Certainly the claim must have been based on the content of the speech, but it may be a TPM argument that is claimed to make that content actionable. In that regard, I would be interested in knowing how the jury was instructed. Phelps and his merry band once picketed my church in downtown Milwaukee and they are vile in a way that's not safe for work, but the notion of a jury deciding, after the fact, that the TPM of speech was not reasonable is a bit troubling.
If that's not the case and the jury was simply asked to conclude whether this content was so outrageous to be actionable, I'm not sure that it's much better. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, November 01, 2007 10:17 AM To: Law & Religion issues for Law Academics Subject: RE: Anti-gay church verdict Yet surely the claim must have been based on the content of the speech as well as the time, place, and manner. It's extremely unlikely that a jury would find friendly, neutral, or even respectfully disagreeing demonstrating outside a funeral to be "outrageous" enough to create severe emotional distress. So under standard First Amendment doctrine, this is *not* a TPM restriction, any more than the restrictions in Carey v. Brown, Boos v. Barry, or a wide range of other cases were TPM restrictions -- it must be judged as the content-based restriction that it is. Eugene ________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, November 01, 2007 5:02 AM To: religionlaw@lists.ucla.edu Subject: Re: Anti-gay church verdict Tough call. Hustler v. Falwell says that intentional infliction of emotional distress, when based on political speech, requires actual malice. But there the IIED claim was based on the content of the speech. Here, assuming the plaintiff's lawyer made a sensible jury argument, the IIED claim is based on time, place, and manner. They could have said these things, but they could not disrupt a funeral while they said them. A court could plausibly distinguish those cases if it chose. Quoting Joel <[EMAIL PROTECTED]>: > From: Father wins millions from war funeral pickets > http://www.msnbc.msn.com/id/21566280/</horde/services/go.php?url=http%3A%2F%2Fwww.msnbc.msn.com%2Fid%2F21566280%2F> > > > > "The church members testified they are following their religious beliefs by > spreading the message that soldiers are dying because America is too > tolerant of homosexuality." > > > > "Attorneys for the church maintained in closing arguments Tuesday that the > burial was a public event and that even abhorrent points of view are > protected by the First Amendment, which guarantees freedom of speech and > religion." > > > > Any thought on what the appellate court will do? > > > > Joel L. Sogol > > Attorney at Law > > 811 21st Avenue > > Tuscaloosa, Alabama 35401 > > ph (205) 345-0966 > > fx (205) 345-0967 > > [EMAIL PROTECTED] > > > > Ben Franklin observed that truth wins a fair fight -- which is why we have > evidence rules in U.S. courts. > > > > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713
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