CLS has a very thought-provoking post about the odious Phelps family who are thanking god for dead soldiers at the funerals of soldiers killed in Iraq because it is god's punishment for the US not stoning homosexuals to death. The post is a discussion of the weakness of libertarian principals in allowing free speech carte blanche. One soldier's family sued this sick group and a jury have found for the family under the offence of causing emotional distress.
CLS says;
I don’t want emotional distress to be used easily to stifle the free speech of others. It is too easily abused. Anyone can claim distress and this would hold rights ransom to the emotionally weakest member of a community.
There is no hard and fast definition of what constitutes 'emotional distress'. But left to a jury, if you believe the jury system is the best justice process we have (like democracy as a governance process - not perfect but the best we have), then you may be grudgingly happy for the right to free speech to be tempered with the possibility of a group of your peers subsequently finding the content caused 'emotional distress' and fining the offenders.
The offenders ability to speak is not taken away but they risk paying a price. This may curtail the likes of this very ugly group.
Certainly this is not a risk-free answer (to either the individual or society) but again it may be the best available. We live in a dynamic and evolving world and what works today may not work tomorrow. That's life. And I don't mean that flippantly.
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2 comments:
Yes this is difficult.
However, I don't want to trust juries. Unfortunately, most people do not value on principle the free speech of others.
We should defend the right of anyone to write and distribute leaflets, call press conferences, book halls for rallies and speeches, even verbally lobby elected and appointed state servants. No jury should ever be able to undermine such freedom to speak.
Why though should we not proscribe verbal abuse of private individuals? We don't permit physical abuse, and at times the former is more damaging than the latter. Maybe there is a Libertarian case for tolerating verbal abuse of private persons - I would like to hear it.
Dave Christian
The job of juries is to make findings of fact, e.g. was there emotional distress, did the defendant cause it and were his actions negligent (or whatever the standard is).
The judge's job is to make rulings on the law. This includes deciding the proper balance between upholding freedom of speech and protecting people from emotional distress. The jury would never have been asked to decide on this.
Once the judge failed to throw the case out at the initial stage, the jury was almost bound to find for the plaintiff based on the facts.
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