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Flag Desecration:

I hope to blog in a few days about the $10.9 million intentional infliction of emotional distress / invasion of privacy verdict against the Phelpsians. But for now, here's more on another Phelpsian case:

Security was tight Monday as [Shirley Phelps-Roper] appeared in Sarpy County Court to answer charges that she mutilated a flag and put her child in danger while protesting at the funeral of a Bellevue soldier....

According to Bellevue police, Phelps-Roper had her 10-year-old son stomp on an American flag....

The pretrial hearing centered on a defense motion requesting that the prosecution describe in detail the facts that support the charges, which include disturbing the peace, contributing to the delinquency of a minor and negligent child abuse.

Her attorney, Bassel El-Kasaby, argued that without specifics on what actions broke the law in each case and who was victimized, he can't prepare his case.

"I don't think you can disturb the peace of a police officer or firefighter," he said.

He said it was "unorthodox" and potential "overreaching" by prosecutors to charge Phelps-Roper with contributing to the delinquency of a minor and negligent child abuse....

Deputy Sarpy County Attorney Marc Delman resisted El-Kasaby's request, saying he didn't want to limit the basis for the charges.

Delman told the judge that Phelps-Roper had "cleanly, openly and notoriously" made her son step on an American flag while her church protested at the funeral of William Bailey....

Well, stepping on an American flag is pretty clearly constitutionally protected speech, no less than flying a flag or burning a flag — and we're allowed to speak "cleanly, openly and notoriously," even when others are offended. We're even allowed to teach our children to engage in such speech. (I suppose that if there's some claim that the child's actions would expose him to serious risk of violent retaliation, the matter might be different, though that's far from clear; but in any case I've seen no evidence that the Phelpsians' many foes would beat up a 10-year-old boy for stepping on a flag.) The flag mutilation charge strikes me as obviously unconstitutional, following Johnson; the other charges nearly as obviously so.

In any case, "Sarpy County Judge Todd Hutton told both sides he wants written arguments on whether the prosecution should specify in more detail the actions that support the charges." Thanks to Edward Still for the pointer.

Zacharias (mail):
Not only is it honorable to "desecrate" the sacred Amerikan Flag of the Christianists, but exposing your kid to risk by having carry a Bible or wear a yarmulke should clearly be considered negligent child abuse.
11.6.2007 7:21pm
Ben P (mail):
I couldn't help but laugh at the Intentional Infliction of Emotional Distress verdict against Phelps. Given his reputation as a mean lawyer (he got disbarred for harassing people) I thought it was just deserts.
11.6.2007 7:46pm
Good luck:
Zacharias -- Please don't feed the be trolls. I hope you realize that your comment doesn't even begin to make sense, even as a parody. The people who are charged with desecrating the flag claim to be Christians acting in God's name, and the person defending them (Eugene Volokh) is jewish. I don't even begin to see what you're getting at? That Christians oppose freedom of expression? That Christians aren't tolerant of multiple viewpoints? Given the facts of the case it seems to ring pretty hollow.

(please feel free to delete this if you delete his)
11.6.2007 7:55pm
Anderson (mail):
Understanding the holding of Texas v. Johnson should be on the bench exam for state and federal judges.

"Bench exam? There's no bench exam!"

That too is part of the problem ....
11.6.2007 7:59pm
ReaderY:
I don't particularly like the tactics of the group involved as a personal matter, but I really simply just don't understand how the Constitution can absolutely forbid the use of intentional infliction distress against advocacy speech when the advocate is Larry Flynt, but somehow magically doesn't forbid advocacy speech when the advocates are these individuals.

I just guess I must have never learned about how the scope of the First Amendment's protection of advocacy speech expands and contracts depending on whether or not we happen to like the speakers and what they're saying.

Perhaps Flynt v. Hustler was wrongly decided. But as long as it's on the books, it is absolutely wrong not to apply it in an even-handed manner.
11.6.2007 8:14pm
ReaderY:
Sorry, that was Flynt v. Falwell, must had a Freudian slip or something...
11.6.2007 8:15pm
rlb:
What's really striking is the factual basis for the claim. The father never saw the protesters' signs at the funeral; there were three adults and four minors who were about 1000 feet away from the church. Instead, he heard about it on the news the next day, then looked up the group on the internet, where he saw the signs a couple weeks later.

