A content-based ban on speech isn't a "conduct" ban just because
"speech in other places, other times, other means is not banned or
sanctioned." It's just a content-based restriction rather than a
categorical content-based prohibition. And that it leaves open ample
alternative channels is *not* enough to save it if it's content-based.
See, e.g., Boos v. Barry; Carey v. Brown; and many more.
Moreover, the speakers here are "disrupting a funeral" precisely
because of what they say, as well as where they say it. IIED liability
would surely not have been imposed here if the speakers carried signs
saying "This cemetery is unfair to labor," or "Our condolences to you
and to our nation." So it's a classic example of a content-based
restriction, even if one limited by place; that's no more a permissible
time, place, and manner restriction than is a ban on antiwar
demonstrations in front of government buildings, or antigovernment
parades (while antigovernment billboards are allowed), or profanity on
jackets (if spoken profanity were permitted).
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar
> Sent: Friday, November 02, 2007 4:30 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Speech and conduct
>
> No it is not being regulated just because of the content of
> the speech. That speech in other places, other times, other
> means is not banned or sanctioned. People disrupting a
> funeral even with entirely different words would still be
> disrupting a funeral. The disruption can be prohibited --
> the conduct can be regulated.
>
> This was disruptive.
>
> Of course it was more than disruptive and the tort required
> the physical and the aural and the emotional aspects. But it
> is still a mischaracterization to call it purely or merely
> speech content regulation. Or to treat it as if that is all
> that is going on.
>
> Our free speech jurisprudence is neither as consistent nor as
> rigid as Eugene would like -- and that seems to be the bottom
> line here -- I prefer more play in the joints here for
> regulating this sort of thing (and would like to find some
> way to regulate hate speech more than we do -- though that is
> even more problematic for reasons often enough discussed --
> though I think we could fashion something there involving
> targeting individuals or groups in ways calculated to cause
> various sorts of harms, but that is still much tougher than
> this case).
>
> I don't see an appellate court pushing the boundaries of free
> speech in the direction Eugene wants in this case. Indeed, I
> hope this one gets appealed because I think we could see some
> further recognition that society can demand some level of
> civility even where speech is concerned.
>
> I would expect this to be treated ultimately as closer to
> time-place-manner standard (innumerable alternative means available)
> than a straight-up content based regulation. Indeed, if one wants
> to establish the principle of no content-based regulation
> ever, this is about the worst case one can imagine in which
> to do it (short of genuine national security disclosures).
>
> Steve
>
>
> On 11/2/07, Volokh, Eugene <[EMAIL PROTECTED]> wrote:
> > 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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>
>
> --
> Prof. Steven Jamar
> Howard University School of Law
> _______________________________________________
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