Thursday, November 01, 2007

Sticks and stones may break my bones...

...but words might make me money.

When I was little, a common playground chant was "Sticks and stones may break my bones, but words will never hurt me." I guess I should sue the teacher that taught me that one.

The reaction to the judgment against Reverend Phred in the corners of the Blogosphere that I frequent has surprised me. Conservatives who usually react to PC-speak by reminding folks that they don't have a right to not be offended are applauding. Libertarians who are normally fond of pointing out that "Freedom of Speech" is meaningless if the only speech that is protected is uncontroversial are cheering. I find myself more than a little baffled.

I'm not saying that there's not a part of me that's smiling at the outcome, but it's the guilty pleasure part; the part that smiles when a known scumbag takes a late hit in a police pigpile. And that part of me isn't the part of me that I'm proud of, or even the part of me that's right.


Unknown said...

You're missing a point there, Tam.

The tort system has nothing to do with freedom of speech, and ol' Fred can't have his civil rights violated via civil lawsuit. His First Amendment rights shield him from prosecution or harassment by the government, but they sure as shit don't shield him from private lawsuits.

So they found a sympathetic jury, which probably wasn't too hard. Yeah, the award is totally over the top, and yeah, ol' Fred won't ever be able to pay it. Half the Phelps clan has law degrees, though, and you can bet your ass they're going to appeal anyway.

Sure, this is a nuisance lawsuit designed to shut someone up. Big deal--it happens all the time, and for once it hit the right guys. The Phelpses have made plenty of money, and bullied penty of people, by filing similar suits. That's the tort system for you.

They still have their freedom of speech, in the end...they just have to be a little more judicious about how and where they exercise it. And for the record, I'd be just as indifferent about the thing if the target of the suit had been some atheist wacko with a hobby of standing outside a church and hurling verbal abuse at Christians every Sunday for half a decade.

Tam said...

This is a perfect example of the meaningless distinction between civil and criminal justice in a land where the government is the sole provider of both.

Personally? It is for people like Rev. Phred that the code duello existed in the first place.

You don't shout obsceneties at bereaved parents when they can invite you to grass before breakfast.

Unknown said...

I had the same thought just after I typed my first comment. Tort law sucks, but it's better than nothing, since dueling ain't legal anymore.

Like you point out, I'm reasonably certain Phred and his Phreaky Phamily wouldn't be running their yappers if it was legal to slap them with a glove and demand personal restitution at dawn.

Anonymous said...

The Phelps Clan has had their "Free Speech". Nothing in the constitution ever said there would not be consequences. For instance, it is NOT Free Speech to yell "Fire!" in a crowded theater.

The Consequences has now arrived for the Phelps Clan.

Jay G said...

I always thought that folks like Phelps were the reason we had things like silencers and 3-9X scopes.

Oh, wait, did I just type what I was thinking?

Anonymous said...

So, you're saying it would be perfectly acceptable to hit the guy, hard, for what he said, and that it would be all right if the combatants met in an agreed-upon arena, with mutually acceptable seconds and a judge to decide which combatant had won the day.

Let me think, let me think ...

Both parties should agree to meet upon terms, or forfeit, and there should be a heavy social cost for forfeit.

Both sides should have seconds make arrangements for them, and come to terms as to the day and hour of the engagement.

If a killing blow will not be struck (as it rarely was under the old code), then both sides should agree to the composition of the jury and both sides should agree to be bound by the judge's final rule.

Once judgement is made, the conflict should be considered settled, no matter which combatant wins the engagement.


Civil court is Code Duello -- of a modern sort. The only difference is that the retaliatory blow strikes the man's pocketbook, rather than his face.

Anonymous said...

These despicable sons of bitches have been an embarassment to good-hearted solid Kansans for years, and in no way can I find a moral or legal excuse for the hatred and bile they spew. I'm ecstatic to see them finally get a figurative tar and feathering, and am doing a little day-long happy dance here in Wichita.

Rustmeister said...