Ignoring the Constitution for a moment-- is that intentional infliction of emotional distress?
11.6.2007 8:25pm
Ben P (mail):

Constitution can absolutely forbid the use of intentional infliction distress against advocacy speech when the advocate is Larry Flynt, but somehow magically doesn't forbid advocacy speech when the advocates are these individuals.


I'm not really an expert beyond having read that opinion in class(why I'm looking forward to EV's posting) , but it seems to me that if a difference exists it's that the target of Flynt's speech was Jerry Falwell, but the target of the Phelp's speech was the family of a marine who wasn't known except for being a casualty of war.


The supreme court was willing in Gertz to differentiate by the "famousness" of the target of the speech.
11.6.2007 8:35pm
TDPerkins (mail):
Aren't "fighting words" laws consistently upheld? How are Phelp's activities not "fighting words"?

Yours, TDP, ml, msl, &pfpp
11.6.2007 9:30pm
TechieLaw (mail) (www):
Just to make it clear upfront: The Phelps are a disgusting, horrific bunch of trolls.

There. I said it.

Now, can we please not destroy the first amendment in their name?

Part of the problem seems to be that they are detested across the political spectrum. Conservatives hate them for being unpatriotic at military funerals. Liberals hate them for their take on gays.

Therefore, they're the perfect example of people almost universally detested who the first amendment seems designed to protect. Tyranny of the majority and all that.
11.6.2007 9:33pm
TechieLaw (mail) (www):
TDPerkins:

Under certain circumstances, the Phelps' actions could probably be considered "fighting words."

Given that, if they're standing away from the funeral itself and on public land, they have a right to make their (abhorent) point. Under some circumstances, I would even say that they may have the right to police protection -- including a barrier to prevent fighting -- if necessary.

If you allowed speech to be shut down because somebody was offended enough to throw a punch, you wouldn't have much truly novel speech left.
11.6.2007 9:36pm
fishbane (mail):
I hope to blog in a few days about the $10.9 million intentional infliction of emotional distress / invasion of privacy verdict against the Phelpsians.

Perhaps we need a discussion as to whether they should be called Phelpsofascists?

(Note, for them wot need it: this is humor. I'm not supporting these sociopaths. )
11.6.2007 9:46pm
Frog Leg (mail):
Can't the restriction against protesting at funerals be seen as a reasonable time/place restriction? The statute is (facially) neural. The desire to give the grieving peace is a reasonable governmental interest. They can get out their message in all sorts of other forums; just not at a cemetery during a funeral. If they did the same protest in a courtroom or in a church during proceedings the police have every right to kick them out. Why should a funeral be different?
11.6.2007 10:18pm
Eugene Volokh (www):
Frog Leg: The law involved isn't limited to funerals, and its "outrageousness" test invites the jury to consider the content of the speech, not just its location. Plus the speech was a 1000 feet from the church at which the funeral service was held, likely outside any bubble zone that would be permissible even under a narrow content-neutral law -- and pretty far from being "in a courtroom or in a church."
11.6.2007 10:33pm
SomeFella (mail):
I never thought my LRW memo 1 assignment would be terribly useful, but now I know better. There is a four part test for an IIED claim, under California law but I'll assume that the law of the state where this occurred tracks California's.
1) Extreme and outrageous conduct.
2) Intent or reckless disregard for causing IED.
3) Legal causation.
4) Plaintiff's severe emotional distress.

I'd say 1 and 4 are pretty much slam dunks for the plaintiff. Phelp's conduct was such that a reasonable person would think it outrageous- evidenced by everyone's utter contempt for their methods- and the emotional distress is likely very real and very severe.

Where they hit problems is on intent and legal causation. The Phelps need to have targeted the plaintiff specifically or recklessly disregarded their presence when performing their acts. Given that the Phelps were 1000 feet away and I doubt they specifically intended to harm the plaintiff (this might be made difficult if they claimed they wanted to harm the plaintiff), I don't think intent is satisfied. I think their recklessness in acting as they did is mitigated by their distance from the plaintiffs- 1000 feet doesn't seem to place them in the presence of the plaintiff.

The legal causation might be a little easier; they acted and the Plaintiff was hurt because of it, but it's complicated by the plaintiff being harmed after the fact- without the news report and other information he received later the plaintiff may have never known of the incident. That's really a judgment issue there that could swing either way. They're certainly "but for" causes, but proximate cause is dicey.

