I agree that my vote for Hillary is not a great analogy, but I think this issue is more complicated than Eugene suggests in this and some of his prior posts. Rowan does not stand for the proposition that speech can be punished whenever the person being spoken to asks the speaker to stop contacting him. It involves the home and sexualy pandering speech. And it creates a mechanism for avoiding future communications, not punishment for continuing contact just because the the recipient asks not not be contacted again. Telephone harassment statutes apply outside the home (to places of business for example) and although I don't know of any cases, I would assume that they would apply to cell phones as well -- which would mean that they apply everywhere. And as Eugene recognizes, they apply to much more than speech with sexual content. Also, telephone harassment is clearly content based. If I call Eugene at 3:00 am to tell him his house is on fire, or a friend needs a ride home and is too intoxicated to drive or any of several other arguably reasonable messages, it isn't harassment. What makes telephone calls harassment is precisely the offensiveness of their message in the context in which it is delivered (e.g. the more neutral or reasonable the message, the greater the repetition before it would be held to be harassment and vice versa.) Nor do I think a speaker's irrational link between his message and the audience being addressed (and the identity of the person being buried) resolves the problem of these protests. Anyone can decide irrationally that another person's suffering or misfortune reflects G-d's just punishment for the wrongs of their country, their religious community, their ethnic group, people who work in the same vocation, etc. If that's all it takes to justify disrupting funerals or tormenting patients in hospitals, if that is enough to establish a connection between speaker and victim, then we are making eveyone fair game for malicious tormentors. As Mark suggests, the speech here is not persuasive speech intended to inform or change the behavior of the mourners (as is true with labor picketing and abortion protests). The mourners are conscripted against their consent to serve as a backdrop for the display of the protestors' vile message. I also do not think that harassment is limited to private circumstances. If that were true, nothing protestors might do to patients trying to enter a medical clinic could ever constitute harassment. Publicly humiliating a person, following them in public to express your contempt for their rleigious beliefs, job, political positions, decision to have an abortion etc. can constitute harassment. It may be easier to establish harassment if it is directed at a person's home, but that does not suggest that it can never occur in a public venue. More to say, but classes to teach. Alan Brownstein
________________________________
From: [EMAIL PROTECTED] on behalf of Volokh, Eugene
Sent: Thu 11/1/2007 9:34 PM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness
It seems to me that this would make "matter of public concern"
even mushier and viewpoint-based than it already is (or perhaps it would
just illustrate the mushiness and potential for viewpoint
discrimination). As best I can tell, the protesters are arguing that
the nation has sinned by allowing homosexuality, or allowing gays in the
military, or what have you, and the death of soldiers is God's righteous
judgment on the country. That's their viewpoint, vile and illogical as
it is.
I take it we'd agree that a demonstration outside a military
funeral saying "God bless American soldiers" is on a matter of a public
concern. So, I assume, is a demonstration saying "President Bush killed
this soldier." So, I assume, is a demonstration saying "Soldiers are
murderers, and deserve to die" (again, reprehensible as such a
demonstration would be). The relationship between this matter and the
funeral of the soldier, who after all had been exercising government
power on behalf of our nation, seems hardly attenuated. Phelps et al.'s
view may be irrational, but the connection between it and the funeral of
the soldier is more "attenuated" or "irrelevant" only because we don't
believe his logic.
The 3 am calls strike me as a rather weak analogy. The problem
there isn't that the relationship between the speech and me is
attenuated, or that the message is irrelevant. If you called me at 3 am
each morning to tell me that my publicly expressed views in some First
Amendment debate are unsound -- assume I'm even a limited public figure
as to that debate -- that would also be punishable, even though the
speech is closely related to me and my public commentary. It might be
punishable under a Rowan-like rationale, especially once I tell you
"stop bothering me," since restricting the speech to me doesn't at all
interfere with your conveying the message to others. It might be
punishable under some rule that bars repeated unsolicited phone calls
during certain hours. But the rationale here would be genuinely
unrelated to any message that I might be conveying, to its supposed
irrelevance to my participation in a matter of public concern, or the
tendency of the message (even coupled with the time, place, and manner
in which it's delivered) to offend me because of what it says.
Eugene
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