Friday, October 26, 2007

Kansas church sued after cheering Marine's death

Let me begin by saying there are few people in this world that I think are more contemptible than Rev. Fred Phelps. There is simply no excuse for his conduct and that of his followers. They are scum.

Having said that I'm mystified by this lawsuit which seems explicitly contrary to basically all (no exaggeration) 1st amendment jurisprudence. In particular, the judge has a somewhat novel view of what speech is outside the protections of the amendment and what standard you use (at least according to this account).

Judge Richard D. Bennett, who is hearing the case, told the nine jurors that there are limits on free speech protection, listing categories that include vulgar, offensive and shocking statements and instructed jurors to decide "whether the defendant's actions would be highly offensive to a reasonable person, whether they were extreme and outrageous and whether these actions were so offensive and shocking as to not be entitled to First Amendment protection," according to the AP.

It's true that the first amendment does not protect all speech. Speech that can cause a chain of events leading to (foreseeable) physical harm to others is not protected. This is the classic shouting "fire" in a crowded theatre scenario. Obscenity too can be restricted if it has prurient interest and violates community standards (ie. whats ok in New York might not be ok in Alabama). This on the other hand is political speech which at least until McCain-Feingold was thought to have fairly robust protection under the amendment. Whether or not the speech is "offensive" or "shocking" is irrelevant. Indeed, there's really not much need to have a constitutional protection for inoffensive speech. After all it's inoffensive.

The protest is I think, clearly protected by not only the speech clause but also very likely, the free exercise clause (given its religious nature) of the 1st amendment. There may be other legal issues (trespass comes to mind) or perhaps the press account has wildly misstated the facts. Based on the article though it's hard to see how this got past summary judgement.

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