I think Eugene is right. This is, at its core, a content-based restriction on speech. The context, in my judgment, is primarily relevant to three questions: whether the penalty on speech can be justified because of the consequences of the speech, whether the context is such that we want to view this expression as something other than speech (some kind of conduct) or whether we view this as some kind of speech that is not protected by the first amendment. It is never been clear to me which of these reasons explains why certain kinds of expressive activities can be punished as harassment - but clearly it is permissible to punish harassment in certain circumstances. The tort of IIED raises a similar mystery. I'm not suggesting that there isn't an answer that justifies at least some applications of the cause of action. But I don't think courts have told us what that answer is yet.
I would prefer that the situation in this case (and others like it) be resolved by statutory limits on disruptive speech on public property adjacent to places like cemeteries, funeral homes, hospitals etc.. The benefit of a statute is that it can designate the contexts which we consider totally inappropriate for extremely hurtful speech at specific times and places. IIED leaves that question up to the discretion of juries. Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, November 01, 2007 10:13 AM To: Law & Religion issues for Law Academics Subject: RE: Anti-gay church verdict I agree that it is the question -- but it's important to recognize, I think, that this is a core content-based speech restriction case, not just one that is to be judged under the more forgiving Ward v. Rock Against Racism content-neutral time/place/manner standard. ________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, November 01, 2007 8:37 AM To: religionlaw@lists.ucla.edu Subject: RE: Anti-gay church verdict Well, it's a combination of the two. Hustler was a pure content case. Here the content matters, as Eugene says, and no doubt contributed to the size of the verdict. But the time and place and personal confrontation was also essential to the verdict. If defendants had published the same thing in a magazine, as Hustler did, plainly no liability. The question is whether it's different when they disrupt a funeral with the same message. Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>: > 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/ > > > > > > > > "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 > > 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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