Yeah, I'm not worried that the First is getting kicked to the curb in this instance.

Fire in a theater = Thank god for IEDs at a funeral, IMO.

Carteach said...

Not a perfect system, but in some way better than the possible alternatives.

Long ago, in a former lifetime, we entered a suit against a doctor. We won. The result was he became un-insurable and was forced out of practice.

When it was over, I remarked to one of our attorneys that they had done a good thing that day. THEY thought I meant money, or his ass out of practice where he couldn't hurt anyone else.

I told him the good thing they did was save his life, and keep me out of jail.

That was the only other recourse we had outside a civil court.

Maybe this court order, if the whacko family takes it seriously, might save the lives of those who would plant them six feet under.

Tam said...

"Civil court is Code Duello -- of a modern sort."

pax, I love you to death, but that's horseshit.

Nowhere in the code duello were the coercive powers of the state employed. The code duelloe was the expression of the ultimate voluntary sanction of society.

You could always refuse the duel, if you didn't mind your money being no good in town anymore. Try refusing a civil court and see what happens.

The coercive powers of the government fuck up every single thing they touch; even Reverend Phred.

Tam said...


"Fire in a theater = Thank god for IEDs at a funeral, IMO.

I presume you can point to the trampled corpse, then?

Les Jones said...

Tam, Phelps wasn't sued for saying objectionable things.

He was sued for forcing his speech on others at a private funeral. If someone comes to my house and screams at me from the street calling the police isn't infringing their right to free speech, it's protecting my right to privacy and property.

If the same guy wants to say inane crap on a blog, that's fine, but his rights stop where mine begin.

There isn't a unipolar right to speech or anything else that trumps all other rights of all other people. The different rights of different parties are frequently in conflict. That family had to bury their dead. Fred Phelps didn't have to protest the burial. He just chose to.w

Anonymous said...

Count on Tam, despite her 'savage' reputation which I do my best to whet, to drag up the level of discourse a notch or two. Is the drag Sisyphean? Only the string will tell.

Pax, that's one fascinatin look into duels and suits, and I'll bet a couple of us are lazy enough to appreciate a link or something so we can read up on it, as you obviously have done. The first state issue I ever voted on was to remove wording that made duellists ineligible for office. They thought it was obsolete. I considered it, well, a matter of honor. My side won. We've been choosing our weapons ever since.

Carteach, I had a similar experience but was not as satisfied. I was shocked to find there is little medical review at the state level. "The Law" relies on civil suits to shoo incompetent doctors out of the state (and into yours). My stated feeling at the time was that I'd settle for one US dollar and a license revocation. I got a lot more than that, but the SOB is still in business. The great wheel doesn't always grind so fine. Have a lottery, and shoot just one a year? Well, so much for my idea of a higher level of discourse.

J.R.Shirley said...

Tamara, here's my answer:

...but, this would have been a proper application of the "fighting words doctrine" (link in my post), and a right-thinking jury and/or judge would not have objected to the Phelps losing a yard or so of skin apiece.

Paul Simer said...

I'm with Les on this one. You would not have seen this result had Phelps been publishing his crap on blogs, or on the radio, or the newspaper.

But if you stood just off my property and shouted nasty things at me non-stop while I was taking out my trash or watching TV in my living room, I'd sue you for harassment.

That's what happened here. From a quote Les gave us:

"Specifically, he charged that they violated his privacy, intentionally inflicted emotional harm and engaged in a conspiracy to carry out their activities. The jury decided in Snyder’s favor on every count."

Yes, the damages awarded were ridiculous, and point out a flaw in the system where particularly high-profile or outspoken (or wealthy) individuals and companies take it in the shorts where a normal entity might get a slap on the wrist. I'm not sure you can fix that.

Paul Simer said...

And J.R.Shirley, saying "my response is at my website, come see!" is an attention-whorish kind of thing to do if you don't have a novel or weren't specifically asked for a response. I went and looked, which is exactly what you were hoping for, but I was underwhelmed. Couldn't you have just commented?

