Re: Ping Jane

Mary wrote:
On Nov 1, 2:32 am, Mike Burke <mbu...@xxxxxxxxxxx> wrote:

On Thu, 1 Nov 2007 01:48:07 -0500, "Don Harstad"

<dhars...@xxxxxxxxxxxxx> wrote:

"Mike Burke" <mbu...@xxxxxxxxxxx> wrote in message
news:qbpii31k5esq0snnksh7420gut3e41p0ge@xxxxxxxxxx

http://www.abc.net.au/news/stories/2007/11/01/2078940.htm?section=justin

This looks like one for the ACLU. As repulsive as this sort of
behaviour is, Isn't this sort of thing expressly protected under the
First Amendment?

Mique

Sorry to impinge on a ping for Jane, but I'll probably be asleep when she
answers. <grin>

So. Could be interesting since we seem to have what is, essentially, a
religious ceremony of burial being interfered with by a different religion
whose purpose is... well, not accepted ceremony.

Indeed. I imagine this one will be appealed all the way, or at least
as far as it's allowed to go.

Popcorn, anyone? :-)

What a situation. Unfortunately, I don't if Phelps and his little
crew of hatebags did anything illegal. Distasteful, disgusting,
inhumane, all sorts of descriptives apply. But illegal? Doesn't
sound like it. Where's John? Francis?

What do you legal beagles think?

Mary


ELF pretty much has it right. This is not a prior restraint situation, to begin with. Still, speech can be protected post facto as well. One major case was Sullivan vs. New York Times, where the Supreme Court protected the press when they write about public figures, provided there is no malice intended. The situation with private persons is different. Traditional libel laws apply and the element of privacy becomes critical to the outcome.

Since this was one of many soldiers, not a public figure, privacy counts. Protesting at his funeral that this is what happens when the military tolerates gays carries the strong message that this person was gay and that he was punished for being gay. That message was published to all attendees at the funeral. So a slander claim could also have been filed.

As to the breach of privacy, a cemetery, unless it is a publicly owned one, is not a public place. So, persons coming on the grounds for a protest, not an intended use of the property, could be trespassers, which helps make a finding of invasion of privacy easier. But also, there is an element of privacy to the ritual itself, and that element has an indefinite circle of exclusion about it. Personally, I would regard this as not the strongest ground, because of the vagueness of it all, but in the circumstances, with the offensiveness of the implications, I think many juries would have no problem overcoming the issue.

The intentional infliction of emotional distress claim is probably the easiest of all. It is almost a prima facie case.

The only question I have is the amount of damages. If I were defense counsel I would have immediately filed a Motion for Remittitur, which asks the judge to rule that the damages are clearly in excess of the amount needed to compensate the plaintiff and therefore to reduce them.


Francis A. Miniter
.

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