I agree with Marci about one thing: This was indeed outrageous; the "allegedly" was an inartful way to cover the possibility of IIED applying to several hypotheticals at once ("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"), but I'm happy to say that the allegations were perfectly true here. But as my hypotheticals show, I think, the IIED liability is based precisely on *what is said* in this place. It's possible that a jury might have found IIED even if it wasn't said at the funeral, but was said in a local newspaper ad bought the day of the funeral -- I agree the jury would have been less likely to find IIED there, but the IIED tort is broad and vague enough that no-one can tell for sure. But it's impossible that the jury would have found "outrageousness" if the speech were at the funeral, but was merely labor picketing, or casual conversation among a few people gathered on a corner, or the "Our condolences for your and our nation's loss." Nor -- returning to the thread -- is it proper to discuss the location as a "conduct" issue. The choice of which ordinance to target is just as much a "speech" factor as the choice of what to say. It may be regulable under the Ward standard for content-neutral time, place, and manner regulations; but this is not such a content-neutral regulation. It may be restrictable under strict scrutiny, as Marci suggests, though I don't think so. (I think a content-neutral limit on all picketing in front of a funeral would likely pass muster, by analogy to Frisby v. Schultz, if it's limited to speech in front of the funeral; but, as I said, the IIED tort is not such a content-neutral law.) But any restriction on this should be judged as the speech restriction that it is, not as a "conduct" restriction. Eugene
________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Saturday, November 03, 2007 6:38 AM To: religionlaw@lists.ucla.edu Subject: Re: Speech and conduct I strongly disagree with Eugene here. It's not the speech per se, but rather the location of the speech that is outrageous. And this speech in its chosen location in particular is not "allegedly" outrageous, but rather outrageous on every meter known to civilized individuals. Death is when families are most vulnerable, desperately need privacy, and operate in deep communion with their own religious worldview and faith. That's why this group has chosen these funerals -- to get the most attention and be the most destructive. Picking up on Alan's point, I don't think there is any question that there is a compelling interest in keeping these speakers away from families during the funeral. Another point is that a person only has one funeral, so a funeral-related restriction is extremely limited in time and place. There is no less restrictive means than restricting the location of such speech vis-a-vis the time and place of the funeral itself. Marci In a message dated 11/2/2007 8:00:13 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: 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 ________________________________ See what's new at AOL.com <http://www.aol.com?NCID=AOLCMP00300000001170> and Make AOL Your Homepage <http://www.aol.com/mksplash.adp?NCID=AOLCMP00300000001169> .
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