Now that I've gotten a positive externality from Memo 1, I'll never think of it again.
11.6.2007 10:38pm
SomeFella (mail):
Also, the conduct even if intention must occur in the presence of the plaintiff. Sorry that wasn't clear earlier.
11.6.2007 10:40pm
Ben P (mail):

The Phelps need to have targeted the plaintiff specifically or recklessly disregarded their presence when performing their acts


If I was a jury member I would probably be pretty quick to believe that protesting at someone's dead sons funeral is recklessly disregarding the presence of the parents.
11.6.2007 10:45pm
Mr. X (www):
Do these people understand that the Phelps' primary source of funding is attorney's fees in civil rights lawsuits? Do they have to put on a Bre'r Rabbit mask and yell, "Please don't throw me in that briar patch!" before prosecutors stop bringing facially unconstitutional charges against them?
11.6.2007 11:15pm
Tony Tutins (mail):
Too bad there's no law against teaching your kid to be an evil dipshit; there's some good quotable stuff in Prince v. Massachusetts (guardian of 9 yo girl held to have violated child labor law by permitting her to work "selling" the Watchtower on a public street; as well as furnishing her with the magazines, while knowing that to sell them was unlawful):
"Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves. Massachusetts has determined that an absolute prohibition, though one limited to streets and public places and to the incidental uses proscribed, is necessary to accomplish its legitimate objectives. Its power to attain them is broad enough to reach these peripheral instances in which the parent's supervision may reduce but cannot eliminate entirely the ill effects of the prohibited conduct. We think that with reference to the public proclaiming of religion, upon the streets and in other similar public places, the power of the state to control the conduct of children reaches beyond the scope of its authority over adults, as is true in the case of other freedoms, and the rightful boundary of its power has not been crossed in this case."
11.6.2007 11:42pm
Eugene Volokh (www):
Tony Tutins: I never found Prince particularly persuasive as to the children's free speech rights, given that (unsuccessfully) selling Watchtowers under your guardian's eye on the street corner is hardly "martyrdom." But even if it's right as to a content-neutral restriction on the kinds of speech that children can engage in, and that guardians can teach children to engage in, should it really apply to a viewpoint-based restriction?
11.7.2007 12:48am
Fub:
Mr. X (www) wrote at 11.6.2007 11:15pm:
Do these people understand that the Phelps' primary source of funding is attorney's fees in civil rights lawsuits? Do they have to put on a Bre'r Rabbit mask and yell, "Please don't throw me in that briar patch!" before prosecutors stop bringing facially unconstitutional charges against them?
Deputy county attorney Delman's reluctance to specify particular acts to support the charges is bad enough, but his boss behind the green curtain seems to be leading him down the yellow brick road. From TFA:
Sarpy County Attorney Lee Polikov, however, has said that Phelps-Roper's actions at the Bellevue funeral went beyond civility and common decency and inserted an "overly provocative" message into the emotionally charged funeral.
The First Amendment protects only civility and common decency?

Maybe a mutation of Nifong disease has hit Kansas. This prosecution seems to be all about the narrative, not about the facts or the law.

Phelps and his minions are creeps, but these clowns are actually scary.
11.7.2007 1:05am
John Kindley (mail) (www):
I'm very much looking forward to EV's take on this case. For what it's worth, for now I'll just take the lazy way of commenting by just copying what I wrote over at the Althouse blog on this topic a few days ago.

[In response to another commenter, I wrote:]

Thank you for your thoughtful response to my earlier query. For the record, I'm coming from a pretty radical libertarian perspective, so I'm all about free speech in general, as I assume are most of the others who have nevertheless expressed the belief that Phelps' speech is not protected. Moreover, as an undergraduate I sometimes went with others to the local abortion clinic and tried to (calmly) dissuade and suggest alternatives to women and couples on their way in for an abortion, so I'm sensitive to the slippery slopes involved.

Concerning the non-aggression principle, which is at the heart of libertarianism: It seems to me that spouting outrageous and insulting things at people who don't want to hear it and can't avoid your injurious words can be a form of aggression every bit as coercive as physical aggression. In fact, I'm willing to bet that the mom and dad of that dead soldier would have rather been punched in the gut and slapped in the face rather than be forced to listen to Phelps' garbage during their son's funeral.

I'll have to defer to your seemingly superior knowledge of First Amendment jurisprudence, except that (after a Google search) your description of the "fighting words" doctrine does not seem complete. Here's the language from the seminal case of Chaplinsky v. New Hampshire 315 U.S. 568 (1942):

"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

While the doctrine has been watered down over the years (and I agree that interpeting it too loosely would be highly dangerous to freedom of speech), it's not a dead letter.

