Much of my scholarly work consists of comparing things. Sometimes, as in the subject of my doctoral dissertation, the grounds for comparison are readily apparent: for example, how is Brendan Kennelly’s Antigone alike or different from the Sophoclean original? But of late I’ve found considerable satisfaction in finding connections no one had ever seen before. My most recent conference paper, for example, discussed two plays I suspect had hitherto never been mentioned in the same breath: an early Renaissance Italian comedy and a 1960s Irish domestic drama which happened to share a particular motif.
The two stories I’d like to connect in this essay are the recent Federal Appeals Court ruling in favor of Fred Phelps and the Westboro Baptist Church and the announcement of the imminent retirement of Supreme Court Justice John Paul Stevens—and the ensuing search for a successor. The thread that binds these stories together isn’t, for me, the fact that Stevens’s successor may be called upon to judge an appeal by Albert Snyder, who not only had a judge’s award of $11 million in a lawsuit against the Phelpsies first halved and then overturned, but who was then ordered to pay the Phelps’s court costs. I'll get to what it is in a moment.
In case you missed it, the background for this case is this: Marine Lance Corporal Matthew Snyder was killed in Iraq four years ago. The WBC showed up at the funeral on March 10, 2006 in a small Maryland town (one source says in Finksburg, another in Westminster) waving the all-too-familiar signs about how “God hates fags,” “Thank God for dead soldiers,” and similar endearments. (Here’s a charming photograph of two of the younger members of the Phelps clan and their picket signs outside LCpl. Snyder’s funeral.) According to the Citizen Media Law Project website, the church then posted on its website that Snyder parents had “raised [Matthew] for the devil,” “RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery,” “taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity,” and “taught Matthew to be an idolator.”
Albert Snyder, Matthew’s father, sued Fred Phelps, the WBC, and subsequently Phelps’s two daughters, Rebekah Phelps-Davis and Shirley Phelps-Roper, for defamation, invasion of privacy, intentional infliction of emotional distress, and civil conspiracy. The court dismissed the first of of these charges and part of the second, declaring that “[t]hese comments — as extreme as they may be — they are taken in terms of religious expression. This is not the type of language that one is going to assume is meant as a statement of fact.” (Side note: it would be interesting in this regard to cross-examine someone from the Phelps Klan: “So, either you would like to have your ugly rhetoric perceived as purporting to be factual, in which case you can be sued for millions of dollars, or you can tell me that you’re just a gaggle of crazies looking to get your names in the paper, in which case you’re legally off the hook, but revealed as hypocritical grandstanders. You choose.”)
The remainder of the case went to trial, with Mr. Snyder ultimately winning a $10.9 million verdict, $8 million of which was in punitive damages. This was in October, 2007. In February, an appeals judge, Richard D. Bennett denied the Phelps/Westboro appeal per se, stating that “[t]here was more than sufficient evidence to support the jury’s verdict that Defendants’ conduct before, during, and after the funeral of Matthew Snyder was outrageous, designed to inflict emotional distress upon Plaintiff, and that the intrusion upon the seclusion of Plaintiff and his family was highly offensive to a reasonable person.” The judge also noted that “Defendants cannot by their own actions transform a private funeral into a public event and then bootstrap their position by arguing that Matthew Snyder was a public figure.” That said, he also reduced the punitive damages against the WBC from $2 million to $1 million, against Fred Phelps from $2 million to $300,000, against Rebekah Phelps-Davis from $2 million to $200,000, and against Shirley Phelps-Roper from $2 million to $600,000. That’s still a lot of money.
