No it is not being regulated just because of the content of the speech. That speech in other places, other times, other means is not banned or sanctioned. People disrupting a funeral even with entirely different words would still be disrupting a funeral. The disruption can be prohibited -- the conduct can be regulated.
This was disruptive. Of course it was more than disruptive and the tort required the physical and the aural and the emotional aspects. But it is still a mischaracterization to call it purely or merely speech content regulation. Or to treat it as if that is all that is going on. Our free speech jurisprudence is neither as consistent nor as rigid as Eugene would like -- and that seems to be the bottom line here -- I prefer more play in the joints here for regulating this sort of thing (and would like to find some way to regulate hate speech more than we do -- though that is even more problematic for reasons often enough discussed -- though I think we could fashion something there involving targeting individuals or groups in ways calculated to cause various sorts of harms, but that is still much tougher than this case). I don't see an appellate court pushing the boundaries of free speech in the direction Eugene wants in this case. Indeed, I hope this one gets appealed because I think we could see some further recognition that society can demand some level of civility even where speech is concerned. I would expect this to be treated ultimately as closer to time-place-manner standard (innumerable alternative means available) than a straight-up content based regulation. Indeed, if one wants to establish the principle of no content-based regulation ever, this is about the worst case one can imagine in which to do it (short of genuine national security disclosures). Steve On 11/2/07, Volokh, Eugene <[EMAIL PROTECTED]> wrote: > 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. > > _______________________________________________ > 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. > -- Prof. Steven Jamar Howard University School of Law _______________________________________________ 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.
