Why we do not need to restrict free speech to shut down WBC

[goldcatt]

Well said but I trust the jury verdict. They are the voice and interpreters of this tort and did their duty. This is about a family and their grief first and religion, or lack of it as WBC clearly shows, plays no part in it for me.

The only problem with trusting the jury on this one is that they were given a question of law to determine. It was left up to them to decide whether the First Amendment applied. No jury should be deciding questions of law, those are to be decided by the judge prior to giving the case to the jury to determine the questions of fact. So if the jury was in fact instructed incorrectly, chances are they will not come to the correct conclusion. The Jury Instruction given on this clearly put the question of First Amendment protection in their laps.

I still think for this reason alone it will be remanded for a new trial with instructions no matter what the outcome, unless WBC wins outright (probably not) in which case it will be remanded for summary judgment. There wasn't a jury verdict based on the proper findings from the proper source. Nor should the jury be interpreting the nature and scope of the tort - again, that is a question of law. The jury is to be instructed as to the law to be applied to the facts they determine, not the other way around. Determining the law and instructing the jury in that law is what the judge is for.

Respectfully, I have investigated over 1000 cases for trial in 30 years. The jury is charged on the law and in this case material fact was the free speech 1st Amendment protection. That is a jury decision as to the facts:
State v. Howell "The jury must beleft perfectly free in reaching a conclusion upon the testimony introduced, untrammeled by any intimidation from the judge as to whether a certain fact at issue has been proved or not"
Concerning the 1st Amendment Constitutional argument and jury charges by a judge:
Norris v. Clinkscales "A judge violates this provision when he expresses in his charge his own opinion upon the force and effect of the testimony, or any part of it, or intimates his views of the sufficiency or insufficiency of the evidence, in whole or in part.
Under the Constitution the force and effect, or weight and sufficiency, of testimony and facts must be left exclusively to the jury, uninfluenced by any expression or intimation of opinion on The First Amendment or any other Amendment.

Right. The jury has full power over questions of fact, of evidence and testimony, weight and credibility. The judge can't influence them in any way over that.

This is different from questions of law. For example, the jury doesn't decide whether an objection is sustained or overruled. They don't decide what evidence is admissible. They don't decide what the law says, they are told what it says and they are to determine the facts exactly as you have described and apply those to the law as they are instructed by the judge in order to reach a conclusion.

What types of speech are covered by the First Amendment is not a question of fact for a jury to determine. It's settled law that is to be determined by the judge and then the jury instructed as to what speech is and is not protected and under what circumstances. They then go over all the facts, evidence and testimony and decide whether those facts as they determine them fit the law as they were instructed.

 

[Gadawg73]

The only problem with trusting the jury on this one is that they were given a question of law to determine. It was left up to them to decide whether the First Amendment applied. No jury should be deciding questions of law, those are to be decided by the judge prior to giving the case to the jury to determine the questions of fact. So if the jury was in fact instructed incorrectly, chances are they will not come to the correct conclusion. The Jury Instruction given on this clearly put the question of First Amendment protection in their laps.

I still think for this reason alone it will be remanded for a new trial with instructions no matter what the outcome, unless WBC wins outright (probably not) in which case it will be remanded for summary judgment. There wasn't a jury verdict based on the proper findings from the proper source. Nor should the jury be interpreting the nature and scope of the tort - again, that is a question of law. The jury is to be instructed as to the law to be applied to the facts they determine, not the other way around. Determining the law and instructing the jury in that law is what the judge is for.

Respectfully, I have investigated over 1000 cases for trial in 30 years. The jury is charged on the law and in this case material fact was the free speech 1st Amendment protection. That is a jury decision as to the facts:
State v. Howell "The jury must beleft perfectly free in reaching a conclusion upon the testimony introduced, untrammeled by any intimidation from the judge as to whether a certain fact at issue has been proved or not"
Concerning the 1st Amendment Constitutional argument and jury charges by a judge:
Norris v. Clinkscales "A judge violates this provision when he expresses in his charge his own opinion upon the force and effect of the testimony, or any part of it, or intimates his views of the sufficiency or insufficiency of the evidence, in whole or in part.
Under the Constitution the force and effect, or weight and sufficiency, of testimony and facts must be left exclusively to the jury, uninfluenced by any expression or intimation of opinion on The First Amendment or any other Amendment.

