I can be neither with you nor against you

I’m intrigued by this Ann Althouse post that discusses a move to prosecute a number of pretty horrible high school bullies whose harassment may have led the bullied teen to take her own life.  While Althouse raises some great questions that must be considered, I’m mostly caught up by the comments, which quickly descend into an argument on “who’s side do you want to take.”  One commenter in particular constantly insists that he is “siding” with the girl who was bullied, in insisting that the other students should be prosecuted, and several commenters deride Althouse for even asking questions about what actual crime has been committed and what the practical implications of prosecution may be on other cases. 
 
In other words, for many, it’s not about what happened or what should happen, it’s about who was more deserving of your sympathies. 
 
Which brings me to this Silent Majority post on the ongoing case involving a fallen marine’s family’s suit against the dreadful Phelps Group for picketing his funeral.  The case was appealed to the 4th Circuit, which determined that the Phelps group, as distasteful as their message may be, are still entitled to their free speech rights, and a suit against them cannot stand.  As is often the case when a party loses a motion or appeal, the court ruled that the unsuccessful party, in this case the family, must pay the court costs.  (Note: this is different than paying all of the legal fees associated with the litigation, such as attorneys’ fees.  This only encompasses the fees required to bring the suit before  the court.) 
 
Southern man writes:
 This is a miscarriage of justice. The man lost his son in defense of this country and his reward was a group of degenerate reprobates celebrating his son’s death at the funeral. Seeking justice he filed suit and was again rewarded by being ordered to pay the legal fees for this group of morons. Justice is supposed to be blind not stupid. I would implore anyone with the means to donate to this cause.
 Unfortunately, here, the writer is demanding that justice be the exact opposite of blind.  He is asking that the court dismiss this most fundamental American ideal of freedom of speech, and instead choose the side of the party that deserves sympathy, the fallen solider’s family. 
 
I have nothing but the deepest sympathies for this family, and the greatest of admiration for their heroic lost son.  I don’t blame them for filing this suit; I understand why they did so.  The Phelps group are horrible, horrible people who do horrible things, and I cannot blame them for letting their grief and outrage trump their respect for freedom.  But, ultimately, the court must respect the freedom of all people, including those with whom we strongly disagree. 
 
Perhaps it helps to imagine it in different terms.  Let us say that you wrote a blog post, or a letter to the editor if you’re more comfortable with that, which harshly criticized a dead political figure.  Let us say that the family of that figure, outraged that you would demean their dearly departed, filed suit for their emotional pain from your critiques.  Their suit is dismissed, of course, on the grounds that you had and have freedom to state what you wish, even if it is harsh or unpleasant.  Especially if it is harsh or unpleasant.  The court costs must be paid.  Who should pay them?  Unless you chose to represent yourself, you have already been required to pay for an attorney to protect your rights, and you have certainly expended considerable time, energy, and stress over this case.  Should you, who were brough to court against your will, for a charge that was bogus, be required to pay the court costs?  I think not. 
 
Here, perpetrator may be different, the case is not.  The Phelps group, as disgusting as their message is, has a right to speak their peace.  We have a right to criticize them harshly for it.  Conservatives are fond of responding to complaints based on over-zealous political correctness with the admonition that there is no right to not be offended.  This remains just as true when the offense is real, and the offendee is wholly deserving of our sympathies. 
 
I side with Freedom, whoever’s side she winds up on. 
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2 Responses

  1. “has a right to speak their peace” is that the expression? always thought piece…

    anyway. Your reasoning is mostly indisputable. The hypothetical, however, does not ring true. The letter/blogpost vs. picketing funeral just doesn’t feel like it works. There are too many divergences in the situations; location, degree of intrusion, subject of criticism… In fact I’m not sure anyone would give a crap if those people were at home writing a blog. They’d probably have a healthy comment base! A case based on where one can exercise the right would make a much clearer support for your argument.

    • You mised the point of my hypo. It is not that the activities that brought the person into court are similar, it is that in both cases, the speaker (writer) is brought into court and forced to expend considerable time, money, and stress to defend an activity that is protected. I’ve already discussed why the Phelps must be allowed to speak, this is about the fact that someone has to pay the court costs in either situation, and it should be the person who wrongfully (even with good intent), caused them to be incurred.

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