If you want linky love from Tam, do what I do: post adorable pictures of kittens and puppies.

Don said...

I don't feel bad at all. Schadenfreude is cheap entertainment.

The "Code Duello" wouldn't apply to Phelps, unless he has some aristocratic background we don't know about.

And frankly, the "Code Duello" was stupid. It amounted to trial by combat on a personal level. Trial by combat was a moronic way of settling disputes without making even a pretense of making an attempt to find out which side was right and which side was wrong.

J.R.Shirley said...

Mr. Simer, my response was to my friend.

I don't know you.
I don't care to know you.
And I give a good god-damn what
you think.

Anonymous said...

As much as I sympathize with the plaintiff in this case, I was hoping he would lose.

I was so looking forward to going to Topeka and pissing on Phelps' grave under the cover of Protected Speech. (Might have to wait in line, though.)

Almost as good, though, would be the Phelps Klan's financial ruination due to appeals costs.

Paul Simer said...


See, that wasn't so hard, was it? :)

phlegmfatale said...

Yep, I'll bet there'll be quite a turnout on the sidelines at the next Phelps Phuneral.

Anonymous said...

Tam, if you were having a BBQ and I stood on public land adjacent to your home and screamed my head off with 25 of my closest friends, your first reaction would be...

Tam said...

In a perfect world?

I'd ask you to desist. If you didn't, my seconds would call upon yours and we'd meet on the field of honor.

How would it work in your perfect world? Who would you get to carry your baggage?

Hobie said...

Free political and religious speech is a right. Free abuse of others is not. These people used the most sorrowful moments of other people's lives to advertise themselves. They are only saying these things to get noticed. They are sociopaths. Yes, I'm among the cheering crowd.

theirritablearchitect said...

"Tort law sucks, but it's better than nothing, since dueling ain't legal anymore."

Uh, but, but, if we just...change the law you see...we can make it legal.

Oh, please, oh please, oh please...

staghounds said...

Been thinking about this one.

Duelling makes sense only in groups with high social control and the ability to expel. The world in general never was such a place.

Your screaming neighbor is an example. He says #$%^ you and your duel, too.

(He doesn't have to be a screaming neighbor. He can be a plays loud random noise 24/7 from giant speakers so you can't sleep neighbor, a trash dumping neighbor, a refuse to fence in his cattle neighbor, or a sets fire to his leaf pile whose sparks burn your house down neighbor. Or not even a neighbor- an uninsured tourist driver from Azerbaijan who crosses the center line and puts you in the hospital and the Zed in the morgue.)

Maybe he can't duel- maybe he's a blind jackass. Maybe he didn't know the cows got out, but they still destroyed your crop. Maybe he is as sorry as he can be about the fire, or was killed trying to put it out.

But your crop is still destroyed, and your house is still burned.

Maybe he puts YOU in the morgue. With whom do your orphans duel?

And maybe he crossed the line because the tie rod wasn't correctly heat treated. Do the babies have to duel with General Motors?

Each individual stockholder? One duel per share? Or will the board of directors do?

Maybe you are the jackass. Maybe you hate blue, and he paints his house that color. Or you just KNOW that he is the man from Venus who is projecting the Bushallibucheneyhitler thought waves through your tinfoil hat.

Should he have to stand in front of your pistol for that?

What if he's a Buddhist? Do you get to murder him when he irritates you, because he refuses to pick up a weapon?

What if there's no social control? What if he doesn't care if everyone thinks he's a coward?

Duelling is not always a useful, practical, or even possible, way to deal with disputes between individuals.

And they WILL happen. People and their property rub up against each other all the time. We injure each other constantly, from malice, carelessness, and pure unpredictable accident. And often, people disagree about the reason for those injuries.

What we, all of us, after about two thousand years of Roman and English experience, is that we'll let our peers decide, and that we use money to make things right. But that only works if everyone has to submit to the judgement. We'll let a dozen people decide those things- who the jackass is, how much that crop is worth, how loud is too loud.

