I understand that there is a clear sense in which the protestors comments involve speech on a matter of public concern. But the relationship between that matter of public concern and the family whose son has died and is being buried is pretty attenuated. If the protestors just said "John Doe should rot in Hell," that would not be a matter of public concern. Does adding "Because we think the U.S. is immoral, John Doe should rot in Hell" change the statement enough to make a difference. (By analogy, if I call Eugene up at 3:00 am each morning to tell him to vote for Hillary Clinton, should it be harder for courts to hold me liable for harassment because my statements are a matter of public concern -- indeed they are pure political speech.)
I guess what I am asking is whether the impropriety and irrelevance of the circumstance should influence our conclusion as to whether what is being said is a matter of public concern. If these protestors show up at the funeral of any citizen with similar signs and argue that it is good whenever any American dies because our country does not hate gay people enough, should that alter the analysis? Isn't there a sense that these people are just using the emotional pain they cause and the anger generated by their outrageous activities to gain attention for their message? Should speakers be allowed to use the distress caused to patients at hospitals or mourners at funerals as a way of amplifying their largely unrelated speech "on matters of public concern"? Alan Brownstein -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, November 01, 2007 1:34 PM To: Law & Religion issues for Law Academics Subject: RE: IIED and vagueness (1) How does Hustler teach that IIED is a viable tort, as applied to otherwise protected speech (or at least otherwise protected speech on matters of public concern). True, it didn't hold that IIED is impermissible as to otherwise protected speech -- but did it ever hold that it is viable as to such speech? (2) Defamation requires that a statement be factually false. That's sometimes not easy to define, and often not easy to tell, but it's much clearer than an "outrageousness" standard. (3) I say it again: The Court has repeatedly held that the lower scrutiny applicable to time, place, and manner restrictions is applicable only to *content-neutral* time, place, and manner restrictions. Eugene _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
