NationStates Jolt Archive

precisely.



now explain to me the distinction you are drawing such that both of the above statements can coherently stand together.
You mean you want something more coherent than your own remarks above?

OK, once more, simplified, for you:

Chapter 1:

1) Judge reviews law and says that, according to the law, it's not a free speech issue, but is a harrassment (or whatever the complaint was) issue.

2) Judge awards settlement to plaintiff.

3) Case closed. Government involvement over.

Chapter 2:

1) Phelps fails to pay settlement money.

2) Plaintiff decides (maybe) to try to force him to pay and brings a new complaint against him, moving for enforcement of the court's order.

3) Court issues order for enforcement of its previous order, and county sheriffs or other agency garnishes Phelps' income or puts a lien on his property.

4) The government (as represented in its laws and its courts) can do that without any violation of Phelps' civil rights because it was already decided that Phelps' rights were not at issue or at risk by the initial suit.

Apparently, you're taking issue with the idea that a judge can decide that Phelps' rights are not being violated by the suit, but you know what? That's why they call them judges. They are experts in the law and are qualified to decide how the laws affect or are affected by the cases brought before them. And that's how the game is played.

Kat- I thought mods were supposed to act like grownups? My mistake if this is incorrect.


:p Sure. And we're also supposed to obey the Scout Law; To help other people at all times; To keep ourselves physically strong, mentally awake, and morally straight. We're supposed to be TRUSTWORTHY, LOYAL, HELPFUL, FRIENDLY, COURTEOUS, KIND, OBEDIENT, CHEERFUL, THRIFTY, BRAVE, CLEAN and REVERENT.

But it doesn't mean we have to sit back and let other people poke at us without responding.

You'll excuse me if I don't report to the self-flagellation corner.

The government isn't doing anything actually. Civil suits are a bit different from creating a law prohibiting something.

It's not against the law to leave toys scattered about your home. But if a guest sues you after breaking his back due to accidental flight caused by errant skateboard, he could technically win.

Just so. It is not against the law for Phelps to say the things he does in public and hold his public protests. But if his actions cause harm to another citizen and that citizen sues and can prove the harm done to him before a court, then Phelps will have to pay up. The government is not stopping Phelps from speaking, so Phelps' rights are not at issue because they are not at risk. If he doesn't want to get sued, let him speak his mind in public in a way that does not create a way for other individuals to claim they are harmed by him.

For instance, if Phelps published his views in books or papers, no one would be able to sue him for it. If he spoke his mind on television, no individual could legitimately claim to be harrassed by him. But that's not what Phelps does.

A case has whatever merits a judge decides it has, according to the law. In this case, the judge decided that the plaintiff's complaint against Phelps had merit, and the decision was awarded to the plaintiff. In other words, the judge decided that what Phelps was doing was not speech protected in such a way that no one would have any grounds upon which to claim harm and seek redress. There is no point in anyone claiming free speech now, because a court of competent jurisdiction has already declared that this is not a free speech matter.

Just one correction: In this case, it was a jury that decided the matter.

The law already states that actions which essentially "shock the moral conscience" (ie. are absolutely outrageous and inappropriate) and intentionally inflict emotional distress are actionable in civil court. What the jury had to determine was whether or not these actions met that description. They decided in favor of the plaintiff.

The judge simply oversaw the case and explained to the jury what the law was, and what they needed to decide.

For instance, if Phelps published his views in books or papers, no one would be able to sue him for it. If he spoke his mind on television, no individual could legitimately claim to be harrassed by him. But that's not what Phelps does.

Indeed. Phelps intentionally picks an emotional situation and targets his speech at particular people. He cannot argue that he does not intend to inflict emotional damage, as that is quite clearly the whole point of his method. He is intentionally outrageous and beyond the pale. He has intentionally stepped over the line of free speech and into inflicting harm upon others.

Seriously, even the ACLU wouldn't take this case because it had no merits - the actions were clearly meant to cross the line into that which is civilly actionable.

Just one correction: In this case, it was a jury that decided the matter.

The law already states that actions which essentially "shock the moral conscience" (ie. are absolutely outrageous and inappropriate) and intentionally inflict emotional distress are actionable in civil court. What the jury had to determine was whether or not these actions met that description. They decided in favor of the plaintiff.

The judge simply oversaw the case and explained to the jury what the law was, and what they needed to decide.
Thanks for the correction. I was actually speaking in more general terms about "such" cases, not this one in particular. Civil cases can be decided by juries or by judges.

But of course, the jury would never have heard the case, if it had been judged to be without merit. Motions for Summary Dismissal, which defendants always bring to argue that the complaint against them is without merit, are standard operating procedure before any real arguments are presented, i.e. before the real case begins. Plaintiffs have a corresponding motion, the Motion for Summary Judgment. When I've worked for lawyers, I've prepared both such documents, sometimes for the same party, in cases of claim and counter-claim, where parties are mutually suing each other.

Indeed. Phelps intentionally picks an emotional situation and targets his speech at particular people. He cannot argue that he does not intend to inflict emotional damage, as that is quite clearly the whole point of his method. He is intentionally outrageous and beyond the pale. He has intentionally stepped over the line of free speech and into inflicting harm upon others.

Seriously, even the ACLU wouldn't take this case because it had no merits - the actions were clearly meant to cross the line into that which is civilly actionable.

It's a text book case: Phelps made his bed, and now he gets to lie in it.

It's not against the law to leave toys scattered about your home. But if a guest sues you after breaking his back due to accidental flight caused by errant skateboard, he could technically win.

only because the state says he can - if the state said otherwise, then it would be otherwise. which is sorta the point.

But it doesn't mean we have to sit back and let other people poke at us without responding.


I find it weird, but I'm trying to get used to it.

Pro: Mods are people. Having powers doesn't mean they're nothing but authority figures.
Con: Anything a mod does looks like an exercise of power. Like a role-model.

To qualify that con, I can half-see how abuse between people who've had plenty of time to size each other up and both have thick skins is GOOD CLEAN FUN. I can almost see that one mod might deliberately encourage that without really breaking mod policy ... you're all a bit different from each other and that's great.

But I must say this: if you wanted to post and be treated just like any other poster, you'd use a puppet.

Any number of the posters I think I know could be mods going incognito.

V..V
>..>
<..<

~..~

only because the state says he can - if the state said otherwise, then it would be otherwise. which is sorta the point.
What point? I don't see a point from you yet.

But I must say this: if you wanted to post and be treated just like any other poster, you'd use a puppet.

I suppose I could, but in a sense, wouldn't that be dishonest? Also -- sooner or later someone figures out which puppet is whose, and then we're back to square one.

I would also like to think that playing fair (that is, not using the mod hammer for personal reasons) would be the assumption and not a shock.

What point? I don't see a point from you yet.

i may have been too vague before. the point is that you have a slight contradiction in your thinking - a contradiction that can only be lessened by positing some distinction between "the government silencing phelps" and "the government writing and enforcing laws that silence phelps". i wonder what this distinction looks like, and why we should care about it.

(alternatively, you could merely throw out one of the contradictory statements, but where's the fun in that?)

i may have been too vague before. the point is that you have a slight contradiction in your thinking - a contradiction that can only be lessened by positing some distinction between "the government silencing phelps" and "the government writing and enforcing laws that silence phelps". i wonder what this distinction looks like, and why we should care about it.

(alternatively, you could merely throw out one of the contradictory statements, but where's the fun in that?)

Neither is an accurate description of what is happening. There is no criminal action being taken against Phelps and, as long as Phelps does not harm another person, he can say whatever he likes without civil action as well.

The government is not, in any way, silencing Phelps or regulating what he can and cannot say. It isn't writing laws that silence Phelps or make it illegal to say what he has to say.

What the government is doing is enforcing the result of civil action taken by a citizen who has been harmed by Phelps' methods - Phelps' actions.

i may have been too vague before. the point is that you have a slight contradiction in your thinking - a contradiction that can only be lessened by positing some distinction between "the government silencing phelps" and "the government writing and enforcing laws that silence phelps". i wonder what this distinction looks like, and why we should care about it.

(alternatively, you could merely throw out one of the contradictory statements, but where's the fun in that?)

I think Muravyets was making a fairly obvious distinction. On the one hand, we have the government writing and enforcing content-neutral laws that happen to apply to Phelps and cause he and his crew to be liable for injury caused to other citizens. On the other hand, we have the government seeking to silence Phelps based on the content of his speech. The first is consistent with the First Amendment. The second would not be.

I suppose I could, but in a sense, wouldn't that be dishonest? Also -- sooner or later someone figures out which puppet is whose, and then we're back to square one.

"Someone" =/= "everyone" ... and I guess that would be unfair too. If you used a puppet.

I would also like to think that playing fair (that is, not using the mod hammer for personal reasons) would be the assumption and not a shock.

So debating as a mod IS a mod decision. You're proving that mods are fair every time you don't use the mod hammer. Oh, I'm all confused now...

On the question of fairness, though: you're always offline, making it hard to know if you're here or gone for the day. Don't you have a tabbed browser like normal folks? Not quite as elusive as a certain other chin-wagger I guess.

you're always offline, making it hard to know if you're here or gone for the day. Don't you have a tabbed browser like normal folks? Not quite as elusive as a certain other chin-wagger I guess.

Hee, I is invisible Kat. Yus, I use a tabbed browser. ;) Honestly though, I usually am around, and posting.... or chatting in #nationstates_general.

I think Muravyets was making a fairly obvious distinction. On the one hand, we have the government writing and enforcing content-neutral laws that happen to apply to Phelps and cause he and his crew to be liable for injury caused to other citizens. On the other hand, we have the government seeking to silence Phelps based on the content of his speech. The first is consistent with the First Amendment. The second would not be.

well, maybe.

(of course, the mere fact of content neutrality isn't enough to render a liability claim plausible or consistent with liberty - insert "no one may gather a crowd while speaking in public"-type rule)

but it seems to me that others who have been answering my line of questions seem to be drawing a different distinction, namely that in this case the state isn't criminally prosecuting phelps and co, and thus this is not a case of the state silencing or even regulating what phelps can and cannot say. this sort of answer is clearly false.

but it seems to me that others who have been answering my line of questions seem to be drawing a different distinction, namely that in this case the state isn't criminally prosecuting phelps and co, and thus this is not a case of the state silencing or even regulating what phelps can and cannot say. this sort of answer is clearly false.

No, it isn't. First of all, there is no injunction being made to keep Phelps and co. from saying whatever they like. The government will not take any action to stop them from speaking or to stop them from spreading their message. Their websites are not being shut down, they are not being barred from picketing, they are not being told to alter their signs, or anything else that would be regulation of their speech.

All that has been done here is that Phelps and co. have been held civilly liable for harm they intentionally caused to another citizen. Nothing stops Phelps and co. from choosing to target another citizen in the same way. And, by that same token, nothing stops that new citizen from seeking redress.

