I Hate To Say It But Westboro Wins

There is nothing I hate worse than agreeing with people that that I think represent the very essence of hatred and what I call The Internet Hate Incubator.  The Westboro Baptist Church wackos hereinafter  are some most vile of idiotic, inbred, cultified nut jobs to walk this earth. Unfortunately, I don’t think they will end up paying the family of Matthew Snyder a dime.

I had the dis-pleasure of interacting with these wackos when they came to Dallas in protest of various Jewish and African-American events and even a Dallas Stars Games because sporting event attendees worship false gods. During the course of my interaction, one member was  good enough to fill me in that all Jews are homosexuals and that the Holocaust was punishment of the Jews.

The thing that struck me the most were the children holding signs that said “God Hates Jews” or  God Hates Fags, God Hates Soldiers etc.  The Westboro Baptist Church is not shy in the publicity mongering.  During this confrontation I engaged one of the children holding a sign that said God Hates Jews. I told him I was Jewish and asked him if he hated me.  He looked up at his father with a confused, scared look. He did not appear to hate me nor did he want to hate me. He just wanted to be a little boy.  He never said a word.  This appeared to the be essence of the Westboro Baptist Church. Children who wanted to be children with adults robbing them of their childhood.

For those unfamiliar with the current controversy, the United States Supreme Court has agreed to hear a case in which there was a 10.9  million dollar verdict, later reduced to 5 millions  entered against the Church for among other things intentional infliction of emotional distress in the picketing the funeral of Matthew Snyder as well as posting a vile essay about Matthew on the Westboro Baptist Church Web site. The verdict was subsequently reversed by the 4th Circuit. The Supreme Court has agreed to hear the case.

The biggest issues here concern the tort of Intentional Infliction of Emotional Distress (IIOED) and whether the 1st Amendment protects the protesters against a verdict under this tort.  The tort of Intentional Infliction of Emotional Distress generally allows recovery when he defendant must act intentionally or recklessly; (2) the defendant’s conduct must be extreme and outrageous; and (3) the conduct must be the cause (4) of severe emotional distress.

The issue here appears to be the relationship between outrageous conduct and pure speech. Can speech in itself  be so outrageous as to constitute IIOED?  If that speech is a matter of public concern,  makes a political statement, or engages in hyperbole can we punish it?   I will not judge the value of the Westboro  speech.  I don’t think it has any but that’s a loser.  The speech at least in the signs was not directed at the Snyder’s. These were the same signs held at other funerals and the facts support a belief system no matter how vile that goes beyond any intent to inflict distress on on the Snyders as individuals.  The court will not put a $ sign on the Westboro speech in terms of its value to society as they do for obscenity.

The IIOED tort here is simply too broad as it applies to speech to withstand constitutional scrutiny. The court has already in numerous cases defined classes of speech that are unprotected. The problem is that there is no class of speech here.  The court needs to define a specific non protected category such as a true threats, fighting words, imminent incitement to violence. These are all categories that the court has held to not have 1st amendment protection.

There are arguments made by those such as Ann Coulter that we are really punishing conduct and not speech and therefore the IIOED tort survives scrutiny.  While I would love for that to be the case, her argument fails on the most basic level. The conduct even taken in its worst light in the totality would not be outrageous without the speech.  Is Ann saying that if the WBCW’s stood silently with no signs outside the funeral at the statutorily prescribed distance that would be outrageous?  It is the speech that is the constitutional linchpin.

Ann’s analogy with regards to Health Care Clinics and the Freedom Of Access To Clinic Entrance (FACE) statute is also misplaced.  Congress has regulated protesting at abortion clinics. Congress has also regulated protesting at Military funerals with the Respect For Fallen Heroes act and many states have enacted similar statutes.  The WBCW’s were in full compliance with the local that statute when they protested.  Is she asking for a total ban on funeral picketing?  What type of content neutral statute is she suggesting?  The courts have been very skeptical of picketing bans that indicate in any way that they are based on content as compared to regulating noise, traffic, thoroughfare obstruction etc.  Is Anne Saying that a special category of speech should be created for funerals?  And what about the next situation we don t like and the next and the next, we will have a 10 volume legal encyclopedia of protected categories. I had to use the phrase slippery slope but…

It is the horrendous signs. It is the vile internet essay.   The court has already set out guidelines and should follow those. Again, true threats, fighting words, imminent incitement of harm to name a few unprotected categories.   The court would need to find that the speech falls into one of these categories.  IIOED is not a category when it comes to a general statement of unprotected speech.  It is a statement without meaning to be left to a case by case basis.  This has become a huge problem with the courts being clogged with such claims.  This is the courts chance to clarify it.

The court should find that the IIOED tort as applied to speech is over-broad and there is no need to create a new category of unprotected speech and uphold the appellate court reversal of the verdict.