1) That a narrow content-neutral restriction is constitutional
doesn't mean that a narrower content-based restriction is
constitutional. Compare Carey v. Brown with Frisby v. Schultz, or Saia
v. New York with Kovacs v. Cooper. Or consider a volume limit but only
for concerts that express certain views or use certain words;
unconstitutional, though a broader content-neutral volume limit would be
fine, cf. Ward v. Rock Against Racism.
2) Frisby suggests that one might be able to ban all
demonstrations right in front of funerals; but Madsen's striking down a
ban on residential picketing within 300 feet of a doctor's house (where
Frisby upheld a ban on picketing in front of the doctor's house)
suggests that even a narrow content-neutral restriction on picketing in
front of funerals would have to allow picketing some dozens or hundreds
of feet away.
3) But in any event, the IIED tort isn't limited to funeral
demonstrations -- even if a narrowly focused funeral demonstration ban
is constitutional, it doesn't follow that the broad and vague IIED tort
is constitutional.
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar
> Sent: Thursday, November 01, 2007 9:22 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Anti-gay church verdict
>
> Could we not ban ALL demonstrations at funerals of private people?
> That would be content neutral. And we can ban the greater,
> can we not also ban the lesser? (And you know I hate
> referencing a Scalian
> argument!)
>
> Steve
>
>
> On 11/1/07, Conkle, Daniel O. <[EMAIL PROTECTED]> wrote:
> >
> >
> > Isn't this analogous to Frisby, approving a ban on targeted
> picketing
> > as "content-neutral" even though the "privacy" interest being
> > protected in Frisby was, in reality, linked in substantial
> part to protecting homeowners'
> > from being offended by the content of picketers' speech?
> In Frisby,
> > the Court cited Kovacs (yes, a regulation of loudspeaker
> noise indeed is
> > content-neutral) but also Pacifica, which plainly turned on
> content. See
> > also Madsen and the other, more recent anti-abortion
> picketing cases,
> > also finding prohibitions "content-neutral" when, in
> reality, a good
> > part of the harm being averted by the laws or injunctions
> in reality
> > depended on content.
> >
> > So, yes, the interest and harm in this case in reality are
> linked in
> > substantial part to content, albeit content in the particularly
> > offensive context of a funeral, but I can well imagine the
> reasoning
> > of Frisby and the anti-abortion picketing cases being
> extended to support a "content-neutral"
> > conclusion.
> >
> >
> > Dan Conkle
> > *******************************************
> > Daniel O. Conkle
> > Robert H. McKinney Professor of Law
> > Indiana University School of Law
> > Bloomington, Indiana 47405
> > (812) 855-4331
> > fax (812) 855-0555
> > e-mail [EMAIL PROTECTED]
> > *******************************************
> >
> --
> Prof. Steven Jamar
> Howard University School of Law
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