The government is a mediator here, rather than the entity taking action. The issues are between the citizens involved, with the government mediating the dispute. If the government were to take action regarding the speech - if they were to tell the Phelps family that they cannot speak their message,etc. without facing government action, that would infringe upon their 1st Amendment rights. That is not, however, what is happening. The government cannot and will not take action unless a law is broken. It is the individual citizen - the harmed citizen - who may take action here.

regarding this baptist church preacher.
Some 300 years ago a Frenchman called Voltaire said on the freedom of speech.

"I do not agree with what you have to say, but I'll defend to the death your right to say it. "

And that is all I have to say.

Of course it's "defending to the death". He meant the conversation, the cheese-eating surrender monkey.



Seriously, Voltaire rocks.

Hee, I is invisible Kat. Yus, I use a tabbed browser. ;) Honestly though, I usually am around, and posting.... or chatting in #nationstates_general.

What's the server of that channel?

"We will continue to warn you of your impending doom as long as our God gives us breath," church leaders said in a press release

The answer is to kill them. If they can't draw breath its because their god has killed them. As they believe that god is punishing us, then we kill them it shows that god is really using us as messengers to shut up these radicalists. Or something like that.

All that has been done here is that Phelps and co. have been held civilly liable for harm they intentionally caused to another citizen. Nothing stops Phelps and co. from choosing to target another citizen in the same way. And, by that same token, nothing stops that new citizen from seeking redress.

this is even worse than i thought. there is nothing that stops a car thief from stealing more cars in the future either. i mean, sure, he is physically restricted from doing so by being put for a time in a place that lacks cars to steal, but when he gets out he can do so again. the fact that he will face state sanctioned negative consequences for doing so is apparently irrelevant.

seriously, your distinction is precisely the one i laid out before, and not the one that ctc laid out. which is fine, but it requires some explication.

the fact of the matter is that the state made the rules, and the rules apparently mean that speaking as phelps and co. do is now punishable to the order of being forced to pay out one quadrillion dollars if you do so. since nobody has this kind of money just laying around, speaking as phelps and co. do is effectively banned by the rules made by the state. which is precisely the same as the government silencing phelps, which m claims he opposes (unless, perhaps, he meant something else by the word 'silencing' - like assassination or indefinite solitary detention or something - but that would be a rather strange thing to feel the need to say)

the fact that the state has opted to have enforcement of these speech rules to non-state actors doesn't matter - states have done this for all sorts of things over the years, all the way up to enforcement of rules against murder and the like

this is even worse than i thought. there is nothing that stops a car thief from stealing more cars in the future either.

Directly? No. But doing so is illegal. It is a criminal action and the government itself will take action if he steals another car. If a police officer sees the car thief stealing a car, he will be immediately arrested and most likely prosecuted for his actions. If a police officer, on the other hand, sees Phelps protesting another funeral, he has no authorization to take any action at all. What Phelps would be doing is not illegal and the government authorities can take no action against him for it. Nothing is being made illegal. The government will take no action, even if the very next thing Phelps and co. does is pick a new funeral and go protest at it. The citizen may or may not take civil action, but the government will do nothing until that conflict arises.

Considering your insistence that there is no difference between criminal and civil action, don't you think it's rather telling that you had to pick a criminal action here? Whether you want to acknowledge it or not, there is a clear difference between the government making something illegal and a private citizen bringing a civil lawsuit.

I agree with Dem on this in general, (No, the world isn't coming to an end) but it's worth noting that one could argue that even a civil action could be construed as a violation of the 1st Amendment if one considers that liability is defined by law and whether a civil case is won or lost depends upon the laws enacted by the Government. Such things should be closely observed so that the laws aren't written such that civilians become a sort of attack dog for the Government to punish people in cases where it can't do so directly.

But that's hypothetical, and doesn't apply in this instance.

it's worth noting that one could argue that even a civil action could be construed as a violation of the 1st Amendment if one considers that liability is defined by law and whether a civil case is won or lost depends upon the laws enacted by the Government.

except for the first amendment part (which i don't much care about), that is precisely what i am noting. i take issue with the idea that the government has nothing to do with what is going on here, and is merely acting as a neutral moderator. the 'neutral moderator' made the rules, and thus any outcome of their moderation is hinged upon their decision as to what is and is not to be allowed. and thus dem's insistence that "the government is not, in any way, silencing Phelps or regulating what he can and cannot say" is just silly.

Directly? No. But doing so is illegal. It is a criminal action and the government itself will take action if he steals another car. If a police officer sees the car thief stealing a car, he will be immediately arrested and most likely prosecuted for his actions. If a police officer, on the other hand, sees Phelps protesting another funeral, he has no authorization to take any action at all.

yes yes, you are merely demonstrating that tct is wrong about which distinction you guys are drawning, and instead drawing it based on who the state authorizes to enforce various rules.

Considering your insistence that there is no difference between criminal and civil action, don't you think it's rather telling that you had to pick a criminal action here?

no. your characterization of being forced to pay 11 million dollars somehow not counting as silencing implies that anything short of being rendered physically incapable of an act forever doesn't actually prevent people from doing the action again. you clearly do not agree with the conclusion, and the best way to draw out the tension there is to use an example where you think the government actually does stop a person from committing some act, like car thievery. in that case there is something done to stop them from car-jacking - they are punished if caught. but by the very same token, phelps and pals face something that intends to stop them - they are forced to pay a bajillion dollars. and this something, far from being imposed by a non-state lynch mob, is determined by the state.

Whether you want to acknowledge it or not, there is a clear difference between the government making something illegal and a private citizen bringing a civil lawsuit.

yes, the difference being in the variety of punishment sanctioned by the law for various acts and what the proper venue for determining those punishments is. but certainly not in the existence of punishments, or in the fact that the state gets to decide what is punishable and to what extent.

except for the first amendment part (which i don't much care about), that is precisely what i am noting. i take issue with the idea that the government has nothing to do with what is going on here, and is merely acting as a neutral moderator. the 'neutral moderator' made the rules, and thus any outcome of their moderation is hinged upon their decision as to what is and is not to be allowed. and thus dem's insistence that "the government is not, in any way, silencing Phelps or regulating what he can and cannot say" is just silly.

Once again, it isn't a matter of "what's allowed". It is a matter of what you may be civilly liable for.

no. your characterization of being forced to pay 11 million dollars somehow not counting as silencing implies that anything short of being rendered physically incapable of an act forever doesn't actually prevent people from doing the action again.

No, it doesn't, largely because "11 million dollars" is not some kind of set fee, nor is it being paid to the government. It is what a jury of his peers decided was appropriate for the harm caused in this particular instance. Next time, in another case, a jury may decide that no action is warranted. They may decide that less recompense is warranted. They may decide that the newer case represents an even more heinous action and that the harmed party should thus receive more. And, in any of these cases, the government will not get involved at all unless a private citizen feels that they have suffered harm.

And, here's the kicker, Phelps and crew won't have to face even the possibility of this if they spread their message in such a way that they do not specifically target and harass individuals. The government isn't saying, "You can't say this." They aren't even saying, "You can't say this here." What they are saying is, "If you specifically target and try to harm an individual, and that individual feels that they have been harmed, you can be held liable for your actions."

yes, the difference being in the variety of punishment sanctioned by the law for various acts and what the proper venue for determining those punishments is. but certainly not in the existence of punishments, or in the fact that the state gets to decide what is punishable and to what extent.

It's really more that the people decide what constitutes harm. This isn't a matter of a bunch of politicians sitting around talking about what they do and do not find appropriate. It is a matter of a private citizen bringing a grievance before a jury of his peers, and that jury determining whether or not he has a valid claim, within the basic principles of the Constitution and the idea that one person's rights end where another's begin.

Once again, it isn't a matter of "what's allowed". It is a matter of what you may be civilly liable for.

distinction without a difference. if it was allowed, it would be unpunishable. this is what allowed means. the only way out of this is to argue that there is no punishment here. but since millions of the dollars in question are explicitly punitive damages, i wish you good luck in that argument.

No, it doesn't, largely because "11 million dollars" is not some kind of set fee, nor is it being paid to the government. It is what a jury of his peers decided was appropriate for the harm caused in this particular instance. Next time, in another case, a jury may decide that no action is warranted. They may decide that less recompense is warranted. They may decide that the newer case represents an even more heinous action and that the harmed party should thus receive more.

and this differs in what relevant regard from the realm of possibilities open to judges and juries regarding appropriate punishment for particular criminal acts?

It's really more that the people decide what constitutes harm. This isn't a matter of a bunch of politicians sitting around talking about what they do and do not find appropriate. It is a matter of a private citizen bringing a grievance before a jury of his peers, and that jury determining whether or not he has a valid claim, within the basic principles of the Constitution and the idea that one person's rights end where another's begin.

ah, so i was dreaming the republican buzzword of tort reform?

distinction without a difference. if it was allowed, it would be unpunishable.

Hardly. If that were true, one wouldn't be able to sue if they were harmed by otherwise legal actions. For instance, it is perfectly legal and allowable for me to build a swimming pool in my backyard. However, if someone is harmed in or around that pool, I am civilly liable for their injuries. That does not mean that the government has disallowed or stopped me from having a pool. It just means I am not immune to the possible consequences of doing so.

Would you really argue that this means I am not allowed to put in a pool on my property?

Hardly. If that were true, one wouldn't be able to sue if they were harmed by otherwise legal actions. For instance, it is perfectly legal and allowable for me to build a swimming pool in my backyard. However, if someone is harmed in or around that pool, I am civilly liable for their injuries. That does not mean that the government has disallowed or stopped me from having a pool. It just means I am not immune to the possible consequences of doing so.

Would you really argue that this means I am not allowed to put in a pool on my property?

you're allowed to have the pool. you aren't allowed to let people to come to harm (within certain limits set by law) in and around it. i can only sue you precisely because we don't allow that. if we did allow that, then i could collect nothing from you as you would have an absolute defense.

i may have been too vague before. the point is that you have a slight contradiction in your thinking - a contradiction that can only be lessened by positing some distinction between "the government silencing phelps" and "the government writing and enforcing laws that silence phelps". i wonder what this distinction looks like, and why we should care about it.

(alternatively, you could merely throw out one of the contradictory statements, but where's the fun in that?)

You are mistaken. There is no contradiction in my statements.

Oh, and by the way, if you see a contradiction, why haven't you identified it? I think it's because it doesn't exist.

well, maybe.

(of course, the mere fact of content neutrality isn't enough to render a liability claim plausible or consistent with liberty - insert "no one may gather a crowd while speaking in public"-type rule)

but it seems to me that others who have been answering my line of questions seem to be drawing a different distinction, namely that in this case the state isn't criminally prosecuting phelps and co, and thus this is not a case of the state silencing or even regulating what phelps can and cannot say. this sort of answer is clearly false.
There's no maybe about it. No one is telling Phelps he may not speak, and no one is punishing Phelps for his speech. A private citizen sued for harm done to him by Phelps' actions. That has nothing at all to do with the content of Phelps' speech. Period.

you're allowed to have the pool. you aren't allowed to let people to come to harm (within certain limits set by law) in and around it. i can only sue you precisely because we don't allow that. if we did allow that, then i could collect nothing from you as you would have an absolute defense.

