they should be, greater than the limits on statutory law. If anything, they should be less.

(I do understand your concern about the extravagant damages award, but I expect that will be subject to drastic reduction on appeal on a number of grounds, including the First Amendment.)

# posted by

AF : 8:56 PM

Rationally, I think the decision was probably the wrong one...

BUT, especially given Fred Phelps reputation as a lawyer (He was disbarred for harassing people with frivolous lawsuits and outreagous courtroom behavior) I couldn't help but laugh at the verdict.

# posted by

Unknown : 9:46 PM

Let me join with others in failing to see the relevance of NY Times v. Sullivan. Cpl Snyder is not "public figure," nor has he been defamed. Rev. Phelps has not accused him of anything other than serving in the army of a country that condones homosexuality. This is in the realm of opinion speech, in this case Phelps' opinion that our soldiers are being killed as punishment for our condoning homosexuality. Opinions, however insane or odious, are protected by the First Amendment.

But I do agree that, although the First Amendment protects Phelps and his cult's right to demonstrate their hearts out in public places, it should be legal to keep them from intruding on private matters like funerals.

# posted by

Essayist-Laywer : 9:56 PM

Sullivan's progeny made clear that matters of public interest, and the term is broad enough that it might include war dead (I don't know), should be dealt with similiarly. See, e.g., Time v. Hill (family victims of crime; in fact, if nothing else, we are dealing with public figures now).

But, this is opinion. Hustler v. Falwell would be more relevant. Any law would have to be viewpoint neutral, so focusing on the offensive nature of the opinion is dubious. If some peace group protested, saying a person died for a sinful cause, it can be as troublesome to some people.

Findlaw has a column on this matter btw, referencing Frisby v. Schultz, which involved a viewpoint neutral statute involving protecting the privacy of a home. Funerals can be more public (esp. if held let's say in public areas), but the principle might be applicable.

[Funerals can involve large amounts of space. A law that provides a buffer zone ala abortion clinics and prevents excessive noise and obstructive protests will still allow SOME protests that touch upon funerals in some fashion. Some will be offensive in some fashion.]

As to the damages, I am very dubious about the breadth. Again, the person here apparently honestly believed the opinion. It is not by law "false." The emotional distress is real, but one can imagine similar distress in protests many here would support.

This underlines recent punitive damages caselaw has some bite ... heavy damages for protests really is a dubious matter ESPECIALLY if no clear law was in place against the conduct here.

# posted by

Joe : 10:49 PM

The dead soldier was not a public figure. But the lawsuit asserted the claim of his father, also not a public figure. The harm was not to the dead soldier but to his father. The first amendment does not protect someone falsely yelling fire in a crowded theatre. Castigating homosexuality slurs at a private funeral could be just as devastating to a father in grief. Isn't this how the common law developed?

# posted by

Shag from Brookline : 6:15 AM

The Sullivan standard is not merely "actual malice" but alternatively a "willful disregard for the truth." Here, this church pointedly does not have "actual malice" against the deceased (or more accurately the deceased's family/friends), they most certainly have a "willful disregard" for their random selection of non-public person to denounce.

We would not, by analogy, say that a murder committed on a random basis without actual malice towards the specific victim (a la, Charles Manson) is any less offensive to the public's sense of minimal decency.

# posted by

Unknown : 1:13 PM

I'm not sure what exactly the contours of "public figure" or matter of public concern or whatever the test is, but if the person who died was in some fashion some local celebrity, would the protest be legally acceptable?

Comparing what was done to crying 'fire' falsely etc. seems to me comparing apples and oranges. And, if someone passed a demonstrator on public property near the private funeral, I assume the father would be very distressed too.

Women who have abortions are often in emotional states too, but in some fashion have to pass signs suggesting they are murderers etc.

# posted by

Joe : 1:23 PM

So Joe might not want to be hit upside his head with an apple but might not mind an orange? One thing was not being compared to another, rather contrasted, but each causing harm. Consider the right of privacy as developed (to a limited extent) over recent years in the evolution of common law in some states.

