Snyder v. Phelps -- Petitioner's Brief

The petitioner's brief has been filed in Snyder v. Phelps.  Over at the Volokh Conspiracy, Eugene Volokh has a number of informative posts on the merits of the intentional infliction and privacy claims.  According to Mr. Phelps, the Fourth Circuit's principal error was to give "absolute immunity" to a category of hyperbole that does not make factual claims about the target of the speech.  The brief also relies heavily on the "captive audience" principle, noting that the Court has applied the doctrine outside the context of the home -- most notably in the abortion clinic protest context.

Not surprisingly, petitioner's brief barely acknowledges that the speakers were lawfully in a public place when they engaged in their offensive protest of the Snyder funeral.  For me that is a key factor.  One almost gets the impression  from the brief that the speech occurred inside the cemetery or church grounds (although the brief does finally mention that the Phelps's were 200-300 feet from the church). 

If the jury's verdict is upheld, public protesters may well be chilled from communicating in a manner that the target audience (and the jury) may find "extreme and outrageous."  It is true that Mr. Snyder is a private citizen and did not seek the publicity the Phelps's brought to his son's funeral.  It is also the case that their speech is highly offensive not only to the Synders but to any reasonable person who might view or hear it.  However, to extend the captive audience and privacy doctrines to what is, in essence, a street protest would be a very dangerous precedent.  Unfortnately the Supreme Court started down this path in the abortion clinic protest cases, where it balanced the protesters' interests against the public privacy and tranquility interests of the target audience.  As reprehensible as the speech in this case may be, upholding  million-dollar tort judgments based solely upon public speech activities would be a substantial blow to public protests and to free speech more generally. 

One cannot help but have some sympathy for the Snyders and their plea for respect during their time of mourning.  However, to create a category of "extreme and outrageous" speech that is subject to civil liability would give too much power to juries to regulate speech based on its offensive content.  The same is true for the intrustion upon seclusion claim, which in this case stems almost solely from the speech of the Phelps family rather than any conduct interfering with a recognized privacy interest.  The bottom line, for me, is that regulating public speech and contention of this sort should be accomplished under properly drawn content-neutral time, place and manner laws.  So long as they are in compliance with such laws, even the most offensive speakers are entitled to convey their messages in public.   

Bangkok -- The Aftermath

As reported in the N.Y. Times:

Two months of tension and violence ended with a whimper on Thursday as the last exhausted group of protesters filed out of a Buddhist temple where they had taken refuge, bewildered and frightened, some in tears.


Bangkok Is Tense as Order Returns (May 21, 2010) As they shuffled past a smear of blood on the ground that told of the recent fighting, a line of female police officers in black berets comforted them, touching their shoulders and murmuring: “Don’t be afraid. You’re safe now. Have a safe journey home.”

But it felt, on this morning after a political convulsion unlike anything anyone here has seen, that Thailand’s future was anything but safe.

“It was tragic,” said Anusart Suwanmongkol, a senator who supports the government. “Yesterday was the most tragic day in my memory, in Thai history. Nobody gained anything. Nobody won. The country lost.”

*********

The clashes on Wednesday, along with four years of acrimonious political combat, have exposed rifts and resentments in Thailand that have smoldered under a surface of smiles and a virtue the Thais call “cool heart.”

The country’s divisions and enmities have only deepened. Nothing has been resolved. The battle for power between social classes and between the politicians who manipulate them continues.

 

Puerto Rico Campus Protests

As reported by the N.Y. Times, students have effectively halted the academic calendar on several Puerto Rico campuses through sit-ins, strikes, and occupations. The protests, which have apparently been going on for months, are intended to convey students' objections to certain austerity measures that they say will disparately affect low-income students.  Students are also demanding more transparency in university financing.  Students in California staged similar, although less disruptive, protests on several campuses in response to proposed cuts in state financing for higher education.