OK, you want to insist that allowing a person to sue Phelps for harm caused by his actions is the same as denying him the right to speak? Fine: Show us where in the court's decision it says Phelps may not speak from now on. Then show us Phelps cancelling protests. The fact is you are wrong. Nothing is impinging on Phelps' speech. Therefore, nothing in this case affects his civil rights. Period.

You are the one trying to make a distinction -- or perhaps a connection, rather -- that does not exist.

There's no maybe about it. No one is telling Phelps he may not speak, and no one is punishing Phelps for his speech. A private citizen sued for harm done to him by Phelps' actions. That has nothing at all to do with the content of Phelps' speech. Period.

ok, this is just stupid. the action on which harm was claimed is his speech, specifically the content of it. and if being told that your speech will cost you millions in punitive damages doesn't amount to saying you can't speak it, what the fuck possibly could?

ok, this is just stupid. the action on which harm was claimed is his speech, specifically the content of it. and if being told that your speech will cost you millions in punitive damages doesn't amount to saying you can't speak it, what the fuck possibly could?

The bolded part is the part where you are wrong.

The harm does not come from the content of Phelps' speech but from the context in which he said it.

If Phelps had been holding his protest in a public square in the same township as the cemetery, but not AT the cemetery, the man who sued him would have had no case. If Phelps had been on television spouting his crap about dead soldiers in general, and not pointing out specific people by name, the man would have had no case. If Phelps had printed rants about generic dead soliders in a book or in newspapers, the man would have had no case. If Phelps had done things like that, the man who sued him would have had no legitimate complaint to bring against him, no matter how bad Phelps' words made him feel, because Phelps has a right to speak his mind in public.

BUT what Phelps did -- what Phelps does -- is get right into the faces of individual citizens and celebrate the death of THEIR family members and heap abuse upon THEM personally, by name, and bring down obnoxious and unwelcome and unsolicited media attention upon THEM personally. He blows open THEIR lives, at a horrible time for them personally, solely to benefit himself -- at their expense and without their consent.

THAT is the harm for which he was sued. THAT is the harm for which he was ordered to pay that much money.

As for "what the fuck possibly could" amount to telling Phelps he can't speak, well, obviously, if an injunction was handed down prohibiting Phelps or the WBC from speaking and protesting in public -- i.e. saying "you can't speak" -- that would amount to telling him he can't speak. Only, as far as I know, that didn't happen.

only because the state says he can - if the state said otherwise, then it would be otherwise. which is sorta the point.

But the state isn't saying that Phelps can't do what he's doing. It's saying "you've caused this guy harm, and he wants compensation for it. We find that you've harmed him, and that you're liable for it."

The extreme logical extension of what you're saying would mean the end of liability and the complete overruling of caveat emptor. Not to mention that slander, libel, inciting to riot/violence would no longer be causes for legal recourse.

You don't have complete free speech. And you're certainly not free to deliberately harass people.

If Phelps had been holding his protest in a public square in the same township as the cemetery, but not AT the cemetery, the man who sued him would have had no case.

slight problem - they were 1000 feet away, and yet somehow there was a case...

As for "what the fuck possibly could" amount to telling Phelps he can't speak, well, obviously, if an injunction was handed down prohibiting Phelps or the WBC from speaking and protesting in public -- i.e. saying "you can't speak" -- that would amount to telling him he can't speak. Only, as far as I know, that didn't happen.

why? what would back up that injunction that is more effective than charging millions in punitive damages?


wait, are you drawing the distinction between prohibition from this sort of speech vs speech in general? is that what's been at work here all along?

But the state isn't saying that Phelps can't do what he's doing. It's saying "you've caused this guy harm, and he wants compensation for it. We find that you've harmed him, and that you're liable for it."

otherwise known as "you can't do that"

You don't have complete free speech. And you're certainly not free to deliberately harass people.

because the state has so declared, yes. but they could in principle declare otherwise.

slight problem - they were 1000 feet away, and yet somehow there was a case...
"Too close" is a subjective quality. That's why the matter is argued in court.


why? what would back up that injunction that is more effective than charging millions in punitive damages?


wait, are you drawing the distinction between prohibition from this sort of speech vs speech in general? is that what's been at work here all along?
No, FS, that is not what I said, and anyone who is not trying to force pointless and endless argument would know that. You have had this explained to you by at least 4 different people for several pages now. I have made my arguments as clearly as I can. If they are not clear enough, I refer to the arguments of the other 3 or more people who have been addressing this in agreement with me.

[EDIT: deleted paragraph because it's just not worth it.]

For the last page and a half, you have just been repeating yourself, and answering you forces me to repeat myself. I decline to do that any more. You have my argument in its entirety, including all my answers to your objections. Go think about it, come up with some NEW objections, and I will try to address those. But I, for one, am done chasing you around this particular circle.

otherwise known as "you can't do that"



because the state has so declared, yes. but they could in principle declare otherwise.
Here's another flaw in your thinking about this: If "the state" could "in principle" declare that it's okay to harass people, then Fred Phelps could conceivably, "in principle," spend his entire life in court, defending against lawsuits that do not need to have any legitimate basis because harassment is permitted. Now THAT really would intefere with his ability to speak, wouldn't it?

The fact that your arguments have such gaping flaws in them, suggests that you are being pointlessly contrary on this topic and have not really thought out your position.

Here's another flaw in your thinking about this: If "the state" could "in principle" declare that it's okay to harass people, then Fred Phelps could conceivably, "in principle," spend his entire life in court, defending against lawsuits that do not need to have any legitimate basis because harassment is permitted. Now THAT really would intefere with his ability to speak, wouldn't it?

what the fuck are you on about? if harassment were allowed, then any lawsuit based on phelps harassing someone would be dismissed out of hand. and while that could be time consuming if people insisted on continuously bringing such frivolous suits, the bringing of a suit is clearly not itself a punishment.

otherwise known as "you can't do that"

So how do you square that, with this?


you're allowed to have the pool. you aren't allowed to let people to come to harm (within certain limits set by law) in and around it. i can only sue you precisely because we don't allow that. if we did allow that, then i could collect nothing from you as you would have an absolute defense.

You're not allowed to let people to come to harm without being liable. But somehow you're allowed to cause people harm without liability? Am I the only one seeing a disconnect here?


if harassment were allowed, then any lawsuit based on phelps harassing someone would be dismissed out of hand. and while that could be time consuming if people insisted on continuously bringing such frivolous suits, the bringing of a suit is clearly not itself a punishment.

So lets get this straight. Harassment is not allowed. But nothing can be done to stop it? That's what you're saying?


because the state has so declared, yes. but they could in principle declare otherwise.

They could. But that would mean overturning every single liability claim that has ever been filed. Your blender exploded? Sorry, you can't sue. That new car come without an engine? Even though we advertised otherwise? Caveat Emptor and free speech. Shoddy house fell down on your head? Not liable. Your house address and picture given to neo-nazis who have an axe to grind because of your political beliefs? Free speech for all.

That's the logical extreme of what you're saying.

ok, this is just stupid. the action on which harm was claimed is his speech, specifically the content of it. and if being told that your speech will cost you millions in punitive damages doesn't amount to saying you can't speak it, what the fuck possibly could?

So if I were to give your address to a bunch of people who would later riddle you with bullets on their own volition (lets say they just hate you for ethnic/political/preferred bubblegum flavor), even though I gave them a target, I am not liable?

Or lets say I incite a riot through speech alone. Whipping up a crowd to a killing frenzy until they kill countless people and cost millions in damage. I am also not liable?

Free speech after all. I can say whatever I want, wherever I want, however I want, regardless of the harm it causes and not be liable for it.

So if I were to give your address to a bunch of people who would later riddle you with bullets on their own volition (lets say they just hate you for ethnic/political/preferred bubblegum flavor), even though I gave them a target, I am not liable?

Or lets say I incite a riot through speech alone. Whipping up a crowd to a killing frenzy until they kill countless people and cost millions in damage. I am also not liable?

Free speech after all. I can say whatever I want, wherever I want, however I want, regardless of the harm it causes and not be liable for it.I think Free Soviets is taking the opposite position.

You're not allowed to let people to come to harm without being liable. But somehow you're allowed to cause people harm without liability? Am I the only one seeing a disconnect here?

where did the second sentence above come from? not me, as far as i can tell.

So lets get this straight. Harassment is not allowed. But nothing can be done to stop it? That's what you're saying?

nope. i think you got lost in the hypothetical, though you seem to have misread it in the process too.

They could. But that would mean overturning every single liability claim that has ever been filed. Your blender exploded? Sorry, you can't sue. That new car come without an engine? Even though we advertised otherwise? Caveat Emptor and free speech. Shoddy house fell down on your head? Not liable. Your house address and picture given to neo-nazis who have an axe to grind because of your political beliefs? Free speech for all.

That's the logical extreme of what you're saying.

yeah, and? the logical extreme you posit is in no way logically necessary - this slope ain't anywhere near that slippery.

but in any case, you have agreed with my point that the government is not some passive entity in all of this.

I think Free Soviets is taking the opposite position.

yeah, i'm not sure where nas is getting this from - are my posts being more obtuse than usual?

yeah, i'm not sure where nas is getting this from - are my posts being more obtuse than usual?

I'm getting your point exactly, but I'm not sure anyone else is.

Perhaps another hypothetical might help: if the government changed the rules and decided that that private individuals could sue anyone for holding political demonstrations they didn't like, would this or would this not be a violation of free speech?

where did the second sentence above come from? not me, as far as i can tell.

If you mean the second quote:

http://forums.jolt.co.uk/showpost.php?p=13194355&postcount=280

That's you isn't it?


nope. i think you got lost in the hypothetical, though you seem to have misread it in the process too.

Well bear with me, but based on your position and what you're saying, I am left with few rational options but to interpret what you're meaning is that while you can bring suits against such harassment if it wins, the punishment then goes against the first amendment.


yeah, and? the logical extreme you posit is in no way logically necessary - this slope ain't anywhere near that slippery.

Why isn't it? Why does Phelps harassment get a free pass while my incitement to riot doesn't? If you want to argue that it causes harm that makes the distinction, then obviously the defendant in this case also has the same distinction as mine. Both were intended to cause harm.

So why does Phelps get a free pass then?


but in any case, you have agreed with my point that the government is not some passive entity in all of this.

Pfft. The government provided the service of an arbitrator. By the act of being an arbitrator, you can't be a passive entity. But saying that it's going against the first amendment in this manner is like saying the postal service was the Unabomber's accomplice.

Be that as it may, it is completely irrelevant.

When Phelps started protesting military funerals, legislative responses to it happened in a matter of months.

Of course, they were doing the same to gays back in 1998 (at the latest)... and nothing happened.

I would classify that as a rude wake up call from the It's Not Happening To Me Disease. The same thing happened back in the early 2000s. Nobody in the United States gave a shit about the Taliban having the run of the mill in Afghanistan and oppressing women especially until 9-11 happened and Bin Ladin ducked there for sanctuary.

If you mean the second quote

no, i mean the idea that "somehow you're allowed to cause people harm without liability". i don't recall ever saying anything of the sort.

