What a Free Press is For

I HEARD IN PASSING that a court somewhere had granted an appeal on First Amendment grounds of a wonderful jury verdict against the despicable and odious Fred Phelps and his Westboro Baptist Church congregation in the matter of the family of a fallen Marine. I didn’t pay it much mind because, well — check it out — First Amendment and free speech and all that. It’s an uncomfortable fact of life in a free country that the really hard cases at the margins of liberty involve people worthy of your and my despite. Nazis in Skokie, and the like.

Well, nazzo fast, Guido, as the saying goes. Thursday morning comes the lovely and gracious Ann Coulter.

In an opinion that may have been written by Heidi Montag, a federal court of appeals recently threw out a jury verdict in favor of a father, Albert Snyder, who had sued protesters at his son Matthew’s funeral for intentional infliction of emotional distress.

Solely because Matthew was a Marine, a Kansas-based cult, consisting mostly of members of a single family, traveled to Maryland in order to stand outside Matthew’s funeral with placards saying things like, “God Loves Dead Soldiers,” “God Hates You,” “You’re Going to Hell,” “Semper Fi Fags,” “Thank God for Dead Soldiers,” “Thank God for IEDs” and “God Hates Fags.”

But wait, it gets funnier.

The cult’s leader/father is Fred Phelps, who calls America a “sodomite nation of flag-worshipping idolaters.” Since you won’t read it anyplace else, Phelps has run for public office five times — as a Democrat.

Yes. Right. THAT bunch. As I have observed elsewhere, it apparently never has occurred to these cranks that perhaps God hates Fred Phelps. But that’s almost irrelevent to the story.

And here’s the part where, if the press were doing its job, there is a central fact of which not only you and I, but also the idiot judge(s) who wrote that decision would have been painfully aware, and had that awareness brought front-and-center in our daily thoughts: Congress — nor any legislature — may not make any law barring in advance any particular speech or type of speech, it is true. This is a bedrock principle of our republic. But, equally true is this: all rights bear with them responsibilities. And primary among those responsibilities is that one bear the consequencs of one’s actions.

For example, and has recently been tardily acknowledged by the courts, you have the right to go armed in your own defense. But you must plan for and consider the consequences should you choose to use your arms to prevent your being “carried by six,” for you will inevitably be “tried by twelve.” No, they won’t bury you, but your choices will be tried as matters of fact before a jury of your peers. Be sure what you do with your right is … the right thing to do.

And, yes, one does have the right — pace idiotic conventional wisdom — to shout “FIRE” in a crowded theater. Indeed, circumstances are imaginable in which such utterance would be considered mandatory — to the extent where failure to do so might bring down the full weight and majesty of the law on one’s head. However, if one’s utterance were to cause a panic, with subsequent loss of life in a stampede, rather than the safe and timely exit of the inhabitants of said theater, one might be equally responsible. A cautious, prudent, moderate course, informing the audience, players, and crew of the danger in a manner calculated to elicit the desired response — that safe and orderly exit of the premises — is the desired social end. A free, self-governing people will, in times of extreme peril, bring forth individuals who can tread that path. It is left up to the people, therefor, to govern themselves.

Just so in the case at hand. As la Coulter explains:

Snyder [the father of the fallen Marine] has appealed his case to the Supreme Court, and now the court will have to decide whether the tort of intentional infliction of emotional distress (IIED) can ever exist in a country with a First Amendment.

Unlike many legal concepts, the tort of IIED is not an obscure legal doctrine written in pig Latin. It means what it says: speech or conduct specifically intended to inflict emotional distress. The usual description of the tort of IIED is that a reasonable man viewing the conduct would react by saying, “That’s outrageous!”

The Second Restatement of Torts (1965) defines IIED as conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

As a respected New York judge, Judith Kaye, described it, “The tort is as limitless as the human capacity for cruelty.” Inasmuch as IIED claims are made based on all manner of insults, rudeness, name-calling and petty affronts, the claim is often alleged, but rarely satisfied.

But if a group of lunatics standing outside the funeral of a fallen American serviceman with hateful signs about the deceased does not constitute intentional infliction of emotional distress, then there is no such tort recognizable in America anymore.

Have you heard of IIED in the popular press, or even on the chin-pulling Sunday shows on broadcast and cable TV, or on NPR radio? I’d bet you haven’t. And yet, the stalwarts of those fine institutions would be pleased to inform you, were you to ask, that their job includes inquiry into such matters, as a bulwark of American rights and freedoms. The People’s Right to Know, don’t you know.

And you would be right to call bullshit on them.

Too many times, the reporter — in any medium — tries to pass off a cheap and trite he-said/she-said as a report of the facts, when that is merely the statements of the contending parties. Too often, the actual facts of the matter — which would instantly (in more cases than not) render the words of one party or the other irrelevant — are left to the listener’s or the reader’s imagination. Or prior knowledge.

So I ask you: at what point does the right of freedom of the press carrying with it the concommitant responsibility to speak objective truth, become a mere license? What is the purpose of a free press but to inform a free people? And, while, yes, the right to publish freely includes the right not to publish, who is to judge whether the responsibilities bundled with the right are properly discharged when the press fails to inform the people? Where is the jury of the media’s peers?

Cross-posted at Eternity Road.

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