It almost never goes well when I disagree with AP, which is direct conflict with when I disagree with Ed and generally get a nice email. But, since they never link to us anyway, what the hell.
I don’t have time to go into the entire Snuder v. Phelps case right now. I agree with AP that this case is unlikely to break our way. I think it should, after having read innumerable briefs, and having attended the oral hearing today, but so it goes.
However, in one of his standard exit questions he posits:
If Phelps owes damages here, would Terry Jones owe damages to a Muslim spectator had he gone through with his stunt? Serious question.
The answer is “no” and the court made that relatively clear today I felt. The first reason is that in the hypothetical, no individual is targeted. However, in the case at bar, two of the signs read “You are going to hell” and “thank God for Dead Soldiers.” Now, each of those could plausibly be found to be directed explicitly at a certain individual, rather than a generic member of some larger collective.
Additionally, it ignores the other evidence like the “Epic” written specifically at Matthew, and his parents. In the Epic there were specific allegations (like that the parents had raised him to commit adultery) whereas no specific person is targeted by a Koran burning.
Further, while “outrageousness” is the standard in an IIED claim, there also has to me some tangible evidence of physical harm. In this case, numerous doctors testified that Mr. Snyder’s health was severely detrimentally effected by this incident. (Technically, “severe emotional harm” but in Snyder’s case it actually had physical ramifications, and Alito seemed to indicate that that portion of the discussion was off the table, so I don’t know much about what is required.)
Lastly, in the Koran burning, there would not be a “captive audience” like it is argued that there is here. As for as I know the right to privacy, which it is argued (plausibly I believe) extends to a private memorial service for a fallen soldier, would not be present in a person happening upon a rally like that. Using the marketplace of ideas analogy, one expects to see such things in the private square, but as I said on a Boston Radio channel today, just because I am thoroughly pissed off about Randy Moss going to MN doesn’t give me the right to invade a sports broadcasters wedding and tell all the guests how much it pisses me off.
So no, I can’t imagine how it would extend to a random person witnessing an event. The whole key to the Phelps case is whether this was targeted at a private individual. The Phelps’ claim that by filing an obituary he voluntarily entered the public sphere.
I think this would be more analogous to the Virginia v. Black cross burning distinction. (Analogous, I don’t mean it is directly ruling or anything.) You can burn a cross, but not if done to intimidate. Same here, I think you could burn a Koran at some function held in the public square, but if you went to someone’s private house during Ramadan and started burning Koran’s on the lawn with signs that said “Allah worshippers will burn in hell” then you would have what you have here.
BTW- I did laugh out loud at this comment from AP:
I look forward to our judiciary trying to articulate the “shoved down people’s throats” standard of free speech.
I don’t know if he heard the arguments, but this is damn near what they did. For some reason Margie Phelps kept arguing that they hadn’t violated Snyder’s rights to privacy, freedom of religion and peaceful assembly unless “we got up in their grills.” She literally used that phrase 4 times. It was disconcerting.
