Westboro Baptist Church, the Common Law, and the Limits of Free Speech

So, one of the relatively few truly despicable groups of people in the world now has to pay millions- far beyond its assets- as restitution for one of its "God Hates Fags" protests of a military funeral. I hope this doesn't destroy my libertarian street cred too much, but I'm not exactly getting ready to burn the courthouse down over this one.

Actually, I don't think this case implicated freedom of speech all that much to begin with. The primary claims in the case were for invasion of privacy and intentional infliction of emotional distress (IIED). For the privacy claim, the issue is highly factual, and I don't think the media provides enough facts to make a truly worthwhile evaluation of the claim; in other words, I think you have to trust the jury's fact-finding that this was an invasion of privacy implicating no free speech rights.

But the IIED claim clearly implicates no free speech rights in my view. IIED is an intentional tort that primarily evolved through the common law- it is not a result, by and large, of legislative action and findings, especially in Maryland if I remember correctly. The common law will rarely implicate free speech because it develops on a case by case basis; moreover, common law rules are usually highly fact-dependent, involving consideration of the entire circumstances surrounding the case. In other words, common law rules are usually trustworthy because they avoid one-size-fits-all prior restraints.

Just as important is the fact that the golden rule of libertarianism is that a person should be allowed to do just about anything, as long as they are doing no harm to others. Well, the central point of IIED is that the conduct in question actually causes harm to others. For those without a legal background, to be found liable for IIED, a person must meet several factors- (1) Intentional or reckless conduct, that is (2) extreme or outrageous, (3) resulting in (4) severe emotional distress. Usually, the emotional distress must be so severe as to be medically diagnosable. However, the more extreme and intentional the conduct the smaller the amount of distress required for liability. Either way the central point of the claim is that the defendant intended to cause real harm to the plaintiff. Actions of any stripe that are intended to cause actual harm to another person are actions that libertarians usually find appropriate for punishment.

In this case, I don't think there's any question that protesting the funeral of a private (as opposed to a public) person while also attacking the deceased's character is "extreme or outrageous." There is also little doubt that only a complete moron would think such conduct would be unlikely to cause severe harm to the family of the deceased. In other words- the Phelpses knew or should have known that their conduct was extremely likely to cause very real injury to the soldier's family, and yet engaged in the conduct anyways. Intentional infliction of physical harm implicates no free speech concerns in my view.

This isn't to say that the Westboro Baptist Church is forbidden from running around claiming that soldiers are getting killed because "God hates fags." Instead, it is to say that they are going beyond the realm of speech when they do so within the context of a funeral where grieving friends and family members are present. It's not quite yelling "fire" in a crowded theater- but it's close.