Snyder v. Phelps (2011)

[Queen Mum Inks.LWC]

As much as I wanted to side with the dissent (and had originally taken that position when the case was first moving through the courts), I side with the majority.  The problem with WBC's actions are that they are distant and removed enough that they cannot fall under IIED.  To hold that they did would be a very broad holding that could have disastrous consequences.

[Queen Mum Inks.LWC]

Question for the dissenters- why? What's your constitutional rationale?

The Framers' intent has obviously never been to protect all forms of speech. Categories of speech have always been held as deserving varying degrees of constitutional protection, and governmental restrictions on time, place and manner of expressions have been deemed legitimate in many cases. It's not really a stretch to consider than in these circumstances, the manner of the speech (violent, unwarranted insults) and its time and place (a person's funeral) are circumstances exceptional enough to warrant restrictions.

But the place wasn't AT the funeral.  It was far enough away that he only saw the tops of signs and didn't even hear the speech until he watched coverage about it on TV after the fact.

[Queen Mum Inks.LWC]

Question for the dissenters- why? What's your constitutional rationale?

The Framers' intent has obviously never been to protect all forms of speech. Categories of speech have always been held as deserving varying degrees of constitutional protection, and governmental restrictions on time, place and manner of expressions have been deemed legitimate in many cases. It's not really a stretch to consider than in these circumstances, the manner of the speech (violent, unwarranted insults) and its time and place (a person's funeral) are circumstances exceptional enough to warrant restrictions.

But the place wasn't AT the funeral.  It was far enough away that he only saw the tops of signs and didn't even hear the speech until he watched coverage about it on TV after the fact.

That does change things a bit. Though I'd still consider the hurtfulness of the speech to be a sufficient justification for a restriction.

But what's your restriction then?  Could someone who is across the country say what WBC said at the protest about a soldier who had died?  If your answer is yes, how do you differentiate that between that instance and this one?  Why does proximity matter if you cannot actually hear the "hurtfulness" of the speech, and can someone who actively sought out to hear what the speech was really sue for IIED?