Setting aside all the other factors for now, I hope we could
agree that viewing this sort of picketing as "conduct" is the wrong way
for courts to go. The picketing is offensive precisely because of the
message it communicates. The noncommunicative components (the presence
of people, the fact that they occupy space on the sidewalk, the fact
that they carry signs on sticks) are irrelevant here (unless the
picketing somehow blocked the driveway into the cemetery or some such,
which I don't believe it did).
Treating this speech as conduct works as poorly, I think, as
Justice Blackmun's view in Cohen v. California that "Cohen's absurd and
immature antic ... was mainly conduct and little speech." Whatever the
bottom line, it seems to me that courts should confront the true nature
of what's going on here, and what's going on here is speech that's
offensive precisely because it's speech.
Eugene
Alan Brownstein writes:
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.
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