Right. The jury has full power over questions of fact, of evidence and testimony, weight and credibility. The judge can't influence them in any way over that.

This is different from questions of law. For example, the jury doesn't decide whether an objection is sustained or overruled. They don't decide what evidence is admissible. They don't decide what the law says, they are told what it says and they are to determine the facts exactly as you have described and apply those to the law as they are instructed by the judge in order to reach a conclusion.

What types of speech are covered by the First Amendment is not a question of fact for a jury to determine. It's settled law that is to be determined by the judge and then the jury instructed as to what speech is and is not protected and under what circumstances. They then go over all the facts, evidence and testimony and decide whether those facts as they determine them fit the law as they were instructed.

We are on the same page. I know the rules of evidence. You fail to understand they were already PAST that when this went totrial.
The jury was charged on the law.
What IS free speech is a judicial decision and that is where they are now,only after appeal. But the Constitution, where the 1st Amendment is, does not allow judcial interpretation AT TRIAL on issues of material facts IN evidence.
That is a jury issue.

 

[goldcatt]

Respectfully, I have investigated over 1000 cases for trial in 30 years. The jury is charged on the law and in this case material fact was the free speech 1st Amendment protection. That is a jury decision as to the facts:
State v. Howell "The jury must beleft perfectly free in reaching a conclusion upon the testimony introduced, untrammeled by any intimidation from the judge as to whether a certain fact at issue has been proved or not"
Concerning the 1st Amendment Constitutional argument and jury charges by a judge:
Norris v. Clinkscales "A judge violates this provision when he expresses in his charge his own opinion upon the force and effect of the testimony, or any part of it, or intimates his views of the sufficiency or insufficiency of the evidence, in whole or in part.
Under the Constitution the force and effect, or weight and sufficiency, of testimony and facts must be left exclusively to the jury, uninfluenced by any expression or intimation of opinion on The First Amendment or any other Amendment.

Right. The jury has full power over questions of fact, of evidence and testimony, weight and credibility. The judge can't influence them in any way over that.

This is different from questions of law. For example, the jury doesn't decide whether an objection is sustained or overruled. They don't decide what evidence is admissible. They don't decide what the law says, they are told what it says and they are to determine the facts exactly as you have described and apply those to the law as they are instructed by the judge in order to reach a conclusion.

What types of speech are covered by the First Amendment is not a question of fact for a jury to determine. It's settled law that is to be determined by the judge and then the jury instructed as to what speech is and is not protected and under what circumstances. They then go over all the facts, evidence and testimony and decide whether those facts as they determine them fit the law as they were instructed.

We are on the same page. I know the rules of evidence. You fail to understand they were already PAST that when this went totrial.
The jury was charged on the law.
What IS free speech is a judicial decision and that is where they are now,only after appeal. But the Constitution, where the 1st Amendment is, does not allow judcial interpretation AT TRIAL on issues of material facts IN evidence.
That is a jury issue.

Did you read Jury Instruction 21 in the 4th Circuit opinion? If not you should. To paraphrase (there's a link in one of my earlier posts on page 2, I think) the jury was simply told the level of protection varies on the type of speech, with no instruction on what the levels are or what types do and do not receive protection.

And yet the level of protection for different types of speech is a matter of law, not fact. So the jury was in fact given a question of law to determine - the judge did not spell out the law but left it up to the jury to decide what is and is not protected speech. See the problem here?

 

[blu]

shows the statists all around the country. fucking emotional pussies

 

[Quantum Windbag]

I think an SC ruling on where speech becomes harassment might be helpful though. I dunno. It's a very, very hard one. I don't want free speech curtailed, but I also loathe the actions of these guys.... and those that harass women going into abortion clinics. There are better ways to speak your mind than to scream like banshees at ordinary people going about their private business.

The case before the court would not allow that sort of finding from the facts, because the family never saw, or heard, Phelps and his church. I would think that harassment has to be immediate before it is actionable.

