Westboro Baptist Church wins hands-down

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Sep 25, 2009 Westboro Baptist Church wins hands-down

For a week and a half in October 2007, my life was consumed with my defense of the Westboro Baptist Church (WBC) and its pastor before a Maryland federal jury against charges of intentional infliction of emotional distress and intrusion upon seclusion. Each day, I drove to the heart of Baltimore/Charm City for this trial, not once getting the time to enjoy the city and its Bromo Seltzer tower, except for the last day, during lunch while the jury deliberated.

The jury socked the defendants with a multimillion-dollar verdict. The defendants appealed, with Margie Phelps representing the defendants/appellants in the Fourth Circuit, and with an amicus lineup behind them of the ACLU and the Thomas Jefferson Center for the Protection of Free Expression. Oral argument was held December 2008.

Months passed. The waiting became worth it with a hands-down total reversal today by the Fourth Circuit that bars a retrial. Albert Snyder v. Fred Phelps, Sr., et al., ___ F.3d ___ (4th Cir., Sept. 24, 2009).

If appellee Albert Snyder seeks en banc review, I doubt he will get far. For one thing, the Federal Rules of Appellate procedure require a petition for such review to establish that “the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed … and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decisions; or … the proceeding involves one or more questions of exceptional importance…” Fed. R. App. P. 35(b). For another thing, the appellate panel’s opinion — and the concurring opinon, as well — provide compelling grounds why the trial judge should never have allowed this case to go to jury delberations, and it seems doubtful that the full court will disturb the hands-down reversal of the trial court.

I also doubt the Supreme Court will grant certiorari review, if a petition is even filed by Albert Snyder, the appellee. This case was filed in federal court as a diversity jurisdiction case. I doubt that the Supreme Court will see any split in the federal circuits or in the state appellate courts that justifies cert. review, nor any other compelling reason to grant such review.  For one thing, WBC’s approach to demonstrating is in many ways one of the kind, and has not gotten to enough appellate decisions yet to make the Supreme Court see a circuit split nor to want to accept cert.

Protecting free expression often requires defending dark and/or controversial views and actions. It includes defending against cross burning statutes, defending the right of neo-nazis to march in Skokie, and defending the rights of the adult entertainment industry, As the American Civil Liberties Union’s website proclaims: “It is easy to defend freedom of speech when the message is something many people find at least reasonable. But the defense of freedom of speech is most critical when the message is one most people find repulsive. That was true when the Nazis marched in Skokie. It remains true today.”

Today’s appellate victory for the Westboro Baptist Church is a huge victory for the First Amendment and Constitution, and, thus, for all of us.

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