Thursday, November 01, 2007
Jury Renders Unto Caesar What is Caesar's
I'm not at all sure that the short-term (indisputable) benefits of this victory will outweigh the long-term costs to our society.
The speech, however hateful, is protected. As Roger points out, the issue is venue and it is on that issue that the apellate case will be determined.
Familiies at a funeral have a resonable expectation of privacy. If speech of whatever nature infringes on that right, the infringement is actionable.
Who presided over the trial? Who is it that will be coming to collect that money? Last I checked, both the sheriff (or US Marshall) and the judge are a part of the government, and it is through their actions that the money will be collected. That makes it "government action" by definition.
The winners of the suit (barring appellate reversal, of course) have the full force of the government behind their desire to be compensated.
"Familiies at a funeral have a resonable expectation of privacy."
That was the theory that won at trial; that theory is not universally held.
The enforcement of basic civility is not (should not be - normative claim) the responsibility of government.
1) Inflammatory speech in a public venue* is protected speech. Neither public nor private actors should be able to infringe upon it on the basis of its content. (Yes, I'm a first amendment absolutist, but that's only a part of it.)
2) Getting your feelings hurt** shouldn't be a cause for legal action. That's true even when, as here, any reasonable person would have his feelings hurt. I have certainly said intentionally hurtful things that I'm perfectly willing to stand by, and I expect I will in the future. You should be able to do the same. (This isn't first-amendment absolutism, this is just an expectation that adults will show some backbone.)
3) This verdict calls down the full power of the state to enforce monetary compensation for hurt feelings. That's wrong. (And this part speaks to tort reform, which I understand to be something of a taboo subject among lawyers.)
It is precisely because of the existence of this sort of jerks that I somewhat regret the criminalization of dueling. Whether the duel is lethal or just a fist fight, the ability to offer a choice between the risk of physical harm and public ridicule has been a useful corrective in the past.
* It is my understanding that the graveyard (and/or the road thereto) is a public venue. I think it would be reasonable to remove such designation from cemeteries, but I don't think that's been done here.
** "Intentional infliction of emotional distress" is lawyerish for "he hurt my feelings and he meant to".
The road to the cemetary is a public space. The grave's a fine and private place."
Unless, you are going to reform civil and criminal law by allowing dueling, don't jump on the tort reform bandwagon. Insurance companies and corporations are the beneficiaries of tort reform. Individuals are not.