Whatever the current First Amendment jurisprudence might be, I think justice requires that it be modified and interpreted so that people are not forced to be subjected to the kind of abuse leveled by Phelps et al. against this family. It seems that the principle that people should not be forced to listen to abhorrent speech could be adhered to and developed without necessarily sliding down any slippery slopes.

If a racist or homophobic bigot stakes out a place in the town square to spew his garbage, he has a right to do that. (Sensible laws will limit the volume of his bullhorn.) People can move quickly on and aren't forced to listen. The bigot doesn't have the right to follow people and force them to listen to his speech. A pervert doesn't have the right to follow a woman down the street and tell her all the things he'd like to do to her, does he? In principle, if I tell someone to stop talking to me personally, they should stop talking to me. Of course, hopefully reason will prevail in setting penalties, if any, for minor infractions. Phelps conduct was not a minor infraction.

In the same way, it doesn't matter if Phelps and his gang "just happened" to show up and stake out a place at the cemetery an hour before the funeral began. A common sense investigation of the circumstances clearly shows that their intent and reason for showing up was to be heard by those in attendance at the funeral. The funeral attendees were then a captive audience. In such circumstances, I don't think it was necessary for any of the mourners to walk over to the protesters and ask them to be quiet in order to infer the unwillingness of the mourners to hear the protesters speech.

Further qualifications are necessary. E.g., the bigot in the town square spouting racist or homophobic speech has no standing to tell a counter-demonstrator or speaker to stop talking to him.

[For some reason, I was under the mistaken impression that the protest took place at an outdoor funeral at a cemetery where the protest could be seen and heard throughout the ceremony, when in fact the funeral took place inside a church and the protestors were 1000 ft. away. I would be inclined to say that people nevertheless have a right to insist that people desist from forcing them to listen to hateful or offensive speech targeted at them, that persisting in such speech would not be protected by the First Amendment, and that this principle could be extended to protests such as this one if the protesters intentionally located themselves in a place where family members on their way to the funeral could not avoid the speech, even from 1000 feet away. I mean, this is harassment, isn't it? A white supremacist doesn't have the right to follow a black person down the street and spew white supremacist philosophy at him after the black person has told him to shut up, does he, even from a "respectful" distance? On the other hand, what would what I'm suggesting imply for pro-life protests outside of abortion clinics that are meant to be heard by women on their way into the clinic for an abortion? Could an exception be meaningfully crafted allowing protests of activity in which the objects of the protest are currently engaged? Such a distinction (or at least one more precise and better formulated) would seem to allow the pro-life abortion clinic protest but not the anti-gay funeral protest at issue in this case.]

[I also posted the following in the comments at the Althouse post:]

I spent well over an hour at Westboro Baptist Church's official website, godhatesfags.com, about six months ago after reading some article or other about them. Pretty sick and demented stuff, but kind of surreal cause most of this clan are pretty intelligent lawyers and the FAQ on the website is not without logic on its way to its damnable and obviously wrong conclusions. Satan himself is generally conceived of as intelligent rather than stupid, and I was struck by the impression that the screeds on this website are possibly, in their perversion and hate, the most satanic things I've ever read.

Also quite eye-opening is the book about Fred Phelps, written by a former reporter at the Topeka Capital-Journal but never published apparently out of fear of lawsuits from Fred Phelps. The book is appropriately titled Addicted to Hate and is posted in its entirety at blank.org/addict. According to two of Phelps' adult sons who left the fold, Phelps regularly beat the holy hell out of all of his 13 kids and his wife. He was permanently disbarred from practicing law because of frivolous and malicious litigation and because he was found to have deliberately lied to the court. It makes for some fascinating and disturbing reading. It's in some respects kind of uplifting because it demonstrates that at least some of his family has been able to break the cycle of hate, move beyond their hellish upbringing, and apparently become very decent Christian parents.

Also surreal is the website of the law firm founded by Phelps, with its bios of the attorney-progeny of Phelps who mainly staff it. The website, at phelpschartered.com/home.htm, comes across as professional and business-like, with nary a word about the outrageous activities in which its members are engaged.
11.7.2007 2:57am
aizheng (mail):
11.7.2007 3:06am
Frater Plotter:
The major distinctions between the Phelps case and Falwell v. Flynt would seem to include:

1. Jerry Falwell was a public figure by his own continued choice, as both a media personality and an outspoken political advocate. The soldiers whose funerals at which the Phelps people hold their "protests" are not public figures.

