I'm largely (90%?) in agreement with Eugene, but I'd add a slight caveat. I think that some (small?) part of the "offensiveness" or "invasion of privacy" here is, indeed, the mere presence of "strangers" in close proximity to the funeral - an event that, as a matter of social custom, decency, and respect for the dead and their families, ordinarily is confined to those who are in some broad sense "invited guests" who wish to participate in or observe the ceremony.
Compare Frisby on targeted picketing. If my house is the target of picketing, I think that some (small?) part of the offensiveness or invasion-of-privacy concern is that a stranger is persistently standing right in front of my house - even though he is on public property and is not legally trespassing. It bothers me simply that he is *there*; that he's not moving on. (I'd be concerned even if the person carried a blank picket sign or carried no sign at all and said nothing at all.) To this limited extent, in both Frisby and in the funeral context, the harm is grounded in part on an intangible "privacy" concern about the presence of strangers, which might be characterized as a concern about conduct and which is independent of any message. 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] ******************************************* -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 2:43 AM To: Law & Religion issues for Law Academics Subject: Speech and conduct 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. _______________________________________________ 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.
