Thursday, November 01, 2007

Do hard cases make bad law? Phelps and funerals

A jury in Baltimore has awarded $11 million dollars to the family of a serviceman killed in Iraq whose funeral was picketed by Fred Phelps and his "Westboro Community Baptist Church" (a group consisting largely of Phelps' extended family.) The family alleged that the picketing - which apparently took place 1000 feet from the funeral - constituted invasion of privacy and intentional infliction of emotional distress.

Fred Phelps and the fellow inmates of the Westboro Asylum are an obnoxious bunch. They picketed my church a few years back and they are both disgusting and scary in a Night of the Living Dead type of way.

But is allowing this case to go to a jury and permitting that jury to award damages constitutional? If it is, then could the family of a wounded soldier picket Code Pink protestors for demonstrating outside the Walter Reed Army Medical Center?


Anonymous said...

I had never heard that twist on the Iraq war before but it is just as idiotic as what's her name conspiracy theory of 911.

Could you imagine how many lawsuits there should have been during the Viet Nam war if hurting peoples feelings are a reason to sue.

The legal industry has created an enviroment that its alright to abuse peoples right to pick there pockets. No one wins but the lawyers.

Republicrat said...

anon, I disagree with you on your final point. JUSTICE wins! Just look at the American Trial Lawyers Association . . . er . . . the American Association for Justice. And the Wisconsin Academy of Trial Lawyers, which I hear is changing its name to Advocates for Justice.

Anonymous said...

And, I think the point is a little different than lawyers=bad, a common bit of simplistic nonsense.

The point may be that regardless of how revolting this bunch is, and how strongly we feel about our servicemen and women, this kind of craziness is permitted in a free society.

Of course, given that Rick usually cleaves to the standard, sound-bite, simplistic Repub talking points, it is understandable that you'd miss his dilettantism in meaningful commentary.

Anonymous said...

Anon 8:53 AM -

Lawyers bad = 2
Lawyers good = 1

Do you think that legal representation and perhaps the judicial system in general has improved or diminished since the Viet Nam war?

I think its diminished as have the morals and other values have of this country.

Rick Esenberg said...

I don't think that this can be distilled down to lawyers being good or bad. There were lawyers on both sides of this and, on a listserv on Law & Religion that I subscribe to, lawprofs and practitioners are all over the place.

The question is: what should the law be. Should you be able to sue someone for outrageous speech? If so, when?

Anonymous said...

I do not believe there is competing constitutional issues at play in this case. Does free speech start at 5, 10, 1000 or 10,000 feet from someone? What type of issue can you speak about or protest? Have we crossed the line into tyranny?
Are we going to gag everyone in this country because someones feelings got hurt? There was no libel, there was no panic.
In my view, this was an activist lawyer and judge abusing the privileges of the power society has given them.
The value of free speech is probably the most important is being mocked in this case.

Anonymous said...

From a viewpoint of Posnerian pragmatism, it was right for the trial court to let this claim be tried to punish these jerks, knowing that they would be taught a lesson and that a verdict against them would be overturned on appeal.

Anonymous said...

anon 3:54 -

it's really scary to think there are people that think like you do...even scarier to think that judges and lawyers may do just that...anyone you disagree with becomes a target for a big fee and judicial abuse!

I think you made the case for this being about lawyers being good or bad.