Random news pickins, some fresh, some not-so-fresh

[beautifulduckweed]

FDA partially removes head from ass, finally contemplates making Plan B pill available over-the-counter.

(For more reading and a quick spike in your blood pressure, check out the sorry debacle that resulted the last time the manufacturers of Plan B filed to have the pill available over-the-counter.)

Also, ACLU decides to defend Fred Phelps and Westboro Baptist Church, asserting new legislation in assorted states barring picketing at funeral sites violates freedom of speech and religion.

In the "Shouldn't Surprise Anyone" category: Utility companies are giving buckets of dosh to renowned global warming skeptic.

Comments

[paraleipsis.livejournal.com]

Dear ACLU: You don't actually have to pick the most reprehensible clients possible in order for people to believe that you really mean it when you say freedom of speech is for everybody. Everyone in the Phelps clan is a lawyer; there are people who actually need more money and resources in order to present their case, and these are not those people.

[misshepeshu.livejournal.com]

The ACLU takes on the occasional barking mad asshole client to silence the nattering that it's a tool of the godless left, I think--though one would think they'd made the point when they defended the KKK and Jerry Falwell.

I'm also interested in the implications of the lawsuit filed by a dead soldier's father. Among the claims brought up by the suit are intentional infliction of emotional distress and defamation.

Now, there's a long, established history for defamation cases, but the intentional infliction of emotional distress--that one's interesting. Has that been successfully prosecuted before? If there's precedent, then is it possible for, say, a person to sue an emotionally abusive spouse or partner? For kids to sue their parents?

I need to beam my Jay-Signal into the night sky.

[paraleipsis.livejournal.com]

The ACLU takes on the occasional barking mad asshole client to silence the nattering that it's a tool of the godless left, I think--though one would think they'd made the point when they defended the KKK and Jerry Falwell.

But that's never silenced the nattering, only made it louder. If they'd taken on the Phelps case back in the "God Hates Fags" days, it would've been one thing. But they've decided to help him out now that he's best known for protesting U.S. servicemembers' funerals.

There are people who now think, because all they know about Westboro Baptist is the protesting at military funerals, that the Phelpses are LIBERAL wackjobs. No joke, although I can't cite a source off the top of my head.

[theotherjay.livejournal.com]

First, if I may offer an explanation for the ACLU's choice to defend Phelps here: It's true, it does get wearing, after a while, for the ACLU to seem to defend every ultra-conservative wacko asserting a First Amendment right. But I think that their behavior is more subtle than that: The ACLU tends to defend ultra-conservative wackos when the State takes special measures to shut them up. They are probably siding with the WBC now that that group faces an increasing number of state legislatures trying to outlaw its protests by prohibiting protesting at funerals. Such a state law might withstand Constitutional attack (especially in our current Court) as a "reasonable time, place, and manner restriction," and one more hole gets knocked in the First Amendment. The ACLU is rightly extremely allergic to attempts by legislatures to craft or interpret laws with the intent of silencing a specific group's speech, however obnoxious. I do not believe that the ACLU would act to defend the Westboro Baptists from a tort suit.

As far as the intentional-infliction-of-emotional-distress claim: The answer, as alwas, is "it depends." (HINT: The answer to every question you get at law school is "it depends.") Intentional Infliction of Emotional Distress is a real tort, which was invented by the courts to allow plaintiffs to recover when older, conventional claims like assault or battery didn't quite fit. The four prima facie elements of an intentional infliction of emotional distress claim are:
1) Intent (defined as a volitional act, with the purpose or substantial certainty that a tortious consequence would follow from the intended act)
2) Outrageous conduct (by the standards of shocking the sensibilities of the reasonable person)
3) Suffering or severe emotional distress on the part of the claimant
4) An actual and proximate causation between 2) and 3).

Some courts also recognize Negligent Infliction of Emotional Distress, in which the Intent requirement may be met by negligence in the way of most torts of that type. Also, the First Amendment is no defense against such a tort, just as it is no defense against slander or libel suits - the First Amendment constrains only government action (thus my suspicion that the ACLU would not object to a civil suit against the WBC).

Generally, claims of intentional infliction of emotional distress have involved a defendant in some position of power over the plaintiff - clients suing insurance companies, people suing media outlets that printed compromising stories about them, &c. To my knowledge, no one has ever prosecuted such a suit against protesters. However, that does not mean that it wouldn't work. It would depend mainly upon a factfinder's assessment of points 2) and 3) - was the WBC's conduct really outrageous by reasonable-person standards, and was the suffering of the mourners so great as to be actionable. As to the former point, a strong argument can be made that the military funeral protests are outrageous - though I can think of one counterargument: they've become so common that they've ceased to be shocking (how's that for perverted logic?). As for the latter, that might be a harder point for the plaintiffs: usually, these claims involve victims who have been kept in mental torment for long periods of time and denied something tangible, like a family denied an insurance settlement that they deserved, or someone who's lost a job. Since a funeral lasts only a few hours and involves no such tangible benefit, the case is harder to make. However, funerals, especially military funerals, also occupy a revered place in our national culture. The plaintiffs in such a suit could argue that anticipating such a display at the funeral of a slain family member, and having to endure it, constituted severe emotional distress. Realistically, the answer strongly depends upon the jurisdiction, and even the court, in which the claim is heard. A judge and jury inclined to disapprove of Phelps' rhetoric could find against him with minimal stretching of the law; but it could also get dismissed well before the trial stage.

If you think you know the answer now better than you did before, you'd better read this again, but at least now you may be better informed about the question ;-)