I appreciate Dan's point; but I think that if the mere presence
of strangers is a factor here, it's a small factor indeed. If there
were a half dozen people standing on the street corner near the funeral
talking to each other, the attendees to the funeral might be very
slightly put off, but very slightly. If there were people engaged in
labor picketing against the cemetery's practices, they might think it's
mildly disrespectful, but not remotely "outrageous." If there were
people standing with signs saying "Our condolences for your and our
nation's loss," the attendees would likely be pleased, unless they were
a very private sort of people, in which case they might find this a
little tacky or annoying. What makes the behavior allegedly outrageous
infliction of severe emotional distress (or for that matter an
actionable invasion of privacy) is precisely the speech.
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Conkle, Daniel O.
> Sent: Friday, November 02, 2007 6:47 AM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Speech and conduct
>
> 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.
>
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