It seems to me that the analysis below further illustrates the
mushiness of the concept of "public concern," at least as it's often
used. Consider, for instance, "God punished your son because of
America's wrongdoing." That's a message about alleged religious truth,
about what policies the nation should enact, and implicitly about what
policies the listener should urge the nation to enact. It strikes me as
no less of "public concern" than the message, "God will punish you if
you don't convert to Christianity," or "God will punish you if you get
an abortion."
Likewise, there of course is a connection, according to Phelps'
ideology, between the dead soldier's conduct, the mourner's conduct, and
the protestors' message. The protestors' message is that the death
soldier was serving a dishonorable cause, and died as God's punishment
for serving a dishonorable cause; the mourners should recognize this,
see the light and thus improve their own religious undersatnding, and
work to change the nations' policies. I find the argument repugnant and
unpersuasive, but I don't think First Amendment doctrine can evaluate
arguments this way.
So it seems to me the speech is pretty clearly on a matter of
public concern. Perhaps it should be restrictable in any event, on some
Frisby-like rationale (especially if the restriction is
content-neutral). But it seems to me that this is not because "whatever
those messages to the mourners express[] about a matter of public
concern is so limited" -- it's because the speech could be restricted
even though it expresses a substantial public-concern message.
Eugene
Alan Brownstein writes:
> 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
>
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