I'm getting your point exactly, but I'm not sure anyone else is.

Perhaps another hypothetical might help: if the government changed the rules and decided that that private individuals could sue anyone for holding political demonstrations they didn't like, would this or would this not be a violation of free speech?

well, it's worth a shot.

What's the server of that channel?

It's esper.net, but don't come there to talk mod stuffs -- there's a perfectly good channel, #themodcave for that.

Fuck, Fass ruins threads something chronic. After reading three or so pages of his shit, gets so boring.

Anyway, OT, good work. Hopefully this will lead to an ending of Phelps' idiocy.

Fuck, Fass ruins threads something chronic. After reading three or so pages of his shit, gets so boring.

Anyway, OT, good work. Hopefully this will lead to an ending of Phelps' idiocy.

If you had nothing better to say than a hit and run slam, you'd have been better off saying nothing at all.

no, i mean the idea that "somehow you're allowed to cause people harm without liability". i don't recall ever saying anything of the sort.

Well, according to the plaintiff, the defendant deliberately caused him harm. The jury then found him liable for the harm, and awarded damages.

You are arguing that the damages is a suppression of first amendment rights, and thus unconstitutional. A logical conclusion is that you then oppose the damages on the grounds that they deter future acts which would incur a repeat of such legal recourse.

Objectively, you would be then arguing that though Phelps is causing harm through his actions of speech, both figuratively and literally, he is not liable. Assuming that you are not simply siding with the defendant for the sake of the defendant, your premise is then very simply distilled into this statement.

"No person can be held liable for any harm or damage caused by the exercising of his or her free speech"

Thereby, a person inciting others to slay those of different political beliefs while providing information that would facilitate such killings cannot be held liable no?

Nor can a rabble rouser inciting a mob to violence be held liable for the actions which he himself encouraged?

Or even more simply, can a man be held liable for deaths in a stampede he directly caused by shouting "Fire" in a crowded room?

If you had nothing better to say than a hit and run slam, you'd have been better off saying nothing at all.

Made an observation about the thread, then made my remarks on the original topic. Sorry, is there anything wrong with that?

You are arguing that the damages is a suppression of first amendment rights, and thus unconstitutional.

i don't recall doing this. certainly not in the recent string of posts.

Objectively, you would be then arguing that though Phelps is causing harm through his actions of speech, both figuratively and literally, he is not liable. Assuming that you are not simply siding with the defendant for the sake of the defendant, your premise is then very simply distilled into this statement.

"No person can be held liable for any harm or damage caused by the exercising of his or her free speech"

Yes, that's one standard that would justify non-liability in this case.

I can think of lots of others... like, say, "No person can be held liable for any harm or damage caused by the exercise of his or her free speech except when it constitutes a direct threat", or "except when it endangers people's lives," or "except when it encourages and is intended to encourage imminent lawless action." (Or some combination of the above.)

None of these would have the consequences of the absolutist standard you present. Thus, slippery slope fallacy.

Made an observation about the thread, then made my remarks on the original topic. Sorry, is there anything wrong with that?

Other than your remarks about the OP being nearly content-free and seeming to be an excuse to take a jab at another poster?

Other than your remarks about the OP being nearly content-free and seeming to be an excuse to take a jab at another poster?

But, it wasn't content free and therefore I didn't do anything wrong.

Is this off-topic talk really necessary? I don't think so.

i don't recall doing this. certainly not in the recent string of posts.

Well then, what is your implication with these then?


question - what happens when they don't pay the money?



and the debt in this case was incurred through how?



now explain to me the distinction you are drawing such that both of the above statements can coherently stand together.


You stated these to draw comparisons between forcing the payment of damages awarded to the government silencing Fred Phelps through enactment of first amendment conflicting laws.

So tell me, if that is not your stance, what is your stance?


None of these would have the consequences of the absolutist standard you present. Thus, slippery slope fallacy.

Aha!

When you start introducing caveats of harm, then how can you justifiably argue that harassment does not itself constitute harm? Are we to limit it to mere physical harm to one's person?

But what of those who suffer property damage by those incited to harm by another's speech? Surely they count as well?

You see, caveats to an absolutists stance is another form of slippery slope. You cannot justifiably argue for limits to a caveat so long as the reasoning for the extensions to the caveat still hold true.

When you start introducing caveats of harm,

...that's not what I did....

then how can you justifiably argue that harassment does not itself constitute harm? Are we to limit it to mere physical harm to one's person?

We could do that, and make an argument for it.

But what of those who suffer property damage by those incited to harm by another's speech? Surely they count as well?

Perhaps. So?

You cannot justifiably argue for limits to a caveat so long as the reasoning for the extensions to the caveat still hold true.

Then you have to establish that the reasoning upon which we can accept Fred Phelps' speech as protected inevitably leads us to accept all speech as protected.

Off the top of my head, I can think of a reasonable distinction to make: Phelps' speech has a political purpose, it is intended to advocate a given political position, and thus it is worthy of protection as a contribution to political pluralism, essential to the proper functioning of democracy. Shouting "fire" in a crowded theater is not speech of that sort; nor is making a threat, or inciting criminality.

When it comes down to it, it so happens that I am not at all certain that hate speech is worthy of free speech protection, nor, as I said earlier in the thread, am I sure that Phelps' methods are worthy of protection (though for different reasons than any "outrageous" quality to them or any emotional distress they might cause)... but reasoning along those lines is hardly absurd.

And this is the real issue: whether or not the reason given in this case is actually a good reason to restrict freedom of expression.

Well then, what is your implication with these then?

that there is a fundamental tension between M's statement that he would oppose the government silencing phelps, and his contention that this case was decided in accord with the law. thus the whole go 'round about what distinction is being drawn.

So tell me, if that is not your stance, what is your stance?

in this particular part of the conversation - that the state is clearly a major actor in determining what speech is and isn't allowed, and the mere fact that they have left some of the enforcement of this to individuals does nothing to mitigate that fact. further, the lack of criminal punishments has no bearing on whether some action is allowed or not. things that are allowed are not punishable, and things that are punished are clearly not allowed - and as phelps was charged punitive damages, he clearly is being punished.

what the fuck are you on about? if harassment were allowed, then any lawsuit based on phelps harassing someone would be dismissed out of hand. and while that could be time consuming if people insisted on continuously bringing such frivolous suits, the bringing of a suit is clearly not itself a punishment.

But, Oh Not-Thinking-It-Through One, I wouldn't have to sue Phelps for harrassing me. I could sue him for emotional pain and suffering caused by the color of his tie, or any other frivolous shit, specifically for the purpose of harassing him, since I'd be allowed to, now wouldn't I? In fact, I could follow him around to all the most private and difficult events in his life and disrupt the proceedings with belligerent noise about some totally unrelated subject, again for the express purpose of harassing him until he couldn't do anything but deal with me. In other words, I could use his own tactics against him. And if harassment were okey-dokey, I could do it until he was totally unable to carry on his life AND speak his mind under the First Amendment.

Bottom line: You DO get to speak your mind. You DO NOT get to harass private citizens while doing it. If all you're doing is speaking your mind, no one can penalize you for it. That is your right. If you are harassing people, those people can take steps to make you stop. That is their right.

So how do you square that, with this?



You're not allowed to let people to come to harm without being liable. But somehow you're allowed to cause people harm without liability? Am I the only one seeing a disconnect here?
<snip>
I think FS might be the only person not seeing it.

But, Oh Not-Thinking-It-Through One, I wouldn't have to sue Phelps for harrassing me. I could sue him for emotional pain and suffering caused by the color of his tie, or any other frivolous shit, specifically for the purpose of harassing him, since I'd be allowed to, now wouldn't I? In fact, I could follow him around to all the most private and difficult events in his life and disrupt the proceedings with belligerent noise about some totally unrelated subject, again for the express purpose of harassing him until he couldn't do anything but deal with me. In other words, I could use his own tactics against him. And if harassment were okey-dokey, I could do it until he was totally unable to carry on his life AND speak his mind under the First Amendment.

yeah, and? you don't think i was proposing that the harassment a-ok rule is actually good, do you?

I'm getting your point exactly, but I'm not sure anyone else is.

Perhaps another hypothetical might help: if the government changed the rules and decided that that private individuals could sue anyone for holding political demonstrations they didn't like, would this or would this not be a violation of free speech?

Re the bolded part: Who gives a shit, since they haven't changed the rules? We are discussing a real case, real events, and real rules. Pushing forward a "What If?" argument based on conditions that simply do not exist, and claiming that this somehow is relevant to what really did happen and does exist, is not only nonsensical, it's annoying.

We are discussing a real case, real events, and real rules.

Yeah... and we are being irrational if we don't base our judgments of this "real case" on consistent standards.

Hypotheticals test whether a standard is actually held consistently: whether we would be willing to hold by it in other cases where it seems it should apply.

I think, if God really is punishing us, it's because we pay attention to idiots like the members of the Westboro Baptist Church. I hope every one of them has a loud, proud gay child.

Careful, those Westboro idiots may kill them and call it a sacrifice! They need just go away. Maybe at some point in their massive inbreeding, they'll finally get too stupid to even know how to talk.

Maybe at some point in their massive inbreeding, they'll finally get too stupid to even know how to talk.

... leaving them only to their itch to vote. And they can probably still listen to rightwing bullshit radio.

Yeah... and we are being irrational if we don't base our judgments of this "real case" on consistent standards.

Hypotheticals test whether a standard is actually held consistently: whether we would be willing to hold by it in other cases where it seems it should apply.

honestly, are we both being particularly hard to decipher in this thread or something?

that there is a fundamental tension between M's statement that he would oppose the government silencing phelps, and his contention that this case was decided in accord with the law. thus the whole go 'round about what distinction is being drawn.


<snip>
Wrong again, FS. I already explained my position to you several times, each time explaining exactly what distinction I was drawing and why my position has no "tension", fundamental or otherwise. Just because you refuse to acknowledge those explanations, doesn't make you right in your assessment of my argument. In fact, you have already attempted to misrepresent my argument to make it carry this so-called "tension" of yours.

And I still fail to see how you make the connection between "the government silencing Phelps" and a case being decided "in accordance with the law." Are you insinuating that the mere invocation of the law is a violation of Phelps' First Amendment Rights? If so, then kindly explain how Phelps has a First Amendment Right, except by invocation of law.

Your argument is the one that has made no sense from the beginning, because you are failing to show any connection between this case and Phelps losing his right of free speech. I even specifically challenged you to show me how Phelps has actually lost his rights as a result of this case. You have not. Either you are failing to make your argument, or you never really had an argument to make.

you are failing to show any connection between this case and Phelps losing his right of free speech.

ah, so i was right back in post 287, despite your protest to the contrary in 289. you used 'silencing' to mean losing his right to speech in total, rather than the sense i was using, that he was being silenced from this particular sort of speech. yes?

Yeah... and we are being irrational if we don't base our judgments of this "real case" on consistent standards.