 

[saveliberty]

They heard it after the fact Quantum. Harm seems to have been established in the lower courts. I think drawing a bystander into a political speech for your benefit and the other private party's harm is the key here.

 

[Quantum Windbag]

I agree with you, Quantum Windbag, and so do most legal commentators I have read. There doesn't seem to be any novel con law question presented on these facts and it's a puzzler why the SCOTUS took the cert.

Have you read the 4th Circuit opinion and the transcript of yesterday's questioning? It seems the Court is looking at whether the 4th Circuit was correct in disregarding the public v. private nature of the individuals and event and focusing on the type of speech instead. There's also a side issue of amicus waivers. Interesting stuff if you haven't looked at it.

The attorney for the church is the daughter of the nut case pastor.
The public v. private nature is THE argument for the church as the ruling in the Jerry Fallwell v. Hustler case is what they are hanging their entire argument on.
How they can claim the father of the soldier is a public figure is absurd. That is the entire case. The father IS NOT a public figure and is a private citizen.
The jury verdict must stand.

I think you have that backward. Snyder is the one pinning his whole case on the public/private division, and the news about that funeral was very public. The family even invited the Patriot Guard, making it even more public.

 

[Quantum Windbag]

WBC is getting sued by a grieving parent. What the fuck law or act (of Congress or of a state) is even implicated?

Freedom of speech has never been understood to restrict the ability of people to sue other people for things like libel and slander. It cannot be properly understood in that way, in fact. Only the so-called "1st Amendment 'absolutists'" think in such ridiculous terms.

So if a citizen can sue another citizen over something said or written, then why can't a citizen sue another citizen for the intentional infliction of emotional injury caused by the outrageous CONDUCT of the party getting sued? If the plaintiff succeeds in the lawsuit at the SCOTUS level, there will have been ZERO violation of the First Amendment's guarantee of freedom of speech.

The fucking scumbags of WBC will merely have had their depraved, disgusting and outrageous behavior properly called into account. They remain perfectly free to express their idiotic beliefs either way.

Fuck them. God hates them. I know. HE told me so.

How much free speech will anyone have if someone can sue anytime they are offended?

 

[Quantum Windbag]

I like how free speech rights all point to protecting objectionable speech. Free Speech was meant to protect a political minority from the majority in getting their message heard. It was not meant to protect pornographers, hate speech against a minority or politically motivated attacks on a small group of private citizens, who are not even part of that discussion.

Some speech is simply unnecessary to the ends of a political debate. I expect that the ruling will fall on the time tested principle of liberty up to the point it displaces the liberty of another.

So, if I print up a political track that talks about sex in a graphic manner, that is fine, but if I leave politics out, is isn't? How exactly is that supposed to work?

 

[Liability]

WBC is getting sued by a grieving parent. What the fuck law or act (of Congress or of a state) is even implicated?

Freedom of speech has never been understood to restrict the ability of people to sue other people for things like libel and slander. It cannot be properly understood in that way, in fact. Only the so-called "1st Amendment 'absolutists'" think in such ridiculous terms.

So if a citizen can sue another citizen over something said or written, then why can't a citizen sue another citizen for the intentional infliction of emotional injury caused by the outrageous CONDUCT of the party getting sued? If the plaintiff succeeds in the lawsuit at the SCOTUS level, there will have been ZERO violation of the First Amendment's guarantee of freedom of speech.

The fucking scumbags of WBC will merely have had their depraved, disgusting and outrageous behavior properly called into account. They remain perfectly free to express their idiotic beliefs either way.

Fuck them. God hates them. I know. HE told me so.

How much free speech will anyone have if someone can sue anytime they are offended?

They can't sue just because they are offended and that was not the basis here.

 

[Quantum Windbag]

They heard it after the fact Quantum. Harm seems to have been established in the lower courts. I think drawing a bystander into a political speech for your benefit and the other private party's harm is the key here.

Harm from deliberately seeking out offensive material. that is like me going in the store and asking for a Hustler, and then demanding my money back because it contained pornography. I don't think that will fly.

