A Stitch in Haste

A self-standing comment I left on another blog regarding the $10.9 million judgment ($2.9 million compensatory and $8 million punitive) against the extremely un-Christian Westboro Baptist Church and its soulless leader, Fred Phelps:

People seem to be forgetting that this was not a fact pattern involving prior restraint or a criminal penalty. It was a plain vanilla private tort case alleging well-established, if somewhat ephemeral, causes of action (defamation, intrusion upon seclusion, intentional infliction of emotional distress). The First Amendment therefore plays a minuscule, if any, role.

People are also omitting the fact that much of the lawsuit concerned defamatory statements about the family that WBC posted on its website, and not the protest per se. (The complaint is available here.)

You may have a First Amendment right to defame someone. You do not, however, have a First Amendment right not to be sued for that defamation or for the IIED that results from it.

The far more intellectually coherent critique is the rather high damages. But that's a whole other blogpost.

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Another "whole other blogpost" would be whether the plaintiffs actually made the elements of the underlying torts: defamation, intrusion upon seclusion, or intentional infliction of emotional distress. That's unknowable without reviewing the evidence and testimony presented at trial. But let's keep in mind that civil defendants in federal courts have "end of trial" remedies to prevent patently unjust verdicts, namely the motion for directed verdict, the JNOV and the motion for a new trial. It is unclear whether the defendants made any such motions, though they have vowed to appeal. Stay tuned.