# posted by

Shag from Brookline : 1:42 PM

"Bart" DePalma:

Regardless of whether the speaker is the best or worst "social outcast," lies should not be protected speech under the First Amendment. The New York Times Co. v. Sullivan case is an awful decision which essentially extended First Amendment protection to the defamation of public figures.

Not true. All it did is set the standard of intent. You can still libel a public figure, but it has to be "knowing" falsity (or at the very least with "reckless disregard"). As far as the N.Y. Times goes, all they did was run an ad (and if falsity in ads is sufficient for culpability, many of "Bart"s friends might be in trouble; I'd note that Faux Snooze has been found by a court to be protected in broadcasting falsities in materials they prepared).

The (alleged) errors in Sullivan were mostly harmless if not entirely insignificant, and the lawsuit was intended precisely for political effect, rather than actually because of alleged "damages". Some of the things the Supes struck down were "general damages" and legally presumed injury which did not need proof.

But N.Y. Times v. Sullivan (a unanimous decision) can't be all that awful a case, seeing as it's been extended and upheld by many courts in many decisions since then. As for "intentional infliction of emotional distress", we have now the Hustler v. Falwell case (another unanimous opinion).

Those interested in the legal landscape as of a decade ago with emphasis on the particulars and the political currents flowing in Sullivan should look at Anthony Lewis's great book "Make No Law".

... Privileging lies in not necessary to the protection of free speech, even if the speaker is a "social outcast." ...

"Bart" tries his patented "Reframing™". The problem with the use of the word "lies" is that a "lie" requires that the person making the statement know it to be false. Simple false statements if believed by the speaker don't constitute "malice" per se. And this is one thing that the court recognised (I'd note that defamation law historically could even include true statements; the injury was in the effect produced and even true statements were not protected; fortunately courts now recognise that true statements deserve Constitutional protection; this is an example of "judicial lawmaking" in action and a good thing).

But "Bart" dishonestly pretends that Sullivan struck down all defamation law and made any statement free of legal consequences; this is simply not so.

In any case, it is doubtful that the NYT precedent applies to the Phelps matter because Lance Corporal Snyder was not a public figure.

Who said it did (at least WRT the issue of "public figures")? Why don't you read what Prof. Graber wrote again? I think his point was rather different WRT the "lesser-known feature" of Sullivan (which he explained, I think, in the subsequent paragraph).

While the statute barring the picketing of funerals could be considered a reasonable regulation of the place of public speech, the civil action for intentional infliction of emotional distress is disturbing because it goes to the content of the speech and the content is not a defamation ala the NYT case.

I think what may be more on point is the Falwell case. What result then, counsellor?

After all, no one has asserted that anything Phelps has said is "false". The issue is solely whether he is intentionally trying to hurt people.

Why are you going on this rant about how it's terrible that "lies" are protected (even though they aren't), and then complain about the fact that this case is about IIOED (which is it) and should come out the other way?

IOW, outside of ranting, "Bart", what was your point?

Cheers,

# posted by

Arne Langsetmo : 4:37 PM

Phelps and his counsel will try and make this a free speech case, but I think it's really about association. The family probably cares little about Phelps' message; they are angered that he chose to attend the funeral of their son solely for the purpose of delivering his message. Thus, I think the relevant case is the Boy Scouts case interpreting the 1st amendment to allow a group to exclude people who don't subscribe to the viewpoint of the group.

The family wished to exclude Phelps; Boy Scouts says that they have a 1st amendment right in doing so. Phelps does have a 1st amendment right to demonstrate, just not in such a way as to interfere with the family's rights of association.

A funeral is not just an event. It is a gathering of people who wish to grieve the departed and those who wish to support the bereaved. Demonstrating at a funeral is reprehensible and reasonably likely to cause emotional distress (talk about eggshell plaintiffs).

# posted by

Barton T : 12:43 AM