 

[saveliberty]

The point was, free speech many times IS protecting something that is objectionable for no other reason than that. I fail to see how political discourse is harmed in its true form by dropping the pretense that objectionable stuff can protect the other.

 

[Quantum Windbag]

WBC is getting sued by a grieving parent. What the fuck law or act (of Congress or of a state) is even implicated?

Freedom of speech has never been understood to restrict the ability of people to sue other people for things like libel and slander. It cannot be properly understood in that way, in fact. Only the so-called "1st Amendment 'absolutists'" think in such ridiculous terms.

So if a citizen can sue another citizen over something said or written, then why can't a citizen sue another citizen for the intentional infliction of emotional injury caused by the outrageous CONDUCT of the party getting sued? If the plaintiff succeeds in the lawsuit at the SCOTUS level, there will have been ZERO violation of the First Amendment's guarantee of freedom of speech.

The fucking scumbags of WBC will merely have had their depraved, disgusting and outrageous behavior properly called into account. They remain perfectly free to express their idiotic beliefs either way.

Fuck them. God hates them. I know. HE told me so.

How much free speech will anyone have if someone can sue anytime they are offended?

They can't sue just because they are offended and that was not the basis here.

Slander is action against against an offensive statement that claims to be true. The statement that God killed Mathew Snyder because he hates fags, and demonstrates that hatred by killing US soldiers who defend fags, is extremely hateful, and demonstratively offensive, but I doubt it meets the legal definition of slander. The jury had the chance to hit back at a bunch of despicable people for a horrific belief, but those beliefs, and their right to express them, is a fundamental right in this country. You may not like it, but it also helps you say the exact same type of thing about Phelps and his church.

 

[Quantum Windbag]

The point was, free speech many times IS protecting something that is objectionable for no other reason than that. I fail to see how political discourse is harmed in its true form by dropping the pretense that objectionable stuff can protect the other.

What pretense?

If Phelps can be sued for saying that God hates fags, wouldn't that mean he can sue you for saying that God actually loves fags?

 

[goldcatt]

The point was, free speech many times IS protecting something that is objectionable for no other reason than that. I fail to see how political discourse is harmed in its true form by dropping the pretense that objectionable stuff can protect the other.

What pretense?

If Phelps can be sued for saying that God hates fags, wouldn't that mean he can sue you for saying that God actually loves fags?

That would be the problem here. New restrictive content neutral rules for claiming Intentional Infliction of Emotional Distress from your own knowing, voluntary perusal of information.

Meaning Phelps could in fact google looking for it and then sue you after he sees you wrote on a website that you oppose WBC and/or Fred Phelps and God loves fags. That's incredibly offensive to his point of view, completely against Phelps' religion, might cause him heartburn or a nightmare or two......and you know the second point in Petitioner's argument is that his freedom of religion should trump others' freedom of speech.

$2.9 million. Like the sound of that?

 

[Quantum Windbag]

The point was, free speech many times IS protecting something that is objectionable for no other reason than that. I fail to see how political discourse is harmed in its true form by dropping the pretense that objectionable stuff can protect the other.

What pretense?

If Phelps can be sued for saying that God hates fags, wouldn't that mean he can sue you for saying that God actually loves fags?

That would be the problem here. New restrictive content neutral rules for claiming Intentional Infliction of Emotional Distress from your own knowing, voluntary perusal of information.

Meaning Phelps could in fact google looking for it and then sue you after he sees you wrote on a website that you oppose WBC and/or Fred Phelps and God loves fags. That's incredibly offensive to his point of view, completely against Phelps' religion, might cause him heartburn or a nightmare or two......and you know the second point in Petitioner's argument is that his freedom of religion should trump others' freedom of speech.

$2.9 million. Like the sound of that?

I have a knack for imagining situations that people think will never happen. They forget that if they change the rules for one side, both sides get to play by the new rules.

 

[Gadawg73]

WBC is getting sued by a grieving parent. What the fuck law or act (of Congress or of a state) is even implicated?

Freedom of speech has never been understood to restrict the ability of people to sue other people for things like libel and slander. It cannot be properly understood in that way, in fact. Only the so-called "1st Amendment 'absolutists'" think in such ridiculous terms.