2. The choice of location. Flynt's alleged infliction of emotional distress was done in a pornographic magazine noted for low humor and parody. The Phelps clan's actions are carried out against funerals, which are not known for humor or parody but rather for the emotional sensitivity and vulnerability of the bereaved. Phelps's actions show greater evidence of calculated, intentional infliction of emotional distress because they go out into the world and seek out victims at their most vulnerable.
11.7.2007 5:31am
David Schwartz (mail):
John Kindley wrote:
"Concerning the non-aggression principle, which is at the heart of libertarianism: It seems to me that spouting outrageous and insulting things at people who don't want to hear it and can't avoid your injurious words can be a form of aggression every bit as coercive as physical aggression. In fact, I'm willing to bet that the mom and dad of that dead soldier would have rather been punched in the gut and slapped in the face rather than be forced to listen to Phelps' garbage during their son's funeral."

There is a critical difference in kind between words someone doesn't want to hear and being punched in the gut. That the victim may subjectively prefer either depending on the degree does not eliminate the difference in kind.

Two harms can be different in kind even though sometimes people might prefer harms of the first kind and sometimes prefer harms of the second kind. The harm of offensive and outrageous speech is fundamentally different in kind from harm caused by physical force.

The differences in degree in each harm cannot be allowed to swamp the difference in kind that is always there. If words can be no different from bullets, then bullets are a rational response to words, just as they are to other bullets.
11.7.2007 5:44am
PersonFromPorlock:
Let me offer a natural-law thought: behavior that naturally elicits a violent response ought, where that response is forbidden by law, itself be forbidden to preserve balance.

Of course, the idea of natural law is pretty abhorrent to the dominant legal culture.
11.7.2007 8:11am
byomtov (mail):
Let me offer a natural-law thought: behavior that naturally elicits a violent response ought, where that response is forbidden by law, itself be forbidden to preserve balance.

Of course, the idea of natural law is pretty abhorrent to the dominant legal culture.


I don't know much about natural law, but if that's an example of its principles I'd say the dominant legal culture is correct.

Should civil rights demonstrations or anti-segregation speeches in the Jim Crow south have been forbidden "to preserve balance?" What nonsense.
11.7.2007 8:45am
Sk (mail):
"Can't the restriction against protesting at funerals be seen as a reasonable time/place restriction? The statute is (facially) neural. The desire to give the grieving peace is a reasonable governmental interest. They can get out their message in all sorts of other forums; just not at a cemetery during a funeral. If they did the same protest in a courtroom or in a church during proceedings the police have every right to kick them out. Why should a funeral be different?"


If the Phelps gang showed up at the Reagan funeral (close enough to interfere with the proceedings), they would have been quitely removed.


It seems to me that this is entirely reasonable. It is also entirely subjective. Which means, that the fact that is isn't being enforced is caused by the subjective opinions of the judiciary-those that interpret what 'reasonable' means in a reasonable time/space restriction. Thus, the answer to your question "Why should a funeral be different?" is simply 'because judges don't think so.' As to the question 'why don't judges think so?', the answer would be, obviously, 'judges don't have children in the military.'

If a draft ever occurs, and judges and legal academics' sons are serving overseas, expect the 'reasonable time/space restriction' to expand. Until then, don't hope for much.

Sk
11.7.2007 10:16am
Aultimer:
I'm a Patriot Guard Rider (biker-types who attempt to shield military families from the likes of Phelps) and I've seen the Westboro nuts face-to-face. In the context of a pre-announced demonstration with local folks supporting the family and PGR in attendance, my gut says there isn't much better application of "fighting words" - in the moment, it truly seems more that they intend to provoke than promote their "message".


EV -
I've seen no evidence that the Phelpsians' many foes would beat up a 10-year-old boy for stepping on a flag.


Trust me, if LOTS of police (and PGR, who often wind up keeping the lid on) weren't around, the kid would have gotten hurt. There's a video floating around of a crowd that got out of hand and went after Phelpians on Maryland's Eastern Shore last summer - their van windows were broken, etc. It's not the only time, either.

Look - Phelps-Roper Jr. is free to step on, burn or poo on the flag at his house, in front of a press conference, or at the White House. These protests are intending to inflict emotional distress, whether it meets the legal definition or not. I won't weep for the 1A if this goes in favor of the family.
11.7.2007 10:31am
TyrantLimaBean:
Do these people understand that the Phelps' primary source of funding is attorney's fees in civil rights lawsuits?


