1. The Phelps group is doing more than just "arguing" a point of view regarding sin and homosexuality.
2. There is a difference between "saying" "God bless American soldiers" and "Bush killed this soldier." The second clearly is meant to insult. The relevant question is whether, in the context of a funeral, the mourners have to put up with stuff that might offend them, insult them, or harass them at a time of great grief and sorrow. 3. The relevant question ought to be not whether we believe Phelps' logic, but whether the Constitution forbids protecting people at a time of great sorrow and grief from obscene, targeted insult-as-violence. -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 12:35 AM 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 > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Brownstein, Alan > Sent: Thursday, November 01, 2007 2:58 PM > To: Law & Religion issues for Law Academics > Subject: RE: IIED and vagueness > > 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. > _______________________________________________ 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.