So if a citizen can sue another citizen over something said or written, then why can't a citizen sue another citizen for the intentional infliction of emotional injury caused by the outrageous CONDUCT of the party getting sued? If the plaintiff succeeds in the lawsuit at the SCOTUS level, there will have been ZERO violation of the First Amendment's guarantee of freedom of speech.

The fucking scumbags of WBC will merely have had their depraved, disgusting and outrageous behavior properly called into account. They remain perfectly free to express their idiotic beliefs either way.

Fuck them. God hates them. I know. HE told me so.

How much free speech will anyone have if someone can sue anytime they are offended?

You can do that now but a jury will not allow damages unless the case is strong.
As this one is because we have a grieving family and the chyrch actions are outrageous and not the norm of just "offending" someone.

 

[goldcatt]

WBC is getting sued by a grieving parent. What the fuck law or act (of Congress or of a state) is even implicated?

Freedom of speech has never been understood to restrict the ability of people to sue other people for things like libel and slander. It cannot be properly understood in that way, in fact. Only the so-called "1st Amendment 'absolutists'" think in such ridiculous terms.

So if a citizen can sue another citizen over something said or written, then why can't a citizen sue another citizen for the intentional infliction of emotional injury caused by the outrageous CONDUCT of the party getting sued? If the plaintiff succeeds in the lawsuit at the SCOTUS level, there will have been ZERO violation of the First Amendment's guarantee of freedom of speech.

The fucking scumbags of WBC will merely have had their depraved, disgusting and outrageous behavior properly called into account. They remain perfectly free to express their idiotic beliefs either way.

Fuck them. God hates them. I know. HE told me so.

How much free speech will anyone have if someone can sue anytime they are offended?

You can do that now but a jury will not allow damages unless the case is strong.
As this one is because we have a grieving family and the chyrch actions are outrageous and not the norm of just "offending" someone.

Problem is the case isn't really about the WBC's actions at the protest, Gadawg. The protest wasn't seen or heard by the family first hand. If it had been, it would be a completely different case with completely different issues.

The problem is this was content on a website. Go look through some of the outrageous, inflammatory posts on this website alone naming people like Fred Phelps himself, or imams at mosques or private individuals named in news articles or blogs and tell me it's different as far as the type of speech being posted. Hyperbolic, insulting, opinionated, derogatory....and currently covered under free speech. But it won't be if IIED is expanded to create liability for this.

 

[saveliberty]

Goldcatt, I do think you have raised some valid concerns here. This court has some interesting minds and a new member. I look forward to a very creative solution, all be it with some trepidation, due to your concerns and mine.

I still come back to something about a public group doing this to a private party without direct involvement in the political debate (speech). Your research is appreciated, as is your insight.

 

[goldcatt]

Goldcatt, I do think you have raised some valid concerns here. This court has some interesting minds and a new member. I look forward to a very creative solution, all be it with some trepidation, due to your concerns and mine.

I still come back to something about a public group doing this to a private party without direct involvement in the political debate (speech). Your research is appreciated, as is your insight.

I understand what you're saying about the public/private divide, and it appears to be the main issue the Court is focusing on - at least if the oral arguments are any indication (and sometimes they surprise you). Kagan is an unknown quantity, but reading the transcripts I'm guessing (and it's only a guess) the initial balance is 3-3 with 3 sitting on the fence - one of those being a "Liberal", one a "Conservative" and one an unknown quantity. But then again, they sometimes surprise you. Who knows?

It'll be interesting to see how this shakes out, and what issues they choose to use to resolve it. Personally I hope they take up the sufficiency of evidence and amicus waiver split the 4th got hung up with sua sponte because of the specific facts here and the narrowness such a ruling would have, but I doubt they'll do it.

Hopefully they'll find even narrower grounds to decide on. But either way because of that rogue jury instruction I do believe it's going to go back to District for retrial - unless they order a summary judgment. I'm not sure I like the blurring of public and private, but at the same time I like the implications of NOT applying Hustler or NYT analysis to this type of communication much less.