It was a good exchange and I concur with Megan. Bill doesn’t know about the fine points of the legal system.

This is the first I’ve heard that Snyder was a “gay Marine”. As a matter of fact, Snyder’s father has said that Matthew was not gay. Westboro Baptist doesn’t know or care whether the soldier whose funeral they are protesting is gay or not. They are only looking for the notariety in order to promote their hate.

Sorry, but Megyn Kelly is right here, and O’Reilly is wrong.

We all agree (hopefully) that the Westboro church is a bunch of bigoted idiots and the soldier’s family are wonderful people who we all feel for. That does not change the legal analysis one iota.

Conservatives are being wildly inconsistent on this point. Last summer, conservatives were rightly upset when President Obama nominated then-Judge Sotomayer to be on the Supreme Court because she would be, to use the President’s term, more “empathetic” towards certain groups. That is wrong; justice is and should be blind. O’Reilly’s entire argument here is that different rules should have applied to the soldier’s family here because the Westboro group is evil. That’s not what our justice system is about.

Megyn is also right about the Court assessing costs against the family. The family had the right to object and to fight that. They blew the deadline for filing that objection. That’s the end of the analysis. The Supreme Court has rightly held that even a death row inmate can lose his right to an appeal (specifically, a habeas corpus petition) if it is filed even one day late. Everybody who practices in the federal appellate courts knows that deadlines are treated that seriously. (As a side note, it was almost certainly malpractice for their attorneys to blow that deadline, but that’s a different issue . . .).

As to the underlying First Amendment issue, I think there’s been a lot of misreporting about this case in some quarters. This is NOT a case about whether a state or locality can place reasonable time, place, and manner restrictions on protests at funerals. The Westboro group was not prosecuted under any such statute (either there was no such statute in place, or they complied with it). Rather, this case is about whether after a protest takes place the person who was being protested can sue the protesters for the tort of intentional infliction of emotional distress. I think the Fourth Circuit’s analysis was right on this point.

Why? Think about the Tea Party protests at the Capitol two weeks ago. There’s been so much debate about whether racial slurs were used, whether anyone was spat upon (intentionally or unintentionally), etc. Imagine for a moment what would happen it the members of the Congressional Black Caucus or Nancy Pelosi could sue the protesters for intentional infliction of emotion distress. I assure you that, unless the First Amendment prohibits such claims, I could file a complaint on behalf of Pelosi & Co. that would survive a motion to dismiss and a summary judgment motion, and would at the very least make it to trial (the outcome of which would likely depend on the luck of the draw of who you get on the jury). What is the First Amendment worth if you can lawfully protest, not violate and statute or regulation, but then get dragged into court and sued for money damages after the fact because the person you were protesting against experienced “emotional distress”?

Finally, one of the big factors that O’Reilly is ignoring is that the Fourth Circuit Court of Appeals is, literally, the most conservative appellate court in the country. It was not a bunch of wild-eyed ACLU liberals that made the decision he is complaining about. I also predict that Justice Scalia, who is the most conservative member of the Supreme Court, rules against the family in this case. (Scalia is also probably the strongest protector of the First Amendment on the Court).

This is an unfortunate result, but that’s what happens when you take a principled view of the law. As Thomas More says in A Man for All Seasons (I’m paraphrasing here), I would give the devil himself the benefit of the law because when the devil turns on you the law is all that you have to protect you.

You leave only one out here: local governments must impose more stringent restrictions on demonstrations at events such as funerals, weddings, organized children events such as Little league etc.

Make the distance factor much larger, sound restrictions on amplification devices and such.

That would be constitutional, wouldn’t it? At least I hope so.

BTW, I also agreed with Megyn’s, and your much better, analysis except for the legal fees to the extent that I understand it which is that the law allows for reimbursement but, although granted to the point of virtual certainty, does not require it.

I wish that if the court had an out to not add that final burden on the boy’s family I wish they had taken it.

Yep, Megyn is right. Though upopular, and the defining cases always are, to preserve our free speech liberty on occasion it is necessary to defend nasty people. The ACLU does that all the time, to protect the edge of lliberty.

Drew, correction to be made, Matthew Snyder was not gay. The Westboro Baptist Church protests all funerals regardless of the deceased’s sexuality.

Okay, having said that, props to Megyn Kelly on that. She was absolutely right, and that really sucks. No, not because this is FOX, but because we are dealing with a horribly disgusting group who has the freedom to do this. Honestly though, an exception should be made with them. At least we know for a fact they won’t get violent, which is good. I just hope the counter-protests won’t be violent, that’s the biggest fear.