Hypotheticals test whether a standard is actually held consistently: whether we would be willing to hold by it in other cases where it seems it should apply.
Let me explain to you the way I see the difference between considering hypotheticals and what is happening here:

Hypothetical Debate:

A subject topic is posed, a hypothetical approach or principle is offered (possibly more than one), and participants are invited to debate the "what if" scenarios. Result: Hopefully, a lively discussion of basic principles and their potential, or potential limits, in various applications.

This Thread:

The OP asks for information and opinions about a specific actual case, and then Free Soviets butts in with a totally unrealistic hypothetical that he (a) fails to identify so others may discuss it, and (b) frames in a slightly belligerent way as an attack against other people's statements -- i.e. uses his hypothetical to attack statements based on specific, real-world facts, without telling people he's doing that. Result: The debate becomes confused, turned in on itself, increasingly irritable, and increasingly all about Free Soviets, instead of the original topic -- i.e. hijack.

Debating hypotheticals is fine, but in this thread, Free Soviets is just wasting our time.

Oh, I see. It's okay for you to present your hypotheticals in the context of reality, but if someone decides to attack your hypothetical in the same context, you get to cop a condescending "you didn't really think I meant that" attitude. But I must admit, I admire the way you maintain your airy arrogance while totally failing to defend your own arguments.

dude, i think you should probably go back and reread the whole exchange. you seem to have lost the plot.

yeah, and? you don't think i was proposing that the harassment a-ok rule is actually good, do you?

Oh, I see. It's okay for you to present your hypotheticals in the context of reality, but if someone decides to attack your hypothetical in the same context, you get to cop a condescending "you didn't really think I meant that" attitude. But I must admit, I admire the way you maintain your airy arrogance while totally failing to defend your own arguments.

ah, so i was right back in post 287, despite your protest to the contrary in 289. you used 'silencing' to mean losing his right to speech in total, rather than the sense i was using, that he was being silenced from this particular sort of speech. yes?
I'm going to say "No," for two reasons.

First, because you're wrong. You are wrong on the facts, exactly as you have been from the beginning. The stuff Phelps was punished for doing was ACTION, not speech. Further, this decision affects ONLY the specific instance of such action that occurred at that specific place and time. It has absolutely NO affect on any other times he might want to engage in the same kinds of action, anywhere. It does NOT create a precedent that can be used against him in the future. It just doesn't. Period. So this lawsuit does not "silence" Phelps from any "sort of speech" or action or anything. Someone else already explained this to you, but I guess you ignored that just as you've ignored all the other factual information in this thread.

Second, I'll say "no" because, as of the above-quoted post, I really have no respect left for you, and therefore am not motivated to say anything else to you from now on.

This Thread:

The OP asks for information and opinions about a specific actual case, and then Free Soviets butts in with a totally unrealistic hypothetical that he (a) fails to identify so others may discuss it, and (b) frames in a slightly belligerent way as an attack against other people's statements -- i.e. uses his hypothetical to attack statements based on specific, real-world facts, without telling people he's doing that.

FS has for the most part used hypotheticals, as I recall, in a slightly different way... he has used them as examples to illustrate more general theoretical points.

This, too, is perfectly legitimate, when his opponents won't see that government action is crucial to allowing private citizens to sue Fred Phelps for this sort of thing... that if it weren't for the rules the government has established, Fred Phelps would not be paying anything.

In considerations of "responsibility", of course, hypotheticals are especially important... because in order for the government to be responsible for restricting Phelps' speech, its actions must in some way be causally related to the result: if they had been different in certain ways, what actually happened would not have happened.

dude, i think you should probably go back and reread the whole exchange. you seem to have lost the plot.

I've read this entire exchange several times over, just to convince myself you really posted all this time-wasting hypothetical crap. There never was a "plot" to follow, because your argument has never had any sense or structure to it.

Oh, by the way, I don't mind the generic "he" pronoun when you don't know the gender of the person you're talking about, but when you don't know the person's gender, you should avoid addressing them directly in gender-specific ways. I am not a guy.

FS has for the most part used hypotheticals, as I recall, in a slightly different way... he has used them as examples to illustrate more general theoretical points.

This, too, is perfectly legitimate, when his opponents won't see that government action is crucial to allowing private citizens to sue Fred Phelps for this sort of thing... that if it weren't for the rules the government has established, Fred Phelps would not be paying anything.

In considerations of "responsibility", of course, hypotheticals are especially important... because in order for the government to be responsible for restricting Phelps' speech, its actions must in some way be causally related to the result: if they had been different in certain ways, what actually happened would not have happened.
FS has made bad hypotheticals and used them badly. His technique is severely wanting, as is the content of his arguments. He is so out of keeping with the real-world base of the debate as to be considered off-topic. The OP did not invite anyone to turn this into a hypothetical debate, and that is not how it was being pursued. If you and FS want to make it such, you or he should say so. Since neither of you did, you are not only taking us off-topic, you are also being rude.

But be that as it may, I still have no respect for FS's argument. I have called it crap because that's what I think it is, even if it's only hypothetical crap.

I've read this entire exchange several times over, just to convince myself you really posted all this time-wasting hypothetical crap. There never was a "plot" to follow, because your argument has never had any sense or structure to it.

interesting, as S seems to have grokked it just fine. perhaps the problem is on your end?

Oh, by the way, I don't mind the generic "he" pronoun when you don't know the gender of the person you're talking about, but when you don't know the person's gender, you should avoid addressing them directly in gender-specific ways. I am not a guy.

dude is not gender specific. especially not when used in the exasperated and condescending sense.

interesting, as S seems to have grokked it just fine. perhaps the problem is on your end?
No, I'm not at all surprised that Soheran understood you ("grokked"? Say, how many lava lamps do you own?). Just like you, Soheran is a poster who has on more than one occasion been a pain in my ass, with his hypothetical fantasizing. Two peas in a pod, from my point view.

dude is not gender specific. especially not when used in the exasperated and condescending sense.
Ah, so you admit you were intending to be insulting towards me. Well, I won't waste your time the way you try to waste mine with your constant quibbling over what your statements really mean. You may take this at face value: Bite me.

There are time, place, and manner restrictions to the freedom of speech. These people should be allowed to spew out their crap, but not at a funeral. The right to mourn someone momentarily at a funeral overrides another person's right of free speech. However, I don't think they should be held civilly liable for their actions. People shouldn't be compensated for "being offended." They should be fined or punished in some way for violating a law.

The OP did not invite anyone to turn this into a hypothetical debate

All debates involving deductive argument can be hypothetical debates, because if we are applying a general principle ("As long as a private individual initiates it, it isn't really a government restriction on free speech") to a specific case ("A private individual initiated the suit against Fred Phelps; therefore, it was not a government restriction on free speech"), we must accept the application of that principle to other cases where its condition would apply. That follows simply from the law of non-contradiction.

For this reason, it makes perfect sense to bring up hypothetical cases, even in discussion of a particular case... if the principle leads to inappropriate or absurd conclusions when applied to them, it must be modified or rejected, which in turn might affect our judgment of the case at issue.

No, I'm not at all surprised that Soheran understood you

well, by your own reasoning you should be. remember that according to you i never presented a sensible argument at all. thus we must believe that either there actually was a plot to be grasped in my posts, or S can make sense of the senseless.

The fact that your country does those things does make your country barbaric and utterly abhorrent. Or should we judge your country somehow differently because it's yours? We don't deem Saudi Arabia to be exactly the opposite of those things because parts of its populace might disagree with what Saudi Arabia does - lots of Soviets disagreed with what the Soviet Union did, but that didn't efface what the country did, and neither does the fact that you happen to live in the USA change that the atrocities the USA continually commits make it barbaric and utterly abhorrent.



Wait, you've defended me "offsite"? As in, like, forums other than this one? Where you people get together to trash and "defend" people on this forum? Oh, dear, I am laughing so hard at the sadness of this that I am literally short of breath typing.

Lets put you in the shoes of the average citizen against US policy. You've been to protests, you've shouted out how much you hate George W. Bush. You've even held the vomit down while watching a Michael Moore documentary so that he will get money and send a message to the United States that their actions are not ok. Would you revolt? Against the United States? Where citizens are kidnapped and taken to foreign countries and tortured, sometimes with reason, because they might have had a connection with terrorism somewhere? Who would notice if you disappeared? Your family? and what would THEY do? Most likely be taken with you. You need a reality check, the situation is far more out of control than you know. There are protests everywhere, the thing is that the populace can't remove the guv'na unless they flat out kill him, or by election. We tend to think the latter is a more appropriate, civilized way, I don't know how assassination is looked on by swedes, but it certainly is a last resort for USA citizens. Oh, and by the way, you can't talk about moral highground until you justify the support Sweden gave to Nazi Germany. Sure you were declared neutral, but your actions didn't seem to follow through. (You let them use your country as in invasion point for Russia, use of facilities, etc.) I don't think that your country is bad, I just think that the leaders and their supporters were. Watch yourself, you can't blame citizens entirely for something that their leaders do.

I'm getting your point exactly, but I'm not sure anyone else is.

Perhaps another hypothetical might help: if the government changed the rules and decided that that private individuals could sue anyone for holding political demonstrations they didn't like, would this or would this not be a violation of free speech?

The way I understand it, this wouldn't be a change of law at all. You already can sue someone for holding a political demonstration you don't like. However, unless you can demonstrate something like intentional infliction of emotional distress, the courts are not going to rule in your favor.

Phelps and co. target specific individual citizens and spew their vitriol at funerals - where people are already going through a lot and are emotionally fragile.

The problem here is not that they have a shitty message - their message is largely irrelevant. The problem is the fact that they target individuals to harass and do it in such a way that intentionally causes emotional distress.

This, too, is perfectly legitimate, when his opponents won't see that government action is crucial to allowing private citizens to sue Fred Phelps for this sort of thing... that if it weren't for the rules the government has established, Fred Phelps would not be paying anything.

Well, considering that a lawsuit takes place in court, and the court is a government entity, it is certainly true that some sort of government action must be taken.

Of course, that is a far cry from the government taking action to silence or restrict any given speech.

All debates involving deductive argument can be hypothetical debates, because if we are applying a general principle ("As long as a private individual initiates it, it isn't really a government restriction on free speech") to a specific case ("A private individual initiated the suit against Fred Phelps; therefore, it was not a government restriction on free speech"), we must accept the application of that principle to other cases where its condition would apply. That follows simply from the law of non-contradiction.

You might have a point if that were the argument being made. Of course, it isn't. You are completely ignoring the fact that the burden of proof was on said private citizen to demonstrate harm - and, given the stronger restrictions applying to emotional harm, that it was intentional infliction of harm.

The way I understand it, this wouldn't be a change of law at all. You already can sue someone for holding a political demonstration you don't like. However, unless you can demonstrate something like intentional infliction of emotional distress, the courts are not going to rule in your favor.

This is a distinction without a difference, because of the part I bolded: the government is still setting the rules of judgment. If the "rules" allow the paying of damages for free expression, then the government, for all intents and purposes, is restricting free expression.

The problem is the fact that they target individuals to harass and do it in such a way that intentionally causes emotional distress.