Tyranny isn't always by government. Sometimes the oppression is by a person, even by a decent careful person of good will. We have to use the power of the state to make one of us do what we all have decided we all must. If the same rules apply only to volunteers, they aren't rules at all.

Otherwise, it's just the rule of the strong.

Anonymous said...

"We have to use the power of the state to make one of us do what we all have decided we all must." That "we" is going to hang you.

You were doing fine right up to there. I say you use the power of the state at the same stage, and with all the moral enthusiasm, you install the barbed personal appendage cited in the post above. Of course, it's much less comfortable, and considerably less effective.

Anonymous said...

"Like you point out, I'm reasonably certain Phred and his Phreaky Phamily wouldn't be running their yappers if it was legal to slap them with a glove and demand personal restitution at dawn."

Nah, instead half the family would be professional duelists instead of professional lawyers.

Needless to say, they've already said they're going to appeal, and appeal, and appeal. In the end, it may cost that entire judgement to defend against the nightmare these nutjobs will likely create.

staghounds said...


So what happens when the person who causes a uniquely personal injury refuses to do what's right?

That was my point about the power of the state. Unless there is some mechanism of compulsion, it's back to pure jungle law.

One of the few justifications for the existence for a state at all. Even if the state is just a hamlet or a family, sometimes we have to force compliance. Not just with torts, but with lots of other things too.

So what's your answer?

How do you deal with a Fred Phelps?

No, I know that answer. How does some dead GI's wheelchair bound mother deal with him?

Anonymous said...

Still mulling this over, but you know it sure seems to me that coercion is coercion.

You want to hit the guy, hard. And you want to make your neighbors hold him in place so you can do it.

"Government" or "society" -- how, exactly, do these two concepts differ?

Tam said...


I guess (and I'm not entirely sure of it in my own head; staghounds has raised excellent objections,) that it comes down to "consensual" vs. "coerced".

Tam said...

NOTE: And I'm not saying that there's no place for tort law. When there are real, measurable damages, both parties can display them in court.

With "sticks & stones" stuff, however, I think the thread of a pistol ball is a better and more ethical deterrent than a lawsuit any day.

theirritablearchitect said...

"With "sticks & stones" stuff, however, I think the thread of a pistol ball is a better and more ethical deterrent than a lawsuit any day."

Well, I think you meant threat and not thread, but I couldn't agree more. It used to be that such comments were kept a bit more circumspect, whether through better upbringing or with the threat of getting one's teeth knocked down their throat when issuing such vile comments as he is wont to do.

Either way, I'm for Phred getting a bit of the old-school medicine force-fed to him rather than getting a simple swipe at his pocketbook in that pussified court of law shit.

Yes, it's the way it'd be settled on the playground, and I'll freely admit that I'm OK with it.

Tam said...

"a simple swipe at his pocketbook in that pussified court of law shit."

Quote Of The Week, right there. :)

Roberta X said...
This comment has been removed by the author.
Roberta X said...

One of the things duelling has to commend it for the rest of us is, when it's over -- it's over. Right, wrong -- like the courts do such a great job at finding that? And they take longer and cost more.

(PS: Proofreader wanted. Low pay, great benefits).

staghounds said...

And to drag this thread back to where they so often go, I've recently been doing a little research on duelling pistols. Artifacts can sometimes surprise us.

One thing that struck me about duelling pistols is how often we see cheats of one kind or another employed- secret rifling, things like that.

Probably the most famous duel in history is that between Burr and Hamilton. The CW is that Burr was the bad killer, Hamilton the saintly victim.

I'm a Hamilton admirer- not just because of our good looks, charming manner, brilliance, and and shared West Indian background. But study of the pistols reveals that he cheated at Weehawken.

I agree that duelling, if accompanied by social cost for wrongful refusal, has a place. It ought to be legal. It effectively is, for the "underclass".

But Phelps is trash, beneath a challenge.

Anonymous said...