Sit-In at Senator McCain's Tucson Office

As the N.Y. Times reported, five undocumented immigrants dressed in caps and gowns staged a sit-in at the Tucson office of Senator John McCain:

Four of the protesters, including three who are in the country illegally, were arrested Monday evening on misdemeanor trespassing charges. The three were expected to face deportation proceedings.


It was the first time students have directly risked deportation in an effort to prompt Congress to take up a bill that would benefit illegal immigrant youths.

Senator McCain had once been a supporter of comprehensive immigration legislation that provided a path to citizenship for those in the U.S. illegally.  That was before he became embroiled in a very tough primary battle.

Government Moves on Thai Red Shirts

As the protests dragged on and the talks fizzled, it was inevitable that the Thai government would move more agressively to end the stalemate.  According to this report in the N.Y. Times, the military has broken through the protesters' barricade in the commercial center of Bangkok. 

The government has shown rather remarkable restraint up to this point.  Still, many have been killed and injured.  As well, the protests have had a substantial economic impact on the local economy.  Businesses have been closed for weeks and the tourism industry has taken a major hit.  Perhaps the protesters should have accepted the deal offered a week or so ago that would have shortened the time frame for parliamentary elections.  One wonders what they will have to show for their efforts once the crackdown is complete.

Violence in Bangkok

The proposed settlement did not hold together.  As reported here, protesters and police clashed after a renegade general who was working with the protesters was shot in the head.  The clashes are now in their third day, and according to reports have claimed at least 24 lives with more than 170 reported injured.  The Thai government, which thus far has generally exercised restraint, has vowed to take a more aggressive posture.  However, aggressive action against the protesters, who began their demonstration two months ago, is not yet a certainty:

Despite the worries that violence would escalate, the government has powerful reasons to show restraint. Officials have held back for weeks for fear of causing a bloodbath — further tarnishing Thailand’s reputation as a business and tourist-friendly country — or of inciting unrest in other parts of the country sympathetic to the protesters.


Rather than forcing a showdown, the military could instead choose to continue to try to divide the demonstrators, hoping that more moderate members will leave the area as they run out of food and water. Over the last several days, the military has set up checkpoints on roads leading to the protesters’ encampment, keeping supporters with new supplies out and checking the identity of anyone trying to enter the area.

 

Egypt's "Emergency Law"

As reported in the N.Y. Times, the Egyptian Parliament has just extended country's emergency law, which gives authorities broad authority to arrest and detain people and to limit free speech and assembly.  Protesters allege that the law has been used to suppress dissent.  They question the purported terrorism-related rationale for the extension:

In an unusual case of public outreach by Egypt’s normally tight-lipped leaders, the government took pains to explain its decision and announced that the emergency law — in place continuously since President Anwar el-Sadat was assassinated in 1981 — would be used only in cases of terrorism and drug trafficking. Officials also said that some provisions of the law would be dropped.


But the concept of terrorism is so broad in Egyptian law and the language in the new measure so malleable, that the government decision was immediately criticized by human rights groups, political activists and independent human rights monitors, who say they expect little to change in a nation that routinely uses the heavy hand of the police and prisons to silence political opposition.

One might think of public space militarization as a matter of degree.  Egypt's emergency law, which is a kind of martial law-light, stands somewhere between Iran's escalated violence and executions and the surveillance and spatial tactics used in the U.S.  

Thai Protest Resolution (?)

The N.Y. Times is reporting that anti-government protesters in Bangkok have accepted a deal that will result in new elections in November.  Some protesters have criticized the deal and may not walk away.  However, this seems as if it will resolve the public contest, which has resulted in 27 deaths and over 1,000 injuries.    

Update (5/12):  The N.Y. Times reports that the deal may not hold after all.

The Grannies

This story in the N.Y. Times describes the ongoing protest on New York's Fifth Avenue by mostly elderly grandmothers of America's wars abroad.  A few years ago, a small group of grandmothers affiliated with the "Granny Peace Brigade" was arrested and charged with blocking access to an armed forces recruting center in Times Square.  The judge, who seemed embarrassed to be presiding over the proceedings, acquitted the grannies.

