Well said but I trust the jury verdict. They are the voice and interpreters of this tort and did their duty. This is about a family and their grief first and religion, or lack of it as WBC clearly shows, plays no part in it for me.
The only problem with trusting the jury on this one is that they were given a question of law to determine. It was left up to them to decide whether the First Amendment applied. No jury should be deciding questions of law, those are to be decided by the judge prior to giving the case to the jury to determine the questions of fact. So if the jury was in fact instructed incorrectly, chances are they will not come to the correct conclusion. The Jury Instruction given on this clearly put the question of First Amendment protection in their laps.
I still think for this reason alone it will be remanded for a new trial with instructions no matter what the outcome, unless WBC wins outright (probably not) in which case it will be remanded for summary judgment. There wasn't a jury verdict based on the proper findings from the proper source. Nor should the jury be interpreting the nature and scope of the tort - again, that is a question of law. The jury is to be instructed as to the law to be applied to the facts they determine, not the other way around. Determining the law and instructing the jury in that law is what the judge is for.
Respectfully, I have investigated over 1000 cases for trial in 30 years. The jury is charged on the law and in this case material fact was the free speech 1st Amendment protection. That is a jury decision as to the facts:
State v. Howell "The jury must beleft perfectly free in reaching a conclusion upon the testimony introduced, untrammeled by any intimidation from the judge as to whether a certain fact at issue has been proved or not"
Concerning the 1st Amendment Constitutional argument and jury charges by a judge:
Norris v. Clinkscales "A judge violates this provision when he expresses in his charge his own opinion upon the force and effect of the testimony, or any part of it, or intimates his views of the sufficiency or insufficiency of the evidence, in whole or in part.
Under the Constitution the force and effect, or weight and sufficiency, of testimony and facts must be left exclusively to the jury, uninfluenced by any expression or intimation of opinion on The First Amendment or any other Amendment.
Right. The jury has full power over questions of fact, of evidence and testimony, weight and credibility. The judge can't influence them in any way over that.
This is different from questions of law. For example, the jury doesn't decide whether an objection is sustained or overruled. They don't decide what evidence is admissible. They don't decide what the law says, they are told what it says and they are to determine the facts exactly as you have described and apply those to the law as they are instructed by the judge in order to reach a conclusion.
What types of speech are covered by the First Amendment is not a question of fact for a jury to determine. It's settled law that is to be determined by the judge and then the jury instructed as to what speech is and is not protected and under what circumstances. They then go over all the facts, evidence and testimony and decide whether those facts as they determine them fit the law as they were instructed.