It is too free speech to yell "fire!" in a crowded theater, and laudable speech to do so if the theater is actually on fire. O.W.Holmes was of the OPINION that "FALSELY shouting fire in a crowded theater" was not a free speech right, an opinion misquoted by every two-bit censor ever since.And "falsely shouting fire" in that specific case was publishing and mailing pamphlets claiming that the draft is a violation of the 13th Amendment, which it is, on the face of it.

I'd like the whole congregation of Westover Baptist to see Jesus face to face as soon as possible. But this decision is just wrong.

staghounds said...

This civil case has nothing at all to do with free speech! The term "free speech" in law has to do with the First Amendment, which prevents Congress (and by incorporation, the states) from making laws abridging the freedom of speech.

The Holmes quote had to do with giving examples of speech which could be prohibited (or punished) through criminal law. There have always been things which are acts done through words- treason, conspiracy, and fraud for example. These have never fallen into the free speech clause.

The question of the truth of the content of the speech is not an issue in free speech cases. If I tell a Chinese spy the launch codes and targets of our rockets, the fact that the information is accurate is no defense.

Truth is a defense in libel and slander cases, but the Holmes opinion wasn't about one of those. Nor is this case- my understanding is that, anyway.

Mr. Phelps' acts were not criminally prohibited, nor criminally punished.

If I play the Constitution directly at your house all night long at a loudness that prevents you from sleeping, I'll be civilly liable. Not for my speech, but for its results.

If I pipe it so loud as to keep the neighborhood awake, I'll be criminally liable too. Because I'm not "speaking" in constitutional terms, anyway. I'm creating a disorder, using words.

Which Phelps did, too.

Feanaro said...

My opinion: No person should ever be held liable for what they say. Even for libel/slander. But I still think Phelps should get a sucker punch. Why?

Everyone is making this a "free speech" issue when I think it is clearly one of property. Phelps could have said all this at his own home and no one would have cared. Just sad old fruitcake and his incestuous clan of bozarts being fools.

Instead, Phelly was either on cemetary/church property when he was doing "God's" work or outside it. In the first case, it's quite simple. Apply foot the arse and send the Rev flying. It's really much the same if he was outside it. He was using direct influence to annoy people on that property.

If my gardening hat annoys my neighbors, that's too bad. If I wear that hat just to piss them off, tough. I'm on my property, doing nothing to directly influence theirs. If I should start screaming Nazi Vegan propaganda through a bullhorn though, I would be exerting direct influence on or over their property. My soundwaves are trespassing, if you will.

Phelps' shouldn't be liable for saying what he said but for where he said it. He was not invited to the funeral and it wasn't his property. A trip to the hoosegow was in order. Possibly a tort case for some thousands of dollars (plus attorney fees). $10mil though? Ridiculous. If he bothered a funeral without a military man in the casket, he would have gotten off much lighter I think. Not that I blame the jury. He's a slimey conflagration of wacky religion, intolerance, and just plain old mean assholery.

Anonymous said...

Anyone still working this thread? Apologies, I was not hiding; I was all ears on the upstream posts-- yon blogress had me going there.

"Society" vs. "Government": A Very Big Thing in understanding Aristotle's social writing.

In an underlawyered and more ungoverned world, 'we' wouldn't need to go so far as duelling to deal with Phelpsites (I say if he didn't exist, it would be necessary for Heinlein to invent him, just for the sake of the argument). We'd simply do to him, his family and organization, exactly what he does to others. It's not pretty--witness pro vs. anti choice public functions, which never go uncountered--but a gang of amplified screaming protesters surrounding them whenever they come out into daylight would wear on them tellingly. And I don't think the Patriot Riders would be above that, in the long run.

I'm "not above" using either criminal or civil procedure when I'm feeling too lazy for a commando raid. But that is IT: I'm "not above" it, not proud or triumphalist, and certainly not universalizing it to everyone else as a first course of action. Waxing goofy over a tort suit victory is about as attractive as town councils bragging about their block grant quota, or some serial breeder scoring big in Medicaid on their Munchausen-by-proxy child. That's where the addiction comes in. And we've got it, bad.