More importantly, laws should be written to avoid false positives. "Better that ten guilty persons escape than that one innocent suffer."
I agree, but I don't see the relevance. Drawing some kind of arbitrary line might well create false positives, but that's not what I suggested.
"A lot more" isn't saying much. I'll concede that, but it still generally wouldn't hurt me unless there was some truth to it. Even then, there's still a lot of choice in how to react.
Again, sticks and stones. We've raised a generation of children who have never been spanked, so now we have to invent emotional harm.
If you feel you have a choice about how you're going to react to something, then it wasn't really emotionally damaging. If you think this parent would have been able to somehow decide not to be upset by seeing gory pictures of a recently dead daughter with mocking captions, then you're either stupid or massively naive.
basically there should be a default position that you can do (publish, or act) whatever you like, with the restriction that if a reasonable person believes your action is clearly bad for society you should expect to get a kicking for it.
How do you define "reasonable person"?
I can certainly expect retaliation along the same lines, but I don't see why I should expect a legal issue.
Reasonable person is already defined, I don't have to. A reasonable person is the standard for 'prove beyond reasonable doubt', et cetera. For example, a magistrate is presumed to be a reasonable person with the power to make summary decisions (unless an appeal is granted, which is really not that common).
As to your idea of retaliation in kind, that theory of morals has been dead in the water for the last 2000 years, because all it ever does is escalate a minor incident into a major incident and people getting killed.
But seriously... go back and read what you wrote. Why is freedom of speech important compared to the war on terror -- that is, to people actually dying -- but not important compared to a little emotional pain that they'll get over?
It's important in either case. I don't think that an extremist should be able to claim freedom of speech as a defence to (say) telling a suicide bomber how to get near the President. But I don't think the right way to go about restricting his freedom of speech is to pass massively over-the-top acts giving summary powers to a bunch of badly paid, unemployable-in-any-better-job, often racist DHS security people who are even protected from the consequences of their mistakes. The right way is, when you actually need to have a decision (which again isn't that often) you let a reasonable person decide. The reason for the patriot act type stuff is essentially that Bush didn't expect his judiciary to make the decisions he wanted, so he did something that's at best borderline illegal to run around that process.
I just find it difficult to apply this to something like emotional trauma, which humans have a great deal more conscious control over than the state of their skull.
Simple test here, really. If you think you can ignore something that's happened to you, then it didn't really cause much emotional damage. Some things just are not like that - for example, rape really causes very little physical harm, but rape victims are often seriously emotionally damaged. That's not because they chose to be, it's because they couldn't ignore what happened to them. If you don't understand this, you're lucky so far, but someday you likely will understand, perhaps when you have to bury your parents, or your siblings, or your spouse - or if life is exceptionally cruel, your child.