Megyn: right. Bill: wrong. That simple. It’s not about what’s right, fair, or anything else. It’s about the law and how the legal system is designed to work. Judges owe nothing more than their judgement of the case against the law as it stands. Period. No detailed explanation required.

Yes, Grammie, you are correct that local governments can always impose reasonable “time, place, and manner” regulations. That would include things like distance, sound amplification, etc.

In this particular case it was undisputed that the Westboro people had complied with all local ordinances and the directions of the police on the scene regarding the proper distance, etc.

And on the costs issue, here’s what happens. If you win an appeal, you automatically have the right to file a “bill of costs.” When you file it, it gets entered automatically by the Clerk of the Court. In other words, it doesn’t even go to one of the judges at that point. If you are the party who lost, once the bill of cost is filed and entered, you have a certain amount of time to file a motion objecting to it. In federal court, that time period is ten days. You can object either to the specifics of the bill of costs (for example, they claim copying costs were $0.15 per page when the going rate is $0.10 per page), or object entirely because, for example, you can’t afford to pay or there are other good reasons why you should not have to.

The problem is that here the attorneys for the family filed that motion late, so the Court never looked at the merits of the case. Again, that may sound harsh, but there have been death row inmates who have been executed without their appeal being heard because they missed the deadline for the appeal by one day. The attorneys committed malpractice; they should have absorbed the costs themselves (my guess is that they would have, but they decided to fight it in the media instead and, to his credit, O’Reilly decided to step in and pay the costs).

I re-read the decision, and there is a great quote in it that is relevant here:

“Notwithstanding the distasteful and repugnant nature of the words being challenged in these proceedings, we are constrained to conclude that the Defendants’ signs and [web video] are constitutionally protected . . . Judges defending the Constitution must sometimes share their foxhole with scoundrels of every sort, but to abandon that post because of the poor company is to sell freedom cheaply. It is a fair summary of history to say that the safeguards of liberty have often been forged in controversies involving not very nice people.”

I couldn’t agree with that more.

Snipzor is right. The soldier was not gay. That should be corrected.

And it makes the Westboro idiots look even worse. Not only are they homophobic bigots, they are homophobic bigots that are so desperate to spread their hate that they protest at the funerals of straight soldiers who, apparently, are going to hell by proxy (in their twisted view).

Thanks again, Atticus.

I just hope you don’t start charging me tuition. :)

Memo to Fox News Channel;
One Megyn Kelly is worth more than a thousand Glenn Becks.

This is why Fox has such high ratings. Here was a frank, hard-hitting discussion on a real constitutional issue, without self-censoring for political correctness or to match the political views of Jeffrey Immelt. Why can’t (won’t may be the better word) the other cable news networks give us this??? Do I really need to hear another story about a sign at a tea party????

Okay, it’s clear that Drew doesn’t know much about the Westboro Baptist Church, although I can’t blame him, I would do whatever is necessary to not know. Everyone should look up Louis Theroux’s mini-documentary “The Most Hated Family in America”, it’s quite entertaining and also very informative. I’d say it sheds new light on this family cult, but you get what you expect.

“Why can’t (won’t may be the better word) the other cable news networks give us this??? ”

Felix–you will see similar debates on MSNBC all the time.

Shootfromthehip:

I have never once seen Olbermann have a guest on who did not agree with him. I don’t watch him every night, so maybe I’ve missed it, but never once. This is exactly the reason why Fox beats everybody and O’Reilly has been on top for so long. He always has credible, articulate people who disagree with him, and he always gives them the last word.

Snipzor says:
April 3, 2010 at 1:11 pm

Perhaps she doesn’t know much about them. I don’t either except what I’ve learned in the last few months or so and even I, a disabled widow on SS, knows that they think every soldier is guilty of whatever it is their sick minds dream up whether they are straight, gay, bi or anything else.

If Drew didn’t know this it seems that a little cursory investigation that should make that apparent to a middle school researcher would have clued her in. Drew has a very sorry history here of very sloppy work as if she only skims the headlines and makes the rest up as she goes along.

This is typical O’reilly playing the moral arbiter. Normally he’s sympathetic to the conservative cause and harsh on the liberal side. Note: He always attacks or highlights the ACLU when they defend unpopular decisions (eg. church/state) but never reports when they defend popular positions eg. 1st amendment. He plays this footsie all the time when attacking “pinhead judges” too when they make decisions he does not agree with.

Megyn Kelly was right here. She was also right in her defense of Goodwin Liu who O’reilly has desperately tried to pain as unfit for the bench because he is not a conservative. This is the view through Bill O’reilly’s lens. He has despotic tendencies.

