MA father awarded $11 million in lawsuit over his military son's funeral

[Emsworth]

While I abhor the activities of the Westboro Baptist Church, I consider verdicts such as this one monstrous violations of free speech rights. I am not making a constitutional claim here, but rather a normative one. Individuals have, or ought to have, an almost absolute right to protest the policies of the government. That is precisely what the Westboro Baptist Church was doing here: it was protesting the policies of the government with regard to homosexuality, and was claiming that the death of American soldiers was a consequence of those policies. However outlandish and absurd the claim may seem, it is not the government's place to regulate it, whether through legislation or through the court system.

Merely calling something "intentional infliction of emotional distress" does not, I think, dispose of the rights claim here. IIED is very different from libel and slander. Defamatory remarks can be judged by a reasonably objective yardstick. Is the statement one of fact, rather than one of opinion? If so, is it true? If so, is it harmful to the plaintiff's reputation? It is true that these questions are not as precise as, say, a mathematical definition, but nonetheless, as I said, they appear to be reasonably objective. On the other hand, any IIED claim turns entirely on the emotional response of the triers of fact. The term "outrageous" is inherently subjective, susceptible to a far greater extent than most legal terms to the whims and caprices of a particular judge or jury.

As to the constitutional issue: I think that the Supreme Court's decision in Hustler Magazine v. Falwell is dispositive here. Even though a publication may have been sufficiently "outrageous," and even though it met all of the standards for IIED, the Court held that the First Amendment precluded the lawsuit because it was never demonstrated that there was any "false statement of fact which was made with 'actual malice'". Here, the Westboro Baptist Church, while engaged in a protest about public affairs, made no false statements of fact; their statements are at best opinions, and at worst simply unverifiable. Hence, their actions are protected by the First Amendment, and the lawsuit ought to have been dismissed.

[Emsworth]

So is it a statement of fact or one of opinion to be called a jerk? American Heritage Dictionary defines a 'jerk' as 'a foolish, rude, or contemptible person.'

The statement is one of opinion. Therefore, the use of such a term should not be punished as libel or slander.

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Precisely because the bounds of the terms "foolish" and "contemptible" are so vague, using the term does not amount to making a statement of fact. The words inherently carry value judgments. On the other hand, saying "A killed B" or "X has AIDS" are clearly statements of fact rather than statements of opinion.

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The word "outrageous" is inherently subjective. It does not necessarily correspond to any particular chemical pattern. Sure, you might believe that if an action gives rise to a particular chemical pattern, then it is outrageous, but that's just your definition of "outrageous"--there is no reason to believe that your definition is in any sense "correct."

It's not that it's solemn; it's that it's a private event being crashed and ruined by these people.  What gives them the right to do that?

Obviously, if the Westboro Baptists were to trespass on private property, they would be guilty of a crime and a tort, and could be punished for doing so both criminally and civilly. However, just because individuals wish to participate in a "private event" on public property (such as a road), it does not follow that they have the right to exclude other people from that property.

[Emsworth]

Uhh, Hustler v. Falwell lends support to your conclusion only if the soldier in question is such a public figure...

I think that he would qualify as a public figure, insofar as he was an employee of the federal government. In any event, the protests were not directed against him specifically; they were directed against the public policies of the federal government of the United States. He was simply cited as an example.

I don't see why speech needs to be parody to qualify for this higher level of protection.