Eugene's comments have really helped me to think about this issue. I think part of what makes this issue complicated for me (obviously I can't speak for Eugene) is that the protestors are really engaged in two communicative acts.
1. There is the message to the mourners. The core of that message is "We are glad your son is dead." And "G-d punished your son because of America's wrongdoing regarding Gay rights." Here, the language about Gay rights, I think, is largely irrelevant to what makes the protestors speech so horrible. The protestors could be talking about any of a laundry list of America's perceived failings, all of which had virtually nothing to do the dead soldier's mission in Iraq. The core message is "We are glad your son is dead" and "G-d punished your son because of America's wrongdoing." Whatever those messages to the mourners expresses about a matter of public concern is so limited and so overshadowed by the personal invective that is being communicated that I assign it little weight. Maybe this would be a different case if there was some connection between the dead soldier's conduct or the mourners' conduct and the protestors message. But these isn't any such connection. Or to put it another way, whatever reasons there are for distinguishing between matters of public concerns and matters that are not of public concern are not furthered by protecting the communications to the mourners in this case. 2. There is also the message to the general public. Here the message about G-d punishing America because of its perceived support of Gay rights seems more of a matter of public concern. It is related to the country's public culture and law. The problem here, as Rick Esenberg suggested, is that the mourners are being used as props to help the protestors communicate their message. It is the conscription of the mourners and their agony into the protestors' message that is problematic. By analogy, I would concede that racists can express hateful messages about the members of a racial minority and hold a racial group up to public ridicule and contempt under the protection of the First Amendment. I understand the argument that such speech can be described as a matter of public concern. But I am not convinced that this means that racists can publicly harass a black person and publicly humiliate him or her to express their message. I'm not at all sure that they should be allowed to defend their conduct and distinguish their acts from more private speech and targeting (which is more generally recognized to be subject to sanction) by arguing that they are engaging in public harassment of individuals to help publicize their racist message -- which is a matter of public concern. Alan Brownstein -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 11:52 AM To: Law & Religion issues for Law Academics Subject: RE: IIED and vagueness 1. Much as Michael and I disagree, at least our disagreement is *not*, I think, about whether the speech touches on a matter of public concern. My post, to which Michael responds, focuses on that question, and challenges Alan's claim that this speech can be dismissed as not on a matter of public concern. I pointed to Phelps' logic (such as it is) because it was relevant to the public concern question -- Alan's claim that the speech has at most an "attenuated" connection to the fallen soldier, or is "irrelevan[t]" or "largely unrelated" rests on an implicit conclusion that Phelps' logic is mistaken, and that is a conclusion that I think courts evaluating the First Amendment claim ought not draw. 2. Michael seems to be calling for a new First Amendment exception here, but I'm not quite sure what it is. Is it for speech that "clearly is meant to insult," at least "in the context of a funeral" (to be precise, outside the funeral)? Is it just for speech that "might offend ..., insult ..., or harass [mourners]" "in the context of a funeral"? Is it for any speech that is "obscene" (in what sense?) "targeted" (in what sense?) "insult-as-violence" (in what sense?)? Is it only for such speech "in the context of a funeral"? I'd feel more comfortable with various proposed First Amendment exceptions if I had a better sense of just what was being proposed. 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.