Megyn Kelly is “Hot” and also right…

Finch: did I say Olbermann? NO.

I said MSNBC.

And you will find these kinds of informed yet entertaining debates between cons and dems ALL DAY LONG on MSNBC, especially on shows such as Hardball.

how refreshing that we don’t see the typical “ACLU BAD!” response from someone on FNC. (After all, the ACLU filed an amicus brief on behalf of WBC in this case.) Unpopular rights are the ones that need protecting the most.

Drew – you need to learn the facts about both Fred Phelps and his band of lunatics/family and the deceased marine, who was hardly gay.

Where is your retraction/correction?

Bill O’Reilly made a fool out of himself yet again by insisiting that a judges be activists – just this one time.

He also has no concept of the loser paying the court fees, which is ridiculous along with his bullying of Megan.

For once I would like to see O’Reilly shut up and concur to those who know more than him – just once would be wonderful.

“I have never once seen Olbermann have a guest on who did not agree with him. I don’t watch him every night, so maybe I’ve missed it, but never once. This is exactly the reason why Fox beats everybody and O’Reilly has been on top for so long. He always has credible, articulate people who disagree with him, and he always gives them the last word.”

KO? No. Rachel Maddow? Yes. Ed Shultz? Yes. Chris Matthews? Yes. Dylan Ratigan? Yes. All those shows have people with opposing viewpoints all the time.

O’Reilly has been on top because he deceives his audience partly by pretending NOT to be a Republican. He clearly is (his denials notwithstanding) and he regularly regurgitates right wing talking points on his show all the time. He does have liberal guests but they are far outnumbered by their conservative colleagues. This gives a false impression to the not so observant viewer that he’s “balanced” & “fair” to the other side but he’s not. The conservative viewpoint always wins out at the end due to this slight of hand. It’s a masterpiece in duplicity. He also never has strong liberal voices on his show to counterbalance his. I would like to see a Bob Beckel segment every week (and more Henican) to counterbalance all the right winger segments (Krauthammer, Ingraham, Dick Morris, Karl Rove, Brit Hume et al) he has weekly.

I personally LOVE The Daily Show’s & The Colbert Report’s spirited political debates. eg. JS v/s John Yoo, JS v/s Gingrich etc. They are much better than 90% of the scripted-talking-point-infested junk on the so called “news” cable networks. I was appalled a few months ago when Dana Perino stated an obvious lie (no terrorist attack on Bush’s watch) on Hannity’s show and he didn’t even bother to correct it. How do you respect analysis from a show when something so demonstrably false is not even challenged by the host?

Drew, you really should do some research before you say a Marine was gay or not. Things like this matter. I wish you’d understand and show some common courtesy.

Would it matter if the marine was gay or not?

Frank, open debate on MSNBC? You must be kidding. Olbermann never debates, or allows any guest on his show who disagrees with him. And Maddow, on the rare occasion when she has a guest who disagrees, uses debates as set-ups, finding the least articulate and intelligent sparring partners. No surprise here, because the real goal at MSNBC is to discredit those who disagree with their liberal agenda, not debate them.

Valkyrie:

I think the fact that he wasn’t gay is important because: (1) it’s accurate; and, (2) it makes Westboro look even worse (if that’s possible) because they’re not “just” homophobic, but homophobic and desperately attention seeking. Not a huge point, it adds something to the story.

incidentally, Westboro also accused Matthew Snyder’s parents of being adulterers, which Snyder’s father vehemently disputes in the original complaint.

Bill O’Reilly’s photo certainly must be next to the word “dogmatic” in some dictionaries.

With the possible exception of Lou Dobbs, I have seldom seen a cable news channel host try to dominate a debate with such bullying tactics and name calling.

There is no question he is an intelligent man, but I also think he is very insecure which might help explain his tactics.

While the Church is not doing anything illegal. It is IMHO that they are in the wrong. Standing outside anyone’s funeral and yelling “God hates fags” etc is wrong regardless of your views.

Drew, was I dreaming or having a senior moment that lasted all day or did you simply erase the factually wrong “gay” with no absolutely no notation?

Wow, didn’t George Orwell do a little something on that tactic with the Ministry of Truth? :)

Mr. O’Reilly is guilty of thinking with his heart instead of his brain. We all do that from time to time and sometimes, it just sux big time to see what people do and get away with under the law. Like Mr. O’Reilly, I believe the people who held up the signs are really bad people, and chances are, had I been there, I would have gotten myself arrested because I often think with my heart instead of my brain…but not before I slapped the crap out of a few of the sign bearers!