Can you provide more background on this?
11.7.2007 10:40am
PLR:
Even ignoring the likely First Amendment protection for the Phelps clan, the jury verdict seems pretty questionable to me just from the standpoint of tort law. The soldier's father was quoted in USA Today as saying that he didn't really see the protesters during the funeral, he only saw the tops of their signs from a distance. The emotional distress apparently resulted from all the media coverage that followed, and the fact that many family friends saw the protesters and were outraged.
11.7.2007 10:40am
Tony Tutins (mail):
Prof. V: In general, viewpoint restrictions are bad. Prince was only nominally about the child labor laws; JWs distribute the Watchtower and Awake free of charge though they request donations. I see three issues here. (1) It's fairly settled that children's right to free speech is not co-extensive with adults', but how far does it extend? (2) What are the limits of parental control? Parents have the right to send their kids to Catholic school, and to have their kids learn German, but can they really send their kids to Hate school to learn Hate? (3) Is sending your kid to stomp on a flag making him endorse a point of view that is not his own, which is prohibited under the holdings of the Boy Scout case and the St. Patrick's Day case?

Back in the 80's the ACLU fought for the right of the American Nazi Party to march through a village full of Holocaust survivors. But what if the party had sent their youth auxiliary instead of themselves: fifty khaki-clad, wet-combed boys and dirndl-wearing ringleted girls, each proudly bearing a swastika banner? The ACLU fought for the right of a Ukrainian dad to take his son back to live under communism, so presumably they would have supported this exercise of parental control. But I wonder: Can I dress my tots in sheets to burn a cross on my front lawn? What if fires require a burn permit at that time of year? And so on.
11.7.2007 10:51am
Bill Sommerfeld (www):

Do these people understand that the Phelps' primary source of funding is attorney's fees in civil rights lawsuits? Do they have to put on a Bre'r Rabbit mask and yell, "Please don't throw me in that briar patch!" before prosecutors stop bringing facially unconstitutional charges against them?

Indeed. I think the right approach here is to undermine his business model. Don't infringe his right to speak -- just find ways to deny his ilk the ability to earn a living from provoking people into reacting intemperately.
11.7.2007 11:01am
Duncan Frissell (mail):
Such demos wouldn't be a problem in libertarian societies because "no public spaces" means no unauthorized demos.

As for the "contributing to the delinquency of a minor and negligent child abuse" charges. If those stand, a prosecutor could certainly bust the kids featured on this Nickelodeon documentary. Letting your 14-year-old commit criminal trespass for the Revolutionary Communist Party (World Can't Wait) in a shopping mall sounds like contrib to me.
11.7.2007 11:04am
Randy R. (mail):
The so-called rev. Phelps is a nut case. Their hometown newspaper did a long article on the family many years back, and it's pretty clear he is mentally unbalanced, as is several of his children. One child was counting the days until his 18th birthday when he could walk out, which he did, and the rest of the family has nothing but hate for him. Father Phelps would often beat his kids so much he would break their arms and legs.

It is truly weird that a family would be so driven by hatred of gays that it has become their entire life's work.

Regarding the comment that both right and left hate him and his family, that isn't quite the story. Until 9/11, all Phelps &Co, did was picket the funerals of gay men. Although there was an outcry from the left, the right was absolutely silent. (Although there were reports that some anti-gay groups tried to get him to tone it down, because they felt his stridency was hurting their cause more than helping it).

It was only after 9/11 when he started picketing the funerals of soldiers that the right decided he wasn't so good afterall.
11.7.2007 11:24am
Rock Chocklett:
It was only after 9/11 when he started picketing the funerals of soldiers that the right decided he wasn't so good afterall.

Not so. Phelps and his Westboro Baptist Church gained widespread notoriety in 1998, when they protested at Matthew Shepherd's funeral. That same year, they also turned their attention to Rev. Jerry Falwell, who made a conciliatory gesture to a gay former aide and distanced himself from Phelps, calling the Kansas preacher "a loon." Phelps hung onto his contempt for Falwell, even protesting at his funeral this year.
11.7.2007 12:04pm
Doug Sundseth (mail):
"(3) Is sending your kid to stomp on a flag making him endorse a point of view that is not his own, which is prohibited under the holdings of the Boy Scout case and the St. Patrick's Day case?"

