This is a RUSH transcript from "The O'Reilly Factor," April 5, 2010. This copy may not be in its final form and may be updated.
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BILL O'REILLY, HOST: In the "Factor Follow-up" segment tonight: As you may know, "The Factor" is trying to help the Snyder family in its legal action against the Westboro Baptist Church. Last March, these hateful fanatics shouted vile things at the funeral of Marine Lance Cpl. Matthew Snyder, who was killed in Iraq. Matthew was just 20 years old. Now the family sued and won a multimillion-dollar judgment against Westboro, which was then overturned on appeal. The case is now going to the Supreme Court.
Last Thursday, we debated the issue with Megyn Kelly, who said that the appeals court in Virginia was correct in its ruling. But Ann Coulter, also an attorney, disagrees and joins us now from Los Angeles.
All right. So Ms. Megyn basically said look, the statute in Maryland of intentional infliction of emotional abuse is a high statute. The court ruled it didn't get there and precedent is in an appeal. The legal, the loser pays the court costs. And that's why they imposed that on the Snyder family. I disagree on both counts. I know they had — I know they had discretion. The judge could have done anything they wanted on court costs. And I do believe if that's not intentional emotional distress, nothing is. It doesn't exist.
ANN COULTER, CONSERVATIVE COMMENTATOR: Right, right.
O'REILLY: So, as an attorney, give me your point of view.
COULTER: Right. Well, it's not just Megyn. A lot of lawyers are saying this. And I think they're wrong. I think your common sense view of things is exactly what the law is. The law is not an ass, as Charles Dickens said.
The law of intentional infliction of emotional distress is not some new-fangled, you know, invention of the courts. This is a tort that's been around for hundreds of years. We got it from England. It was called the tort of outrage. And the elements of intentional infliction of emotional distress are under the law the following: an intent to inflict emotional distress. That's it. It's not like the law of perpetuities. It's not like, you know, the privileges or immunities clause. It's a very — and it is determined by the trier of fact. What it was described as in England was a course of conduct or speech that would lead a reasonable man to say that's outrageous. There's no specific conduct or speech that is prohibited or permitted because, as a New York court said, the capacity for human cruelty is boundless. So it is determined by the trier of fact.
The Fourth Circuit opinion is completely insane because all it talks about is defamation law. Well, Snyder got the defamation claim thrown out by the judge before the jury even heard it.
O'REILLY: Right, but here's what…
COULTER: So that's not an issue. It's an intentional infliction…
O'REILLY: Right. Here's what tilted me on these three pinheaded judges, two of whom were appointed by George W. Bush. All right, so they're not left-wing loons.
COULTER: Yes they were.
O'REILLY: They said in the opinion while reasonable people can debate the appropriateness of the Westboro protests…
O'REILLY: …reasonable people can debate that these loons are saying God killed Matthew Snyder because the USA doesn't persecute gays.
COULTER: Right, right.
O'REILLY: Reasonable people can debate that?
O'REILLY: What kind of judge writes that?
COULTER: No, you're…
O'REILLY: That tipped me off that these people were looking for an excuse.
O'REILLY: These judges were looking for an excuse to throw it out.
COULTER: Well, that…
O'REILLY: No reasonable person could debate that. Go ahead.
COULTER: Yes, I would like to meet that reasonable man. That tipped me off that their dumbest law clerk wrote the opinion. That was in the concurrence, that particular statement.
What the Supreme Court is deciding in this case, because this is a tort that's been around. And by the way, I've been flipping through the cases of intentional infliction of emotional distress. I have not seen a claim as good as this one. This is at a man's funeral for his son. They specifically traveled to this funeral. They hold vile signs up outside. That is intent. It is foreseeable. They did inflict emotional distress. It doesn't matter that he saw it on the TV later. The emotional distress is there. It's not like they put this in some vile magazine. It's not like they were saying it on the morning zoo program. They were outside a funeral.
And I would remind you here that the Supreme Court has upheld restrictions on speech outside abortion clinics. So are we saying an abortion is a more sacred act than a man burying his son? Is that more sacred under the First Amendment?
O'REILLY: Now that's a very powerful argument you're making.
COULTER: Thank you.
O'REILLY: Very powerful argument.
COULTER: Thank you.
O'REILLY: Is the Supreme Court going to respond to that?
COULTER: I hope so. What the Supreme Court has to decide in this case is can the First Amendment coexist with a tort of intentional infliction of emotional distress. It has for hundreds of years in much less egregious cases, much less clear cases of malicious conduct toward a private individual than in this case. I can give you a lot of other intentional infliction of emotional distress cases…
O'REILLY: Well, if you had to predict…
COULTER: …that I think you wouldn't even consider one.
O'REILLY: If you — look, the case is going to be put before the court in October. If you had to predict, court going to overturn the Fourth and reinstate the $5 million judgment to the Snyders?
COULTER: After the Supreme Court found in a Texas case that states could make sodomy criminal, and then in a Colorado case that they couldn't refuse to give affirmative action benefits to people who have sodomy, I refuse to predict what the Supreme Court will do on anything. But as a general matter if there's a good lawyer arguing it, raising the right cases, the case law is there. And the case law totally supports your position, Bill.
O'REILLY: All right. I appreciate it, Ann.
COULTER: Shockingly enough.
O'REILLY: We're obviously going to follow the case. And the Snyders, we're going to pick up their court costs if that comes to be. If the Supreme Court overturns, then they won't have to pay it. So there you go. Ann, thanks very much.
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