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Westboro Cult Sued for Actions– Not Speech

Posted on April 5 2010 2:06 pm
David Forsmark is the owner and president of Winning Strategies, a full service political consulting firm in Michigan. David has been a regular columnist for Frontpage Magazine since 2006. For 20 years before that, he wrote book, movie and concert reviews as a stringer for the Flint Journal, a midsize daily newspaper.
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Swemson responded to my post about the Westboro Cult which pickets military funerals and my outrage expressed here:

FORSMARK: For a long time, I thought that the actions of the Phelpses constituted the most cold-blooded act of cruelty I had ever seen.  But this week, a federal court of appeals decided that the Phelpses not only have the right to interrupt the funerals of veterans, their litigation costs to protect that right should be paid by Al Snyder, the father of a fallen Marine, Matthew Snyder.

By asking the question this discussion invariably raised by this topic:

SWEMSON: I would like to know what you think about the argument that in order for us to have truly free speech, we must also allow speech that is totally disgusting as well…

The answer is simple, the Phelpses should not be detained, prosecuted,  run off, or sued for the CONTENT of their speech, but for the disruptiveness and venality of their ACTIONS.

Here is the exchange in total:

SWEMSON: David;  I’m certainly not going to defend the revolting display that these low lifes created, but I would like to know what you think about the argument that in order for us to have truly free speech, we must also allow speech that is totally disgusting as well…

I think these people should be prosecuted for invasion of privacy, and willful infliction of mental distress, the latter of which should be easy to prove in this case, as well as a justification of a big award for damages…

FORSMARK: Free speech is not the issue and it is ridiculous to say it is. This interpretation of free speech is more fetishistic than logical.

I would be escorted from a movie theater, not merely for yelling fire, but for yelling ANYTHING. The people who paid for a ticket have a right to their movie. You can be removed from the audience for over-heckling the President. At least he is a public figure who is responsible to you. If I showed up at a Progressive Caucus meeting, and shouted the proceedings down, those protest-loving free speech absolutists would call security.

The Youmans, the Snyders and other military families are NOT PUBLIC FIGURES. They have a right to their ceremony without interruption.

As I said in the article, you can get a ticket in Flushing for playing your stereo too loud? Is that a violation of the First Amendment? What about having a loud party in my backyard at night? Aren’t I allowed to yell and laugh with my friends?

No one is stopping Fred Phelps from yelling all he wants from his pulpit. He can demonstrate in front of the Pentagon or the White House all he likes. But the military families have a right to their event, too.

You are right, they should be prosecuted for disturbing the peace, or whatever ordinance can be found to clear them off the streets. Since they have so many lawyers in the family, it may not stick long, but who cares? It clears the riff-raff from the streets long enough to have a dignified funeral for a hero.

SWEMSON: David; I was under the impression that the appeals court overturned the first decision based on a first amendment rationale. That’s why I asked the question.

On what legal grounds did the father in this case base his complaint?

I’m not an attorney. Clearly the Phelps clan was trying to hurt the family of the fallen Marine, so I thought that a decision based on a charge of “willful infliction of mental distress” would hold up against a “free speech” defense, for the same reason that the court’s punish people who yell “FIRE” in a theater. Please explain.

FORSMARK: From the Citizen Media Law Project:

“Although the record is not entirely clear, it appears that the defendants renewed their motions for summary judgment, and, on October 15, 2007, the Court granted summary judgment for the defendants on the defamation claim and the invasion of privacy claim based on publication of private facts. The court announced its decision in open court, commenting that “These comments — as extreme as they may be — they are taken in terms of religious expression. This is not the type of language that one is going to assume is meant as a statement of fact.” The decision was memorialized in an October 16, 2007 order.

The jury trail comenced on October 22, 2007 to hear the remaining counts of invasion of privacy (intrusion upon seclusion) and intentional infliction of emotional distress.”


The Phelps cult was sued for their actions, not the content of their words. The verdict is almost as much an outrage as the assignment of court costs.

So, readers, what do you think?  By the way, I think this discussion was being held in a similar way on the (weirdly timed?) Easter weekend postings about porn…

I’ve always wondered how hard core pornography can be legally produced in a place where prostitution is illegal.  Is having sex for money legal once it is filmed?  Should hookers just start carrying camcorders?

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