Is sending your kid to Sunday School and requiring him to undergo confirmation "making him endorse a point of view that is not his, which is prohibited under the holdings of the Boy Scout case and the St. Patrick's Day case?"

I don't know that the answer to that is obvious in a vacuum, but it's pretty clearly allowed in practice.
11.7.2007 12:21pm
Mr. X (www):
Can you provide more background on this?



Under 42 U.S.C. Sec. 1988, parties whose civil rights have been violated by public officials can receive both damages for the violation as well as attorney's fees for suing the government.

Whenever a state or local prosecutor stops the Westboro Baptist people from picketing, an attorney from Phelps-Chartered sues the official. After the inevitable First Amendment win, Westboro Baptist gets damages and Phelps-Chartered gets attorney's fees. These funds then get used to travel to and organize future protests and sue other local governments.

Careful readers will note that (a) the firm was founded by Fred Phelps, who is also leader of the Westboro Baptist Church, (b) most of the attorneys are family members, and (c) they have a poor command of Latin (veritas means truth, last I checked).

As an aside, Fred Phelps made his bones as a civil rights attorney fighting on behalf of African-Americans during a time when it was a lot harder to win those cases. These local government people end up bringing knives to a gunfight when they try to stop him.
11.7.2007 12:22pm
TyrantLimaBean:
Thanks Mr. X. I was aware of 42 U.S.C. Sec 1988, but not that the Phelps clan had routinely been using this for fundraising.
11.7.2007 12:51pm
Tony Tutins (mail):

Is sending your kid to Sunday School and requiring him to undergo confirmation "making him endorse a point of view that is not his, which is prohibited under the holdings of the Boy Scout case and the St. Patrick's Day case?"

Freedom of speech is one right, while free exercise of religion is another. They only converge for cases like the Jehovah's Witnesses, and perhaps here. Was stomping on a flag required by his religious belief? Even so, a neutral law of general applicability would be constitutional were it not for the speech aspect.
11.7.2007 12:57pm
abu hamza:
well I don't know how the Phelps make their money, but it seems far-fetched to say they make their cake from civil rights attorney fee awards. These lawyers seem like they are a long-way from getting fee applications approved after jury verdicts -- I mean seriously are there juries siding cases in their favor (I don't mean as litigants, I mean as representing plaintiffs?) No jury would ever give a Phelps-progeny lawyer an award -- someone on the jury would find out somehow who they were and poison the whole thing. Do they really represent run-of-the-mill clients and cases? I mean who would hire the "God hates fags" and "die soldier fag" lawyer to handle a will or an eviction?

Re: ways to stop the Phelps. Did you know that Kansas allows a citizens petition to empanel a grand jury? some obscenityindictments were handed down by such a grand jury in Johnson County, KS. Could any charge be brought against them in Kansas? criminal libel for labeling a dead soldier a fag? just thinking out loud here.

what about civil libel suits by the families for their sons being defamed as homosexuals at the funeral? does reputational injury torts survive death?

the old-school resolution to this asshole involves a bearded, angry citizen, a quart of whiskey, and a long-range rifle.
11.7.2007 1:13pm
Doug Sundseth (mail):
"Freedom of speech is one right, while free exercise of religion is another. They only converge for cases like the Jehovah's Witnesses, and perhaps here. Was stomping on a flag required by his religious belief? Even so, a neutral law of general applicability would be constitutional were it not for the speech aspect."

That's why I mentioned "confirmation". At least as I experienced it, confirmation requires that you stand in front of the congregation and affirm your belief. I was quite explicitly not given a choice about whether I would do that; I don't think that's unusual, nor do I think most families would be outraged by that requirement.

I think that falls clearly into coerced speech.

What about a parent requiring a child to offer an apology when the child is clearly not repentant? (To take out the issue of religion that was present in my hypothetical and the JW case previously mentioned.) Does that implicate freedom of speech issues in such a way as to incite judicial notice? I don't think it should, even though it seems clear to me that it would be "making him endorse a point of view that is not his...."

In case it's not clear, I don't think the two hypotheticals I've offered are equivalent, but I think that they lie on a spectrum that includes the Boy Scout case. I think there's a line, but I don't know where to draw it in a principled way. I certainly don't know on which side of the line the JW case, or a case about children brought to war protest marches wearing anti-war protest t-shirts, or children carrying signs at a marijuana-legalization rally must lie.
11.7.2007 2:31pm
Antonio:
Each time I see a Phelps story, I again have to ask if he and his church aren't the ultimate satirists. Their position makes absolutely no sense no matter how you think about it. "God is killing soliders in Iraq because America harbors and tolerates homosexuals." What??? Try to wrap your head around that for two seconds. Exactly, impossible.