Well, assuming that the Westboro Baptist Church's actions actually meet the standard, yes.

But this in itself does not invalidate the argument that such restrictions violate freedom of expression... there are other restrictions merely on the means of expression (say, banning political demonstrations) that would transparently violate freedom of expression, even if they made no distinction based on content.

You are completely ignoring the fact that the burden of proof was on said private citizen to demonstrate harm - and, given the stronger restrictions applying to emotional harm, that it was intentional infliction of harm.

So? What does that have to do with anything?

This is a distinction without a difference, because of the part I bolded: the government is still setting the rules of judgment. If the "rules" allow the paying of damages for free expression, then the government, for all intents and purposes, is restricting free expression.

...except that the rules do not allow the paying of damages for free expression. The "rules" allow the paying of damages for harm - in this case, for intentional infliction of harm.

In that sense, the "rules" are no different from those that allow me to put in a pool, but hold me responsible for it if others are harmed in/around that pool. They aren't keeping me from having a pool or telling me what color it can be. They are telling me that I am responsible for any harm it causes. Likewise, the government is not (and cannot) keeping Phelps from speaking or telling him what his message can and cannot be. They are telling him that he is responsible for any harm he causes in the actions he takes to spread that message.

Well, assuming that the Westboro Baptist Church's actions actually meet the standard, yes.

I'd say that they pretty clearly do and that a jury agreed.

But this in itself does not invalidate the argument that such restrictions violate freedom of expression...

Yes, it does. The expression has nothing to do with it and there are no restrictions being placed. Phelps can spread his message all he likes. There are no restrictions on what that message can be. What he cannot do is intentionally target and harm other citizens without the possibility that they will hold him responsible for that harm.

there are other restrictions merely on the means of expression (say, banning political demonstrations) that would transparently violate freedom of expression, even if they made no distinction based on content.

Indeed there are. And there are restrictions on means of expression that do not. Of course, there is no ban here, so that's rather irrelevant.

So? What does that have to do with anything?

You and FS both keep trying to shift the discussion to suggest that the jury in this case ruled on the content of the speech and therefore, since the courts are government entities, they are restricting free speech. However, the jury didn't rule on any such thing. They ruled on the harm inflicted upon another citizen, finding, not that Phelps' message or speech were illegal or unacceptable, but instead that he intentionally harmed another person, and is thus responsible for said harm.

This is a distinction without a difference, because of the part I bolded: the government is still setting the rules of judgment. If the "rules" allow the paying of damages for free expression, then the government, for all intents and purposes, is restricting free expression.

Well, assuming that the Westboro Baptist Church's actions actually meet the standard, yes.

But this in itself does not invalidate the argument that such restrictions violate freedom of expression... there are other restrictions merely on the means of expression (say, banning political demonstrations) that would transparently violate freedom of expression, even if they made no distinction based on content.

*sigh*

Either the "point" of this argument is completely pedantic and trivial or there is no validity to the argument.

Yes, at some level any liability imposed on someone for their speech or symbolic actions is a restriction of free speech and at some level a civil case involves the authority of government. So what?

The First Amendment recognizes many limitations on free speech without jettisoning the idea altogether. You cannot defame, you cannot scream "fire" in a crowded theatre, etc.

The Supreme Court has recognized that the tort of intentional infliction of emotional distress could have a chilling effect on speech and have therefore limited its applicationin cases involving public figures -- just as they limit defamation cases involving public figures. See Hustler Magazine v. Falwell (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=485&invol=46), 485 U.S. 46 (1988). Cases involving public figures, for example, require proof of actual malice. Thus, the burden of proof on the plaintiff is relevant to the imposition placed upon free speech.

Unfortunately, none of us appear to know anything about the Phelps case but that reported in the media. We have no copies of the decisions of the trial court regarding free speech and liability. (If someone finds anything along those lines, please link them.) But that does not justify rampant speculation that basic principles of law were violated in this case.

Yeah, Phelps and the Westboro Batshit Insane Church.


Thank Parliament we have laws against hate speech and incitation to violence in Canada. You guys ought to get some for yourselves, too.

Truth be told, if such an event would happen near the place I live, I would immediately open my phone repertory and contact every gay man and woman I could grab, and proceed to organize the most monstrous kiss-in ever to have seen the light of day, right in front of the retards, and make osbcene, lewd gestures at them.

Hell, if it wasn't illegal, I'd strip naked and have hot gay sex with the first willing guy I'd find in front of them until they couldn't stand it and had to leave before their souls were corrupt for all eternity.

:rolleyes:

But seriously, these guys MUST be treated with all the scorn and contempt one can humanly muster, their inane views thrashed publicly and their ignorance mocked until they are reduced to objects of abject derision everywhere they go. They're barely human beings anymore by any standards; their misguided religious radicalism makes them little better than dangerous sociopathic creatures who put other's (and their own's) safety at risk.

You and FS both keep trying to shift the discussion to suggest that the jury in this case ruled on the content of the speech and therefore, since the courts are government entities, they are restricting free speech. However, the jury didn't rule on any such thing. They ruled on the harm inflicted upon another citizen, finding, not that Phelps' message or speech were illegal or unacceptable, but instead that he intentionally harmed another person, and is thus responsible for said harm.

except the harm is in the content of the speech. the harm in question could not have occurred except through the speech that was engaged in. no speech, no harm. different content to the speech, different (quite probably 'no') harm.

and it is trivially true that this is a state-sanctioned restriction on allowed speech. what you really intend to mean, i think, is that it is a perfectly reasonable and just one, which is a different argument altogether, more like the one that TCT is offering (though his is phrased in constitutional and legal language that pulls rather little weight with me and S)

taking off from S's earlier hypothetical, we can easily imagine that the rules of what constitutes harm are changed to allow 'i didn't approve of your anti-government protest' to count. this then allows anyone to successfully sue for the 'harm' of seeing an anti-government protest. in what way would this not be a government silencing of speech? the only way i can see it is if we are using 'silencing' in the strange way that M apparently was (though they continue to deny doing so).

The "rules" allow the paying of damages for harm

If the simple fact of "harm" distinguished free expression from something else, then any kind of offensive, distressing, annoying, or troublesome expression could be challenged... all of those cause "harm" of a sort, because harm at its root is subjective.

The actual standard, of course, allows nothing of the sort: it is far narrower. But if there is no absolute distinction between "free expression" and "harmful expression"--as the narrow construction of the standard in fact suggests--then the basis for this line is hardly as obvious and concrete as you make it out to be.

In that sense, the "rules" are no different from those that allow me to put in a pool, but hold me responsible for it if others are harmed in/around that pool.

Only for certain kinds of harm... perhaps if the pool is negligently placed and as a consequence someone falls into it and drowns.

Not if it offends someone.

They are telling him that he is responsible for any harm he causes in the actions he takes to spread that message.

No, they're not, because the government is smart enough to realize that standard would be absurd.

Neo Art gave us the standard earlier in the thread: it applies only to conduct that would be judged "extreme and outrageous" by an average, reasonable person. Not any sort of "harm"--allowing lawsuits for "emotional distress" caused by free expression, without restricting it by such a condition, would restrict that right rather severely.

The question is whether the condition of "extreme and outrageous" is compelling enough a reason to justify the restriction... or whether, in fact, it constitutes an illegitimate restriction on free expression. The fact that the standard requires "harm" proves nothing in this respect.

Yes, it does. The expression has nothing to do with it

Absolutely it does... if the Westboro Baptist Church had intended to offer support for the family and the dead soldier, this would not have happened. The message was crucial to the judgment of harm.

Perhaps what you mean is that the rule does not discriminate: it does not single out the WBC's message for punishment as opposed to all others. That is true, but it is immaterial. Some messages are, objectively, more offensive and distressing than others; they may still need to be said.

(At a funeral? But if we are close-minded, if we have blinded ourselves to the truth, as the WBC maintains, it may be absolutely necessary for us to hear the truth at a place where it will have maximum impact... to restrict the range of the public forum so is to restrict something of its efficacy as well. You may think that such a cost is worth it, and I might agree, but not on the basis of this restriction somehow being "irrelevant" to freedom of expression.)

and there are no restrictions being placed. Phelps can spread his message all he likes. There are no restrictions on what that message can be.

No, but there are restrictions on how he can express it, and you have already granted that restrictions on means can also be restrictions on freedom of expression.

Of course, there is no ban here

What difference is there between paying a fine as a consequence for an act of free expression and paying damages as a consequence for an act of free expression?

I'm not asking for the legal distinction... I want to understand what difference it makes in terms of restricting freedom of speech. Because to me it seems clear that both constitute "punishment" of a sort for the acts, and both serve as a pretty strong disincentive to continue engaging in them.

The First Amendment recognizes many limitations on free speech without jettisoning the idea altogether. You cannot defame, you cannot scream "fire" in a crowded theatre, etc.

Right.

My point is simply that in a substantive sense this does constitute a restriction on free speech--legitimate or otherwise.

This may seem "trivial" and "pedantic" to you, but in fact it is neither--because until it is acknowledged that what we are dealing with is a restriction on free expression, we cannot argue in any meaningful sense about the legitimacy of such a restriction (or consider what the proper standard is at all).

The Supreme Court has recognized that the tort of intentional infliction of emotional distress could have a chilling effect on speech and have therefore limited its applicationin cases involving public figures -- just as they limit defamation cases involving public figures.

Yes, and this is exactly the kind of consideration we could never talk about if it is denied that this kind of restriction constitutes a limitation on free speech.

For if it does not, then there is no reason whatsoever to limit the standard's application to public figures on the basis of protecting free speech.

Thank Parliament we have laws against hate speech and incitation to violence in Canada. You guys ought to get some for yourselves, too.

I have to disagree. We do have laws against inciting violence, and I agree with those. I do not, however, think we should have laws against "hate speech."


except the harm is in the content of the speech. the harm in question could not have occurred except through the speech that was engaged in. no speech, no harm. different content to the speech, different (quite probably 'no') harm.

The fact that the harm would not have occurred without the speech doesn't mean that it was the content of the speech - the intended message itself - that caused harm. Phelps and co. could certainly spread their message without targeting specific individuals and intentionally causing them emotional harm.

and it is trivially true that this is a state-sanctioned restriction on allowed speech.

No, it isn't. No speech is being restricted. The exact way the message is spread can make the person doing so civilly liable, but neither the speech nor the content thereof is legally restricted.

taking off from S's earlier hypothetical, we can easily imagine that the rules of what constitutes harm are changed to allow 'i didn't approve of your anti-government protest' to count. this then allows anyone to successfully sue for the 'harm' of seeing an anti-government protest. in what way would this not be a government silencing of speech? the only way i can see it is if we are using 'silencing' in the strange way that M apparently was (though they continue to deny doing so).

We can imagine that, but it would be an altogether different issue, as it would (a) actually target certain viewpoints and (b) remove the requirement of intentional infliction of harm.


If the simple fact of "harm" distinguished free expression from something else, then any kind of offensive, distressing, annoying, or troublesome expression could be challenged... all of those cause "harm" of a sort, because harm at its root is subjective.

