The comedians at Westboro Baptist Church have the right to say mean, terrible things about Americans, even while they’re being buried — or so we’ve argued. But what if the Constitution, which bars the government from inhibiting the freedom of expression, does not bar the government from creating a law that lets private citizens do just that?
This is less a thorough legal argument on our part and more of a thought exercise, but let’s roll with attorney Nathan Tucker’s interesting premise.
The father of the fallen marine, Albert Snyder, sued the protesters for, among other things, intentional infliction of emotional distress. The jury awarded Mr. Snyder $5 million in damages, a verdict that was later overturned by the Fourth Circuit Court of Appeals on the grounds that the protesters’ speech was protected by the First Amendment. The First Amendment, however, provides that, “Congress shall make no law ? abridging the freedom of speech.” But there is no federal, state or local law at issue in this case. No one is arguing that the government tried to suppress Mr. Phelps’ speech in any way. This suit is entirely private in nature. It involved the offensive remarks made by one private individual against another private individual at a private event. In a type of personal injury suit, the aggrieved party sued the harasser in court for emotional damages.
How, then, does the First Amendment apply to this case at all? In cases such as New York Times v. Sullivan and Shelley v. Kraemer, the Supreme Court attempted to justify the First Amendment’s reach into private suits by relying on the tenuous argument that, because the power of the state is used to enforce the verdict (through the court system), the government is suppressing the speech at issue.
Full story @ Queerty.com