Accordingly, as another poster stated, they elicit hate from both sides of the spectrum. By all accounts, this Phelps is a smart guy. I honestly would not be surprised if this weren't all crocked up to not only point out the absurdity of the religious right, but to see just how much nonsense Americans in general will tolerate in the name of the First Amendment.
11.7.2007 3:47pm
Mr. X (www):
Accordingly, as another poster stated, they elicit hate from both sides of the spectrum. By all accounts, this Phelps is a smart guy. I honestly would not be surprised if this weren't all crocked up to not only point out the absurdity of the religious right, but to see just how much nonsense Americans in general will tolerate in the name of the First Amendment.


I sincerely hope that we will tolerate well more nonsense than Fred Phelps is capable of.
11.7.2007 4:08pm
Rock Chocklett:
I honestly would not be surprised if this weren't all crocked up to not only point out the absurdity of the religious right, but to see just how much nonsense Americans in general will tolerate in the name of the First Amendment.

How do the antics of the Phelpsians show that the religious right is absurd?
11.7.2007 5:38pm
Richard Aubrey (mail):
Rock. It's just bullshit. The opportunity arose to hit the religious right and, like a conditioned reflex, Antonio couldn't help himself.
It's said the phelpsters are pretty liberal except for the gay issue. Wouldn't know, myself, but it wouldn't surprise me. They're too vile for conservatives. (Like that, Antonio?)
11.7.2007 9:56pm
流水线 (mail) (www):
11.8.2007 1:49am
NickM (mail) (www):
I think Eugene is incorrect in assuming that the 10-year old wouldn't become a target of personal violence for stomping on a flag. Don't forget that there are plenty of kids on the other side.
A smart prosecutor could likely make a reckless endangerment charge stick.

Nick
11.8.2007 8:37am
Tony Tutins (mail):

confirmation requires that you stand in front of the congregation and affirm your belief. I was quite explicitly not given a choice about whether I would do that

The big difference between this hypo and the ten-year-old flag stomper is the public nature of the forum. A child making a profession of faith in a private forum, like a church filled with co-religionists, their families, and friends, is not a child making a profession of hate in a government-owned public forum, like a sidewalk within sight of mourners going to a soldier's funeral.

Now I wish that Cohen had also had a couple of children to dress in matching "Fuck the draft" jackets.
11.8.2007 10:39am
Randy R. (mail):
Rock: "That same year, they also turned their attention to Rev. Jerry Falwell, who made a conciliatory gesture to a gay former aide and distanced himself from Phelps, calling the Kansas preacher "a loon." Phelps hung onto his contempt for Falwell, even protesting at his funeral this year."

All true. But 'distancing himself' isn't exactly the same as condemnation of picketing funerals. Far from it. The right remained silent during all those years Phelps picketed the funerals of gay men. Not one right winger, religious or not, condemned Phelps for doing so.

After 9/11, when Phelps started picketing US soldiers funerals, THEN they cried foul. But apparently, it wasn't foul when gay men are involved.
11.8.2007 10:53am
Antonio:
No, it wasn't a conditioned reflex at all. While many may fault segments of the religious right for speaking against homosexuality or their seemingly illogical reliance on some parts of Deuteronomy and not others, Phelps and his flock take that rhetoric to such an extreme that it HAS to be a joke. This is why I asked if they aren't the ultimate satirists. I believe that they show the absurdity of (some segments of )the religious right) because if you preach that God hates any group of people long enough, the next "logical" step is stupidity such as this.
11.8.2007 11:18am
Tony Tutins (mail):
Randy, why would people with a particular political philosophy have an obligation to condemn a lone family of kooks, somewhat insanely calling themselves a Baptist Church? And why would this obligation peculiarly belong to the right? I don't remember anyone on the left, religious or not, condemning the lone kook Unabomber -- who actually killed people, not just hurt their feelings. Further, I don't remember anyone on the left condemning the terrorist acts of the Weathermen faction, or the Madison math building bomber.
11.8.2007 11:20am
Richard Aubrey (mail):
Tony.

It's just different.
11.8.2007 1:32pm