The Phelps case is easy because of the unique facts. I don't think that the Code Pink protests come close to matching the Phelps' protests. Several writers in this thread have made the point that there is something special about funerals, and ceremony, and ritual, and grief, and that the law ought to be able to accommodate that special quality of funerals.
It is not enough to suppose that "first amendment principles" (if that means free speech only) trump everything else because then we have privileged every imaginable and horrible type of bullying, harassment or worse. Of course, it is easy enough to say that at some point speech becomes action and therefore subject to regulation and prohibition of a sort not typically associated with "speech." But a more straightforward approach would recognize that some speech needs to be regulated, even prohibited. The only question that remains is where might one draw lines, a concern that is important, but hardly controlling. It is enough to focus on the social, cultural, and psychological reality of funerals. That really cannot be all that difficult to do, can it? Has not the law acquitted itself well if it does that? ________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad & Linda Sent: Friday, November 02, 2007 1:00 PM To: Law & Religion issues for Law Academics Subject: Phelps, IIED, offensiveness, and precedent I've been following this issue with great interest as a conservative evangelical who considers the Phelps gang (I refuse to call them a church) truly evil and indefensible and who (and I realize this is probably not Christ-like love) likes to contemplate Mr. Phelps ultimate appearance before the highest Judge of all. A couple of different questions came to mind as I've been reading the discussion, though. First, a number of people have characterized the protests as offensive, and it's true, they are. However, it seems to me that the fact that they are offensive is not the real issue. I've seen protestors outside Promise Keepers events that I have attended which I found offensive. I've also seen protestors that oppose abortion (which I do, too) that have protested in ways which I thought were offensive. I'm not familiar with the Code Pink protests, but the description of them here sounds like something I would find offensive. There is a difference, though, between that which offends and that which causes pain. If Phelps' band of idiots wants to demonstrate in front of a recruiting center, that's one thing. But when they picket a funeral and intrude on the family's time to bid farewell to their loved ones, that is designed to cause harm and inflict pain on the grieving. That's where the idea of a claim based on IIED has a lot of appeal to me. Isn't it possible to make the legal distinction between offensive and painful, or does that merely invite somebody to make the argument (a baseless one, to my mind) that simply being offended is painful? The other question that comes to mind regards the potential precedent being set here. In my 17 years working at a major university, I saw the assertion made on many occasions that anybody who says that sexual intimacy between two member of the same sex is wrong is both offensive and guilty of hate speech. If this verdict stands (and I do hope there is a way for it to not only stand but be etched in stone), how can it be done without opening a Pandora's box for a lawsuit against any minister who preaches a sermon in which he states that sex outside of a heterosexual marriage is sin, on the grounds that it was deemed offensive and unprotected hate speech? And if so, wouldn't that set a dangerous precedent (i.e., if what Phelps said was offensive and therefore actionable, why shouldn't what Pastor X says be actionable if somebody finds it offensive)? For example, if a practicing homosexual could file a hate speech suit against a minister who preaches that homosexual behavior is sin, what is to stop the practicing adulterer from filing suit using the same rationale against a minister who preaches against adultery? Brad Pardee
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