But we’re not done. The defendants appealed again, and in September of 2009 the 4th Circuit Court of appeals overturned the judgment altogether, basing their opinion on such observations as that the “Epic” posted on the WBC website “utilized distasteful and offensive words, atypical capitalization, and exaggerated punctuation, all of which suggest the work of a hysterical protestor rather than an objective reporter of facts. Despite referring to the Snyder family by name, the Epic is primarily concerned with the Defendants’ strongly held views on matters of public concern.” I’m not sure that hysteria or lack of facility with the language ought to qualify as a defense, nor that we ought to ignore the specifics because the document is largely general, but ultimately there is a legitimate legal argument at play here: that the Phelpsies aren’t guilty of damaging Mr. Snyder or his family if no rational person would believe them. (Of course, no rational person would believe that Barack Obama was born in Kenya, either, but that’s another matter…)
Given the fact that the ACLU filed an amicus brief on behalf of the WBC, a right-winger might be forgiven for thinking the lunatic left was furthering their assault on God and Country by siding with a congregation so hateful that even the likes of Rush Limbaugh and Bill O’Reilly can’t stand them. One might think that, at least, until one realizes that the 4th Circuit is widely viewed as the most conservative in the country, that two of the three judges who unanimously decided the case, Dennis Shedd and Allyson Kay Duncan, were appointed by that well-known leftist George W. Bush, and that the former, a Strom Thurmond protégé, was confirmed only narrowly (55-44) by the Senate, having been vehemently opposed by even mainstream Democrats, largely for his record on civil rights. True, the fact that a Clinton nominee and two Bush nominees agreed doesn’t mean they reached the correct conclusion, but it does suggest, at least, that choosing sides in this dispute is a bit more complicated in legal terms than on the basis of emotionality alone.
The last straw for supporters of Mr. Snyder came last month, when the 4th Circuit ruled that Snyder would be responsible for over $16,000 of the WBC’s court costs; a significantly higher amount is still in dispute. It doesn’t help that Snyder is apparently being charged 50 cents a page for photocopying charges, even for documents not directly relevant to the case. Must be the WBC won’t use Kinko’s because of the name… It does indeed seem curious that the 4th Circuit would weigh in on the issue of court costs prior to the (inevitable) appeal to the Supreme Court without a demonstration of urgency by the Phelpses.
Anyway, there was predictable outrage from all quarters: this was probably the most universally despised court ruling since the Kelo eminent domain case in 2005. No one—not the left, not the center, not the right—thinks this was a good decision. Particularly vocal has been Bill O’Reilly, who offered on his television show on March 30 to “pay Mr. Snyder’s obligation,” arguing that the Westboro protesters “should have been arrested, but our system is so screwed up… that loons are allowed to run wild.” And now the rest of us are left with an extremely difficult dilemma: when Bill O’Reilly and Ann Coulter are on one side of a dispute and Fred Phelps is on the other, who’s to root for? Well, how about the one who's in the right this time?
I find three things in particular interesting about O’Reilly’s commentary. First, he feels compelled to spin off his denunciation of the Westboro “loons” to close with yet another in an interminable series of whines that left-wing crazies don’t get as much notoriety as their right-wing counterparts do. In other words, O’Reilly uses the Snyder/Westboro case primarily as evidence of “hatred of America,” which, in his rhetorical construction, is code for anyone to the left of Jim Imhofe.
Second, I find it interesting that O’Reilly’s outrage came a little late in the game. I don’t recall anything similar from O’Reilly when Phelps and his gang first came to national attention by protesting at the funeral of Matthew Shepard, who was, sloppy ABC journalism to the contrary notwithstanding, murdered simply for being gay. I don’t remember it when theatre-goers attending the national tour of Angels in America (I was one of them) were screamed at by the Phelps mob. I don’t remember it when the cast, crew, and audience of a production at the University of Kansas were subjected to loud, lengthy, and offensive screeds because the undergraduate director of the play in question happened to be the son of someone Phelps couldn’t silence. I don’t remember it even when the WBC picketed a wedding on the KU campus because the ecumenical center at which the service was held had been used earlier in that week for a meeting of an LGBT and friends organization. No, Phelps and his flock are never happier than when confirmed in their self-righteousness by the disgust of everyone else, and they figured out long ago that protesting military funerals—funerals of soldiers who lived in a structure which openly discriminated against homosexuals but didn’t outright persecute them—would be a great away to attract headlines and enemies, the two things these hateful little creatures can’t exist without. And, of course, O’Reilly rose quickly to the bait, defending anything associated with the military with the fervor that only a born-again ex-draft-dodger can muster (Cf. Cheney, Richard).