Why do they stay out there, rain or shine, in a seemingly futile effort?  These comments summed it up nicely:

“The point is to interfere with the routine,” Ms. Heinz said. “As people walk down the street, it has an impact on their consciousness. If it engages them, it’s fine. If it infuriates them, it’s fine.”


Mr. Aubrey invoked Dylan Thomas’s admonition to not go gentle into that good night. “ ‘Rage, rage,’ ” he said. “That’s the way I feel. I have to do something.” Next to him stood James Marsh, 73 — a “granduncle for peace.” He said, “I don’t want to say at the end of my life that I didn’t stand up for peace and justice.”

Another protester, Laurie Arbeiter, invoked words ascribed to the Rev. A. J. Muste, a prominent pacifist who died in 1967. During the Vietnam War, he was asked at a candlelight vigil outside the White House if he truly felt that such actions would alter national policy. “I don’t do this to change the country,” he said. “I do this so the country won’t change me.”

 

Harvey Milk's Bullhorn

As reported in the New York Times, Harvey Milk's bullhorn, which was used to rally protesters in favor of gay and lesbian rights in the 1970s, has become a contested artifact.  From the story:

Of late, however, the bullhorn has been at the center of another type of dispute, one that pits its caretaker, Cleve Jones, a veteran organizer, against an elementary school that bears Mr. Milk’s name, and has some gay activists howling that Mr. Jones has absconded with a piece of their history.


For most of the last decade, the bullhorn — a Fanon Transistorized Megaphone, Model 8S-C — was locked in a dusty display cabinet at the Harvey Milk Civil Rights Academy, an alternative K-5 elementary school in the Castro neighborhood. It also did a recent star turn, however, playing itself in the 2008 film “Milk.”
Now, Mr. Jones, who was given the bullhorn by Mr. Milk shortly before he was murdered in 1978, says he is not so sure that the school is the right home for it, worrying aloud about its safety, its treatment and its relative obscurity in the school stairwell.

Greek Protests Turn Deadly

As reported here, three people were killed when the austerity-related protests in Greece took a violent turn.  Anarchists are being blamed for the violence. 

In mass demonstrations llike this, it is not uncommon for fringe elements to hijack peaceful contention.  This poses a substantial challenge to protest organizers and participants.  The violent turn obviously alters the public narrative.  Reporters will now focus on the casualties rather than the public discontent with proposed employment and social service cuts.  Public support and tolerance for continued protests may decline, as people view the gatherings more as mobs than legitimate assemblies.    

Kent State

Yesterday was the anniversary of the Kent State shootings, a pivotal event in the Vietnam antiwar protest movement.  At least according to this story, the significance of the events of May 4, 1970 may be largely lost on today's college freshmen:    

Fourteen of 15 freshmen interviewed on the campus said they did not feel any connection with the lives of the students who were protesting the United States’ invasion of Cambodia at the time.


The university requires first-year students to watch a historical video of what happened that day and the events leading to it: the violent confrontation between protesters and local police and the burning of the R.O.T.C. building near the Commons.

Freshmen attribute their lack of interest to the time span.

“Our generation doesn’t necessarily really care because it happened so long ago none of us were alive,” said Ethan Moore, a freshman majoring in nursing. “Though it definitely shouldn’t be forgotten because they were people, too.”

 Indeed.

Public Contention Around the World

Lots of protests and demonstrations in the news:

In Bangkok, protesters stormed a hospital looking for soldiers;

In Iran, authorities appear to have repressed a public demonstration by intimidating possible participants;

In Greece, protesters took to the streets to rally against proposed austerity measures;

And here in the U.S., thousands rallied against Arizona's new immigration law and in favor of a comprehensive federal immigration law.