I have no idea what the Justices are thinking about this issue. But it is worth noting that in Hill v. Colorado, some of the dissenting justices argued that it would be better for free speech purposes for a state to adopt a narrower ordinance that singles out harassment or other expressive activities that may be constitutionally restricted as opposed to a broader, content neutral statute that prohibits some clearly protected speech. Of course, that approach would require the Court to come up with a constitutionally acceptable definition of harassment -- something the Court has never done and has avoided in the past (e.g. it never grants cert. to telephone harassment cases.)
It is also true, as Eugene suggests, that Intentional Infliction of Emotional Distress is very much a speech-based tort and that we have nothing like the guidance as to how courts are to address free speech concerns involving this cause of action that we have in defamation cases. Alan Brownstein -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, March 08, 2010 10:34 AM To: 'Law & Religion issues for Law Academics' Subject: RE: Cert. granted in Snyder v. Phelps. My fear is that the Justices might just think the decision below is wrong; the cert petition only alleged a split with a Sixth Circuit case that upheld a content-neutral funeral picketing ordinance, which (as Chip implicitly suggests) is quite different from the content-based decision in this case. Nonetheless, there is a good deal of tension in lower court cases as to whether the IIED tort is unconstitutional only when the claim is brought by a public figure based on speech on matters of public concern, or also when it's brought by a private figure. I'm not sure that there's a square split among circuit cases and state supreme court cases, but I think there is plenty of disagreement among appellate cases generally, and possibly a square split that the clerk found, even if the petition didn't allege it. Eugene > -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu > Sent: Monday, March 08, 2010 10:27 AM > To: Law & Religion issues for Law Academics > Subject: Re: Cert. granted in Snyder v. Phelps. > > The 4th Circuit held, on First Amendment grounds, that the state could not > attach > tort liability (intentional infliction of emotional distress, intrusion upon > seclusion, > and civil conspiracy) to the protests engaged in by Phelps and others near the > funeral of the deceased soldier, or to the later-posted comments on Phelps > website. Is there a Circuit split on cases of this sort? I am wondering > what led > four (or more) Justices to vote for a cert grant in this case (especially in > light of > what seems to be the well-recognized state power to create content-neutral and > viewpoint-neutral regulations about picketing in close proximity to a funeral > service). > > > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > > ---- Original message ---- > >Date: Mon, 8 Mar 2010 08:14:39 -0800 (PST) > >From: religionlaw-boun...@lists.ucla.edu (on behalf of Jeffrey Shulman > <jeffreyshul...@yahoo.com>) > >Subject: Cert. granted in Snyder v. Phelps. > >To: religionlaw@lists.ucla.edu > > > > Though not framed by the Court as raising a question > > of religious liberty, this case will be of interest > > to those concerned with issues related`to religious > > speech. From ScotusBlog: "The Supreme Court, > > taking on the emotionally charged issue of picketing > > protests at the funerals of soldiers killed in > > wartime, agreed Monday to consider reinstating a $5 > > million damages verdict against a Kansas preacher > > and his anti-gay crusade. . . . The funeral > > picketing case (Snyder v. Phelps, et al., 09-751) > > focuses on a significant question of First Amendment > > law: the degree of constitutional protection given > > to private remarks made about a private person, > > occurring in a largely private setting. The family > > of the dead soldier had won a verdict before a jury, > > but that was overturned by the Fourth Circuit Court, > > finding that the signs displayed at the funeral in > > western Maryland and later comments on an anti-gay > > website were protected speech. The petition for > > review seeks the Court’s protection for families > > attending a funeral from “unwanted” remarks or > > displays by protesters." > > > > Jeffrey Shulman > > > > Jeffrey Shulman > > Associate Professor > > Legal Research and Writing > > Georgetown University Law Center > >________________ > >_______________________________________________ > >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. > _______________________________________________ > 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. _______________________________________________ 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. _______________________________________________ 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.
