Things That Should Have Been Posts

[l33tminion]

Snyder v. Phelps: What is it with the recent Court and making really weird decisions on First Amendment grounds? Alito's lone dissent is correct, it's a classic case of unprotected speech mixed with protected speech. The majority argument doesn't suggest that intentional infliction of emotional distress is protected in general, it just makes conclusions on the facts of the case that I find bizarre, e.g. "The 'context' of the speech—its connection with Matthew Snyder’s funeral—cannot by itself transform the nature of Westboro’s speech," (I'd say it obviously does) and, "It cannot be argued that Westboro's use of speech on public issues was in any way contrived to insulate a personal attack on Snyder from liability," (which is in a sense true, but that use is nonetheless intentional).

Japan: Tens of thousands dead, possibly more damage (in financial terms) than has been caused by any previous natural disaster in recorded history. And that's if all the reactors at Fukushima I remain (relatively) contained (the current situation is still a mess, but comparisons to Chernobyl remain misplaced; a little irradiated coolant steam is way less worrying than chunks of reactor core scattered all over your neighborhood). At least the JSDF was prepared for just this sort of disaster (nuclear component aside).

Libya: So we're in another war now. Which is superior to standing idly by while Ghaddafi retakes control by slaughtering half the population of the country, I suppose. Still, It's just the sort of thing that 2007!Obama said was unconstitutional. And it's probably not the sort of thing the country can afford. But what is?

Energy and So On: Oil's at $105. The Japan earthquake wasn't sufficient to collapse Peak Oil Price Spike #2. The destruction of a refinery only brought the price down ~$5-10 for a few days (though that keeps the price of liquid fuel up more than you'd expect from the crude price, for obvious reasons). Civil war in Libya. Civil war in Yemen. The potential of civil war in Bahrain with military intervention from Saudi Arabia. Would predict that an oil price below $140 would set off another collapse, if the assumption is that oil prices were the proximate cause of the last collapse (not necessarily the case). The run-up was quite fast last time after the price got over $100. Also wonder how many US Treasury bonds Japan will sell off to pay for the recovery. That could be a mess, too.

Comments

[krint01.livejournal.com]

I disagree with your first entry: I think that WBC's protesting of funerals, horrible though it is, is absolutely protected free speech. It fails a clear and present danger test (certainly doesn't look like shouting fire in a crowded theatre). I think part of the greatness of the 1st Amendment is that even if just about everyone thinks you have no right to say something, it's still legal. We don't have the 1st Amendment for easy stuff, we have it for the hard stuff, like this. Alito's defense seemed to amount to "tasteless=illegal."

In any case, why do you think it should have been ruled the other way?

[l33tminion]

Did you read the dissent? The opinions are here (PDF). "Clear and present danger" isn't the relevant legal test. It's not a prior restraint case, so it's not about who has "the right to say something", but "the right to not have to compensate the victim of harm you've intentionally caused". And the argument has nothing to do with whether or not the WBC's speech is "tasteless".

Essentially, I agree with Alito:

1. I don't think that all harm caused by speech should be completely shielded from civil law by the First Amendment. US law regarding intentional infliction of emotional distress torts is already quite exacting (as Alito describes).

2. I think the WBC's speech in this case mixed a vicious personal attack on the Snyders with (equally abhorrent but constitutionally protected) speech on issues of public concern. The correct metaphor is as follows (to quote Alito quoting Justice Beryer):

"[S]uppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A's use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected."

(Breyer's concurring opinion essentially agrees with Alito's, except Breyer thinks that Sneyder specifically doesn't meet the standard of an IIED claim because he didn't see the WBC's signs until after the funeral. Which I think is irrelevant, that has nothing to do with the extent of the harm caused or whether that harm was caused intentionally.)