More on Snyder v. Phelps

Wow, this is a pretty tricky one. Here's a good break down of the arguments for and against.

For the prosecution ....

The first is the issue of "vulnerability." American law recognizes certain people and places where special vulnerabilities exist. One's home is such a place, as is one's hospital bed or the waiting area outside an operating room. So too, to some extent, are clinics that provide abortions and other reproductive services. In each of these areas, over-the-top offensive speech from protesters can be regulated when it causes special harm to particularly vulnerable victims.

Is it fair to compare funeral mourners to women seeking abortions or hospital patients receiving treatment? I say yes. Indeed, we see a greater consensus, in the law and in society, about the vulnerability of mourners attending funerals than exists for almost any other group or circumstance.

Which is a pretty good argument. And one that I frankly hadn't considered. I am tentatively willing to agree that there are places reserved as out of bounds in the lives of private individuals However, they need to be defined very, very, very clearly.

For the defense ...

Certainly, speech can give rise to liability for infliction of emotional distress but the court’s task is to find reasons beyond offensive viewpoint for imposing that liability – something such as harassment, threats, fighting words, or intentional lies that damage another’s reputation. The mere fact of protesting doesn’t amount to a threat, harassment, etc. and a court would have to find in any given case that protests have somehow crossed that line.

Again, a good point from the opposite perspective. And a pretty important one. Is the act of protest the gist of the case against the Phelp cult? In what way is this different from burning a flag?

Finally ....

Legal precedent that allows such regulations could be used as a guide in the context of the Phelps case. Judges have drawn a line between picketing of a home (which may be constrained), and general neighborhood picketing on public streets and sidewalks (which remains protected by the First Amendment). An analogous line could be drawn to limit pickets that are close to and focused upon participants in a private funeral or memorial service.

All of the cases I’ve described build upon existing doctrine. An admitted danger is that tort actions by their nature open the door to extensive potential liability, especially when the victim is sympathetic and the perpetrator engages in unpopular provocation. Exposure to unbounded tort liability would inevitably have a “chilling effect” upon speech, and limits would therefore need to be carefully crafted.

That's the problem, really I'd say. What is a private individual? What is a public space?