Thirdly, and most importantly, O’Reilly followed up his initial offer of assistance two nights later, soliciting viewer donations to assist the Snyder family, presenting without comment Albert Snyder’s argument on “Good Morning America” that the WBC’s actions were “insulting,” and arguing that “the Westboro Baptist Church… does have a right to spew its hateful rhetoric, but it doesn’t have a right to be in your face.” I’m not a lawyer, but I do know that the fact that someone is “insulting” or “in your face” is insufficient legal cause to limit freedom of speech. I have studied the Constitution, especially the Bill of Rights, with some care… I don’t recall the “in your face” exception to the 1st Amendment (nor do I remember O'Reilly's invoking that distinction with respect to, say, the Tea Party crowd). There are complicating factors, and there’s much about the case I don’t know, but based on the law and only the law, the WBC's case seems pretty solid.
Of course, what O’Reilly and his brethren on the right are appealing to isn’t a legal argument at all. It’s, well, based on an empathetic response to Mr. Snyder. Certainly we all like him more than we like anyone associated with the Phelps clan, who are among the vilest creatures ever to slither across the planet since the dawn of time. The fact that the jury is still out (literally) on the legality of what the WBC did in Maryland is, to many, irrelevant. What matters is that we feel sorry for the unjust suffering endured by Mr. Snyder at the hands of an evil assemblage of people who intentionally made one of the worst days of his life even worse, and for what? To further their own psychotic socio-political purposes? To attract attention to themselves? Surely not to demonstrate anything that looks like the love embodied in the God described in the Bible they claim to have read. Legalisms and legalities be damned; we just want to whup the hate-mongers up ‘side the head with a 2x4. All of our empathy is reserved for Mr. Snyder.
“Empathy.” Hmm… now, where have I heard that word before? Oh, yeah… it was when the right wing went apoplectic at President Obama’s description of then-nominee Sonia Sotomayor as “empathetic.” “We don’t want an empathetic judge” cried the right. “We want a judge who will (only) interpret the law.” This Wall Street Journal editorial will serve as well as most to illustrate the point. Notice that empathy has migrated in the writer’s mind (interesting that the piece is unattributed) from being a credential, as it was described in the President’s introduction of his nominee, to being “as much or more than reason” a part of judging, in the characterization of the WSJ editorial-writer. I suppose there’s a point there, but it’s kind of a shaky one: that if empathy and reason are both essential attributes of anyone making any kind of decision about anything affecting others (and who would really argue otherwise?), that reason is no more essential than empathy. (N.B., to be fair, Mr. O’Reilly didn’t go down this particular path, confining his opposition to Judge Sotomayor’s candidacy to an active misinterpretation of non-judicial remarks made a decade ago and a little of his signature brand of latent racism and sexism.)
As Dr. Leon F. Seltzer wrote in Psychology Today “as a therapist, I'd always seen empathy as one of the most valuable things I had to offer my clients.” Dr. Seltzer continues, “There's nothing inherent about empathy that dictates a condoning response to that which is clearly wrong, villainous, or evil.” A little later, writing specifically about Judge Sotomayor, he writes, “Certainly to date there's nothing about her capacity for empathy that has been demonstrated to interfere with her ability to carry out her professional obligations. All that might be said is that given certain extenuating circumstances her empathy might incline her to consider making a more 'measured' decision than otherwise. And doing so would, I believe, promote a judgment not simply just, but merciful as well.” And I confess that this sounds to me like a pretty reasonable (Get it? Reasonable?) endorsement of the Sotomayor nomination.
But now the empathy, as it were, is on the other foot. President Obama’s nominee to fill the vacancy created by Justice Stevens’s well-earned retirement will no doubt be criticized for his/her empathy: here’s Tom Fitton posting today on Right Side News: “Obama's statement on the retirement of the arch-liberal Justice Stevens restates the empathy standard without actually using the word ‘empathy.’” Yep, that empathy thing sure sounds problematic. Unless, of course, we’re the ones appealing to it to over-ride the Constitution. Then, it’s a good thing.
La la, how the life goes on.
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