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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, October 06, 2010 ::
    Spent some time today reading briefs and the oral argument transcript in Snyder v. Phelps.

    Phelps and his "Westboro Baptist Church": that's the group -- believed by some Christians to be a cult, in the no-kidding sense -- that, when not carrying "God Hates Fags" signs, likes to hold protests within sight and hearing of military funerals proclaiming to the bereaved parents how glad they are that the servicemember son or daughter is dead, and how their whole family is going to Hell b/c they support the war.

    From their signs, one might learn that when God isn't busy "hating fags," he "loves dead soldiers." Because of their deadness, of course. The Snyders, the funeral of whose 20-year-old Marine son was accosted in this manner, sued the Phelpses and their "church" in tort, alleging "intentional infliction of emotional distress," a tort well-recognized in many states, though not at Common Law. Does such tort liability conflict with the Phelps's First Amendment rights?


    1. Without advocating imminent lawless action, or expressing an opinion on the underlying morality, and out of the hearing of Four or any other number of Knights, I would speculate that American society would be the gainer if Phelps and his followers were taken out by Marine snipers. "You can run, but then you die tired." (Marines who read this are duly reminded that such orders can come only through the chain of command.) (Should such commands be forthcoming, please bring a videocam.)

    2. Any rule allowing the tort of intentional infliction of emotional distress to trench on expressive activity has be formulated carefully. Otherwise, a lot of groups, especially but not exclusively on college campuses, will be shutting down the speech of others, flashing their "emotionally distressed" card. Eugene Volokh's amicus brief in support of Phelps, filed on behalf of that estimable organization FIRE, is right about this -- up to a point.

    3. Otoh, Hustler v. Falwell already goes far enough -- arguably too far -- in raising a high bar against First-Amendment-adverse deployment of the i.i.e.d. tort. If Phelps's position -- or Volokh's, in support -- means that we have to protect Hustler's Falwell cartoon and Phelps's funeral "protests" as the price of actual debate, then we have lost sight of the boundary between debate and sub-articulate braying, and need to rethink it.

    More as it occurs to me.

    :: David M. Wagner 11:07 PM [+] ::

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