Of Phelps and Persecution

[Christopher Lund]

The judgment against Westboro and Phelps was $11 million.  Someone said that the jury picked this number to make sure that Westboro loses all its assets.  I don't know whether that's true, but it wouldn't surprise me, and I would expect a sensible plaintiff's attorney to have suggested as much in their arguments about the need for punitive damages here. 
 
The Hare Krishnas and Unification Churches faced similarly devastating verdicts because of IIED and invasion-of-privacy claims brought by private individuals who wanted their destruction, and that reflected how neutral and generally applicable tort rules could combine with jury discretion to be devastingly non-neutral.  If I'm remembering Doug Laycock's Remnants piece right, all of Krishna's land holdings in the United States were put into receivership to secure just one of the judgments.  We've only talked about the Maryland case.  But Phelps is having to defend a number of lawsuits in a number of places.  Sometimes these cases are obvious and deliberate abuses.  Phelps' daughter is being prosecuted in Nebraska for flag mutilation, negligent child abuse, contributing to the deliquency of a minor, and disturbing the peace * all apparently for having her 10-year-old son stand on a flag during a protest.  The district attorney there said, when asked about the potential rights of the Westboro believers, "they don't really deserve the protection of freedom of speech, freedom of religion."
 
Some want to punish Phelps because he went over the line here.  But most just want to punish Phelps, and either don't care about the line or will draw it post hoc to make sure Phelps' actions end up on the unprotected side.  All this is to say that I am much less confident now than I was at the start of this thread that what is happening to Phelps is the product of neutral principles of law.
 
Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
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