Hence the reason that, in such case, the bar for "harm" is set very high and the additional requirement that said harm be intentional is included.

Harm is the distinction here, but the requirements for that which will be considered harm are difficult to meet. .

Only for certain kinds of harm... perhaps if the pool is negligently placed and as a consequence someone falls into it and drowns.

Not if it offends someone.

And you can't sue for speech and win if it simply offends someone either.

But this case is more like me pushing someone into the pool knowing that they cannot swim. One could not argue that I did not intentionally target them and do something that was meant to harm them.

No, they're not, because the government is smart enough to realize that standard would be absurd.

Neo Art gave us the standard earlier in the thread: it applies only to conduct that would be judged "extreme and outrageous" by an average, reasonable person. Not any sort of "harm"--allowing lawsuits for "emotional distress" caused by free expression, without restricting it by such a condition, would restrict that right rather severely.

In other words, you are repeating exactly what I have been saying - the the bar for proving harm in such cases is set very high. It doesn't change the fact that harm is the distinction - that the person bringing the case must prove that they were harmed.

Absolutely it does... if the Westboro Baptist Church had intended to offer support for the family and the dead soldier, this would not have happened. The message was crucial to the judgment of harm.

The message they are intending to convey - by their own admission - is the idea that God hates America because we allow homosexuals to live here. That is the content of their speech. Neither this family nor this dead soldier were in any way crucial to that message. None of this would have happened if they had not targeted this family and this soldier in an attempt to inflict harm upon them.

No, but there are restrictions on how he can express it, and you have already granted that restrictions on means can also be restrictions on freedom of expression.

Only if those restrictions are unreasonable, with no compelling interest. Restrictions on how and where large protests take place - that they must register with the appropriate law enforcement, etc. are not infringing on freedom of expression. If, on the other hand, the restriction were "You can't protest anywhere within the city, ever," that would be a problem.

What difference is there between paying a fine as a consequence for an act of free expression and paying damages as a consequence for an act of free expression?

It is the difference between doing something criminal and doing something that is legal, but has the potential to harm others - the difference between being punished simply for the act of speaking vs. being held responsible for harm you have caused.

As an analogy, it is the difference between paying a fine simply because I built a pool and paying damages because I intentionally built that pool in such a way that it harmed someone.

All debates involving deductive argument can be hypothetical debates, because if we are applying a general principle ("As long as a private individual initiates it, it isn't really a government restriction on free speech") to a specific case ("A private individual initiated the suit against Fred Phelps; therefore, it was not a government restriction on free speech"), we must accept the application of that principle to other cases where its condition would apply. That follows simply from the law of non-contradiction.

For this reason, it makes perfect sense to bring up hypothetical cases, even in discussion of a particular case... if the principle leads to inappropriate or absurd conclusions when applied to them, it must be modified or rejected, which in turn might affect our judgment of the case at issue.

How does any of this justify wasting people's time with bad arguments based on factual errors, as FS has been doing?

His so-called hypotheses depend entirely on a completely wrong notion of how the law works and who/what agency is at work in different kinds of cases. He uses language fuzzily (such as vague references to "the state"), and when challenged keeps moving the goal posts by claiming that, no matter what anyone thinks his words might mean, they actually meant something else. Not to mention his total failure at any point to simply come out and state his position and/or opinion, or in any way try to tell us what the hell he is talking about. He is not debating this issue at all, and, frankly, neither are you.

well, by your own reasoning you should be. remember that according to you i never presented a sensible argument at all. thus we must believe that either there actually was a plot to be grasped in my posts, or S can make sense of the senseless.
When did I suggest he was making sense of anything, or that he was making any more sense than you? Bullshit artists always claim to understand each other; it doesn't make their arguments anything but worthless.

But that aside, you have taken a thread about a particular lawsuit and done your best to utterly destroy the focus of it. You muddied the argument with erroneous and unrealistic statements. You have refused to state your point outright, creating confusion about what the point or the topic really is. When challenged by others, you simply ignored them, and instead, you have settled on attacking me with remarks that are nothing but digs and jibes against me personally and not at all about the thread topic. Either discuss the topic or don't, but whatever, leave me the hell alone. I'm not interested in your "exasperated and condescending" bull.

I'm not going to play your little game anymore. Any post you direct toward me that is (a) a repetition of something I have already addressed and/or (b) not about the thread topic, will be ignored by me.

You and FS both keep trying to shift the discussion to suggest that the jury in this case ruled on the content of the speech and therefore, since the courts are government entities, they are restricting free speech. However, the jury didn't rule on any such thing. They ruled on the harm inflicted upon another citizen, finding, not that Phelps' message or speech were illegal or unacceptable, but instead that he intentionally harmed another person, and is thus responsible for said harm.
To make clear my objections to FS and Soheran's arguments, I'd like to list the various errors that they both have been making throughout their domination of this thread:

1) What you mentioned above. In every instance, they have insisted on conflating action with speech in a way that the actual jury decision did not. Because their argument is wrong on the facts of what the jury in this case did AND on what free speech is under the law, their argument has no merit. Because it is based on errors, it itself is erroneous.

2) They have also insisted on characterizing this civil case as an act of government designed to silence Fred Phelps in violation of his First Amendment rights. Again, they are wrong on the facts, and this has been pointed out to them again and again. Civil law is action by the people, not the government, even though the government, via the courts acts as the people's intermediary. But it is still not an act of government, and this case creates no precedent or other means by which to prevent Phelps from doing the same thing again. Therefore he is not silenced, and no one has tried to silence him. We can see this easily by just observing Phelps himself, shouting in the streets, not silenced in any way. The only way FS and Soheran can keep up this show of theirs is by flat-out ignoring the basic fact of Phelps' non-silenced condition.

3) They have also been trying to claim that this case creates undue pressure on Phelps by creating a threat of lawsuits so oppressive as to have the effect of silencing him by fear. This is nonsense for several reasons, all of which have been explained several times: First, this case does not create any precedent for any other case. Second, there are many avenues of public expression that Phelps can use that are entirely safe from lawsuits of any kind, so even if he did fear getting sued again, that would not silence him. And third, the supposed fear has obviously not manifested itself because Phelps is still speaking in public.

4) Finally, after having their factual errors pointed out to them several times, they tried to claim that they were merely arguing hypotheticals. Leaving aside the fact that they never let anyone know they were doing that before, it still does not save their arguments, because they are claiming to base their hypotheticals on a real situation, yet their grasp of that real situation is obviously wrong. So their hypotheticals cannot hold together. For this reason, both -- and FS particularly -- have switched from actually trying to counter the counter-arguments to merely gainsaying whatever anyone else says to them.

My position on THE TOPIC is this: This suit sends a clear message that harrassment of individuals is not protected speech under the First Amendment, and that, no matter what the protester(s) message is, if their actions amount to harrassment, they may be liable for harm done to the targets of the harrassment. To me, this is entirely reasonable, and I applaud the decision.

Right.

My point is simply that in a substantive sense this does constitute a restriction on free speech--legitimate or otherwise.

This may seem "trivial" and "pedantic" to you, but in fact it is neither--because until it is acknowledged that what we are dealing with is a restriction on free expression, we cannot argue in any meaningful sense about the legitimacy of such a restriction (or consider what the proper standard is at all).

Yes, and this is exactly the kind of consideration we could never talk about if it is denied that this kind of restriction constitutes a limitation on free speech.

For if it does not, then there is no reason whatsoever to limit the standard's application to public figures on the basis of protecting free speech.

Meh. What we have here is a failure to communicate.

You and FS are talking about free speech in the hypothetical, absolutist sense of the word. Under that standard laws against soliciting murder also impinge on free speech. There is no such "free speech" allowed in any country in the world, nor has there ever been such "free speech." It is a purely theoretical construct.

Others discussing this issue have used "free speech" in a more realistic and constructive way to reflect the meaning of the First Amendment. In that sense, holding Phelps liable for intentional infliction of emotional distress is not necessarily an impingement of "free speech."

There is a world of difference between the two meanings and I think FS has been deliberately conflating them. While the first meaning can be interesting in the abstract, it has little to offer reality.

EDIT: On second thought, I'm being a bit harsh. I do think there is something worthwhile in recognizing limits on absolute speech as such. What I don't think is productive is acting as if apples and oranges are the same because they are both fruit.

But this case is more like me pushing someone into the pool knowing that they cannot swim.

No, it isn't.

The Westboro Baptist Church is not drowning anybody, and we have very good reasons to be much less concerned for the "harm" caused by speech than for the harm caused by physical violence like pushing someone into a pool.

In other words, you are repeating exactly what I have been saying - the the bar for proving harm in such cases is set very high. It doesn't change the fact that harm is the distinction - that the person bringing the case must prove that they were harmed.

Yes, but this wasn't what we were arguing about. We were arguing about whether or not this restriction constituted a restriction on free speech--because if it does, it must be justified as such.

You maintained it did not, because it focused on the "harm" aspect instead of the "content" aspect. I maintained that this distinction is irrelevant, that regardless it constitutes a restriction of free speech, and part of the evidence is how narrow the standard for liable harm is here--if it could simply be said that restricting harm was irrelevant to free speech, then there would be no reason for having a standard so narrow.

The message they are intending to convey - by their own admission - is the idea that God hates America because we allow homosexuals to live here. That is the content of their speech. Neither this family nor this dead soldier were in any way crucial to that message.

I am against the Iraq War. In the context of this opposition, I have been to a number of anti-war protests. Is this "crucial" to the anti-war message I want to spread? Not really, but prohibiting such protests would still be a violation of my freedom of expression.

Part of the freedom to express one's opinions is the freedom to choose how to express them.

None of this would have happened if they had not targeted this family and this soldier in an attempt to inflict harm upon them.

I'm not sure they have that intent at all. At least, giving the WBC the benefit of the doubt, they could easily claim that their funeral protests are more intended to drive home their message than simply to sadistically abuse people.

That does not, of course, make them any less loathsome, especially considering the content of their message.

It is the difference between doing something criminal and doing something that is legal, but has the potential to harm others - the difference between being punished simply for the act of speaking vs. being held responsible for harm you have caused.

That is not a "difference" at all.

You'd be right if in some sense the speech and the harm you caused were separate actions--but instead, the harm is contained within the act of speech.

As an analogy, it is the difference between paying a fine simply because I built a pool and paying damages because I intentionally built that pool in such a way that it harmed someone.

That's not the relevant comparison.

The relevant comparison would be between paying damages for your harmful intent in building the pool and paying a fine for your harmful intent in building a pool.

You and FS are talking about free speech in the hypothetical, absolutist sense of the word.

FS can speak for himself, but for my part, not really.

Rather, I have been concerned mostly for free speech in the explicitly political context--which would not include shouting "fire" in a crowded theater unless I actually, genuinely thought there was a fire and wanted to warn my fellow citizens.

My point is not, "Well, it's speech, and it's being restricted, so therefore it's a restriction on free speech." My point is more along the lines that we generally have really good reasons to respect politically-oriented free speech--namely that it is crucial to maintaining the pluralism essential to a just and well-functioning democracy--and as a consequence, at the very least it is not obviously wrong or absurd to contest the standard of restriction we have been given on the basis of freedom of speech.

We may, of course, decide that the restriction is "worth it"--but it's worth considering what cost, exactly, its worth supersedes before making that judgment.

Others discussing this issue have used "free speech" in a more realistic and constructive way to reflect the meaning of the First Amendment.

This manner is neither "realistic" nor "constructive", because neither FS nor I have been arguing anything about the meaning of the First Amendment. I never said that this restriction is unconstitutional, or even that its unconstitutionality is disputable in the same way I have maintained that its legitimacy as a free speech restriction is disputable.

The sort of reasoning the courts have used in interpreting the First Amendment may, of course, be relevant, but not the simple fact of their decisions.

Meh. What we have here is a failure to communicate.

You and FS are talking about free speech in the hypothetical, absolutist sense of the word. Under that standard laws against soliciting murder also impinge on free speech. There is no such "free speech" allowed in any country in the world, nor has there ever been such "free speech." It is a purely theoretical construct.

Others discussing this issue have used "free speech" in a more realistic and constructive way to reflect the meaning of the First Amendment. In that sense, holding Phelps liable for intentional infliction of emotional distress is not necessarily an impingement of "free speech."

There is a world of difference between the two meanings and I think FS has been deliberately conflating them. While the first meaning can be interesting in the abstract, it has little to offer reality.

the way they have been using "free speech" explicitly precludes the idea that restrictions against defamation, etc. are limitations on free speech, a fact which you rightly take as obvious. this is essentially the entirety of the issue in the current string of posts, as their usage is fundamentally silly. it is only once they recognize that fact that we could move on to a real discussion about the justness of various limitations.

i have conflated nothing. rather, i have been at pains to be rather explicit about what is going on here.

neither FS nor I have been arguing anything about the meaning of the First Amendment

and i'd like to mention that i find it odd that people keep assuming we have

No, it isn't.

The Westboro Baptist Church is not drowning anybody, and we have very good reasons to be much less concerned for the "harm" caused by speech than for the harm caused by physical violence like pushing someone into a pool.

It's an analogy, darling, not an absolute.

Yes, but this wasn't what we were arguing about. We were arguing about whether or not this restriction constituted a restriction on free speech--because if it does, it must be justified as such

You maintained it did not, because it focused on the "harm" aspect instead of the "content" aspect. I maintained that this distinction is irrelevant, that regardless it constitutes a restriction of free speech, and part of the evidence is how narrow the standard for liable harm is here--if it could simply be said that restricting harm was irrelevant to free speech, then there would be no reason for having a standard so narrow.

The standard is narrow because emotional harm is very hard to prove - intentional infliction of it even less so. The only way to ensure a fair application of the standard is to ensure that it is very narrow.

I am against the Iraq War. In the context of this opposition, I have been to a number of anti-war protests. Is this "crucial" to the anti-war message I want to spread? Not really, but prohibiting such protests would still be a violation of my freedom of expression.

In order to spread your viewpoint to a large audience and make it clear that many share your view, it absolutely is crucial that you gather in large groups and make that demonstration. Keeping you from doing that would directly impact your ability to make your statements and ensure that they were heard.

But going to an individual soldier's funeral and targeting his family for attacks would not be, in any way, necessary for you to spread your message. In fact, it would demonstrate that spreading your message is not your only - possibly not even your main - intent. It would be clear that at least part of your intent was to inflict emotional damage on the family of the fallen soldier.

No one is suggesting that Phelps and co. can't gather in groups as large as they can manage and tell us all how they think God is punishing us for not getting rid of all the homosexuals in the country and show us all how many people support their viewpoint. No one is keeping them from getting their viewpoint out there, and heard.

Part of the freedom to express one's opinions is the freedom to choose how to express them.

...within reasonable limits to either protect the safety of others or allow them to seek redress for harm done.

I'm not sure they have that intent at all. At least, giving the WBC the benefit of the doubt, they could easily claim that their funeral protests are more intended to drive home their message than simply to sadistically abuse people.

And how are they trying to "drive home their message"? By sadistically abusing people, just as they think their God should/does/will. Unless the Phelps' are either completely inhuman or incapable of rational thought, they cannot reasonably argue that they were not targeting specific individuals or that they did not choose funerals as their arena specifically to cause emotional distress. Hell, they pretty much flat out admit that they want to cause distress - that they want us all to be terrified of their version of God who is going to torture us all for eternity for daring to allow homosexuals to live amongst us.

That is not a "difference" at all.

Of course it is. The fact that you fail to acknowledge it doesn't mean it doesn't exist.

No matter how you spin it, the Phelps' are not being punished for their message or for the act of speaking. They are being made to compensate someone they intentionally and maliciously inflicted emotional damage upon.

You'd be right if in some sense the speech and the harm you caused were separate actions--but instead, the harm is contained within the act of speech.

The harm is contained within the act of intentionally inflicting emotional distress. The fact that speech is the carrier for that is not the issue here. The same message could be conveyed without that action and no harm would be done.

You know the statement "Your right to swing your fist ends at my face"? The same principle applies here. The harm in punching someone is not caused by a fist swinging - a person can quite easily (and legally) swing his fist without punching someone. The harm is caused by fist making contact with someone else's face. Likewise, the harm the Phelps' caused was not brought on by their speech or their message. It was brought on by their choice to target and deliberately distress another individual.

That's not the relevant comparison.

The relevant comparison would be between paying damages for your harmful intent in building the pool and paying a fine for your harmful intent in building a pool.

No, it wouldn't. That is the comparison you are trying to make over and over and over and over again - trying to equate fining a person for criminal action with holding them civilly responsible for actual harm caused, but that isn't an accurate comparison at all.

You asked me what the difference was, and I pointed it out. It is the difference between being fined for an action you take that is legal and has caused no harm and being held civilly responsible for an action you take that was specifically intended to harm another person.


Others discussing this issue have used "free speech" in a more realistic and constructive way to reflect the meaning of the First Amendment. In that sense, holding Phelps liable for intentional infliction of emotional distress is not necessarily an impingement of "free speech."

Precisely.

If FS and Soheran really have been using it to mean "you can say whatever you want anytime you want anywhere you want no matter what the consequences," it's completely useless in a discussion like this. It's like calling laws against breaking and entering "restrictions against freedom of movement." Sure, in the absolutist sense you have told someone that they can't actually move anywhere they want any time they want any way they want, but that makes the term essentially meaningless in any discussion of reality.

It's an analogy, darling, not an absolute.

I know. But you are ignoring crucial distinctions.

When it comes to building a pool, it makes perfect sense to restrict the ways we can build it for the safety of others: first, my right to have a pool is unlikely to ever be substantively affected by such restrictions, second, the harm coming to people endangered by it can be quite severe (death), and third, we have no compelling reason to care that much about any individual's right to have a pool.

Not one of those reasons applies to restricting freedom of speech... at least as regards political speech.

The standard is narrow because emotional harm is very hard to prove - intentional infliction of it even less so.

No... "emotional harm is very hard to prove" because the standard is narrow.

Why do you think the standard was made narrow in the first place?

In order to spread your viewpoint to a large audience and make it clear that many share your view, it absolutely is crucial that you gather in large groups and make that demonstration. Keeping you from doing that would directly impact your ability to make your statements and ensure that they were heard.

Right. And along the same lines of reasoning the WBC's protesting of funerals is crucial to getting its views heard--were it not for that sort of action, it would get far less public attention, and its point of view would be far more marginalized.

But going to an individual soldier's funeral and targeting his family for attacks would not be, in any way, necessary for you to spread your message.

In my case, no.

But can you say that it the case always? What if a specific point of view won't be heard unless its proponents engage in that kind of action?

No one is suggesting that Phelps and co. can't gather in groups as large as they can manage and tell us all how they think God is punishing us for not getting rid of all the homosexuals in the country and show us all how many people support their viewpoint.

"It's an analogy, darling, not an absolute."

;)

No one is keeping them from getting their viewpoint out there, and heard.

Their capability to do so is being restricted.

...within reasonable limits to either protect the safety of others

Physical safety? Yes.

or allow them to seek redress for harm done.

I defend homosexuality to a homophobe. He sues, claiming that I have been reckless and my arguments have emotionally distressed him. If I am made to pay damages, is that not transparently a violation of my freedom of speech?

There is a reason for the "extreme and outrageous" condition. You are not thinking this through.

Hell, they pretty much flat out admit that they want to cause distress - that they want us all to be terrified of their version of God who is going to torture us all for eternity for daring to allow homosexuals to live amongst us.

So you grant that the message they want to impart is bound up with the means they use to impart it? Because you have been mostly contesting that notion so far.

No matter how you spin it, the Phelps' are not being punished for their message or for the act of speaking. They are being made to compensate someone they intentionally and maliciously inflicted emotional damage upon.

So? That does not change the fact that their freedom of speech has been restricted. It is the expression of their opinions that caused the emotional damage, not something else.

The harm is contained within the act of intentionally inflicting emotional distress. The fact that speech is the carrier for that is not the issue here.

Speech is always a "carrier"--that is its purpose.

The fact that sometimes it carries messages we don't like, that we might find very distressing--even the fact that the speaker might sometimes disregard these consequences, or deliberately evoke them to better spread his or her message--does not make restrictions in those cases any less restrictions on free speech.

You know the statement "Your right to swing your fist ends at my face"? The same principle applies here. The harm in punching someone is not caused by a fist swinging - a person can quite easily (and legally) swing his fist without punching someone. The harm is caused by fist making contact with someone else's face.

This is a fine example. The crucial point is contained in the quote: "Your right to swing your fist ends at my face." A right is being restricted.

Now, in this case, we probably all agree that my right not to be punched in the face supersedes another person's right to swing her fist. But does my right to avoid emotional distress supersede another person's right to speak her mind? That is a different question entirely, and I would suggest that the answer lies in the simple logical truth that just because something is distressing does not mean it is false.

If we want our society to find truth, to find right, to do what is best, we have to accept freedom of speech even when it is "emotionally distressing", even when it causes harm. Does that mean that in the specific case of funerals we must accept Phelps' right to do what he does? Not necessarily, but it means that to advance such a view is perfectly reasonable... it is not invalidated by a simple consideration of what freedom of expression actually implies, as you have maintained.

You asked me what the difference was, and I pointed it out. It is the difference between being fined for an action you take that is legal and has caused no harm

Wait, what?

First, no one is talking about being fined for an action "that is legal."

Second, lots of criminal actions cause harm.

and being held civilly responsible for an action you take that was specifically intended to harm another person.

In terms of freedom of speech, what's the difference between being held civilly responsible and being held criminally responsible for the same act?

Assuming equality of penalties, how is one less restrictive than the other?

If FS and Soheran really have been using it to mean "you can say whatever you want anytime you want anywhere you want no matter what the consequences," it's completely useless in a discussion like this.

That's not how I've been using it at all. Again, I've used it only in the political context... in which it is a very important right, necessitating high standards of protection, in any democratic society.