I think the argument for liability in Hustler was considerably weaker. What
actual harm did Falwell experience? Nobody reading Hustler could have
expected the piece was factual. Different set of parameters
I also think that the doctrine of defamation is not solely about the speech but
also about the value in protecting reputations related to one's livelihood.
Perhaps Eugene is suggesting these cases can be decided on speech category and
characteristics without reference to context or balancing against government
interest? I don't see how and I think the government has a compelling
interest in protecting people from intentional torts when they are in a
weakened state as one is with the death of a family member or comrade.
Funerals are special
Marci
Sent from my Verizon Wireless BlackBerry
-----Original Message-----
From: "Volokh, Eugene" <vol...@law.ucla.edu>
Date: Wed, 10 Mar 2010 11:20:31
To: 'Law & Religion issues for Law Academics'<religionlaw@lists.ucla.edu>
Subject: RE: Cert. granted in Snyder v. Phelps.
I sympathize with the sentiment in favor of liability here (as I did in
Hustler v. Falwell), though I ultimately disagree with it.
But I would hope that arguments for liability could be made without too
much deforming of existing doctrine. The Rock Against Racism cases are
expressly focused on *content-neutral* restrictions that are aimed at effects
of the speech caused by things other than its content (e.g., noise). Whatever
might be the result here, Rock Against Racism can be of no help.
Likewise, defamation liability is premised on the assertion that false
statements of fact lack constitutional value (Gertz). But that very paragraph
in Gertz starts this way: "We begin with the common ground. Under the First
Amendment there is no such thing as a false idea. However pernicious an
opinion may seem, we depend for its correction not on the conscience of judges
and juries but on the competition of other ideas." Whatever limits one might
urge on this principle based on the supposedly special status of funerals, and
speech that is about the recently deceased (recall that in this case the
liability was based partly on the speech on the Web site, so it isn't even
limited to speech near a funeral), defamation liability is not a helpful
analogy here.
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
> Sent: Wednesday, March 10, 2010 11:14 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Cert. granted in Snyder v. Phelps.
>
> The more I think about twos the less I am inclined to agree with Eugene on
> this
> one
> I don't think Skokie is an apt analogy because the speech there was not
> directed
> at any one person or persons. Nor was it intended to disrupt or impact one of
> life's most sacred and solemn events. The speakers have chosen funerals as
> their targets to improve tje effectiveness of their essay
> This is more like defamation or perhaps rock against racism. You have a
> right to
> speak but no right to optimal delivery or harming others intentionally.
> Marci
> Sent from my Verizon Wireless BlackBerry
>
> -----Original Message-----
> From: "Volokh, Eugene" <vol...@law.ucla.edu>
> Date: Wed, 10 Mar 2010 10:57:22
> To: 'Law & Religion issues for Law Academics'<religionlaw@lists.ucla.edu>
> Subject: RE: Cert. granted in Snyder v. Phelps.
>
> I take it that the analogy would have been disruption by sound: The
> government is certainly entitled to restrict speech that interferes with
> others'
> speech (or other matters) because of the noise that it creates, and many such
> restrictions are content-neutral. The disruption there is unrelated to the
> content of
> the speech, and consists simply of the distraction created by the sound, and
> in
> extreme cases the inability to hear the other sounds.
>
> But I agree that in the absence of loud noise (Eric asked whether there
> was
> such noise that could be heard from the funeral, but I think there wasn't),
> there is
> no analogy: The alleged disruption did not involve the content-neutral
> distraction
> caused by the sound, but rather the offense caused by the content of the
> speech.
> That makes the restriction unconstitutional, though punishment of people
> ("constituents of an institution" or otherwise) for shouting down a speaker
> generally would be constitutional.
>
> Eugene
>
> > -----Original Message-----
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of Steve Sanders
> > Sent: Wednesday, March 10, 2010 12:45 PM
> > To: 'Law & Religion issues for Law Academics'
> > Subject: RE: Cert. granted in Snyder v. Phelps.
> >
> > I'm scratching my head at Eric's analogy; perhaps he could elaborate? On
> > the one hand, we have constituents of an institution disrupting (however
> > inappropriately) an institutional ceremony to protest an institutional
> > policy. On the other hand, we have outsiders directing a crude and
> > emotionally disturbing message toward a private religious service. The two
> > situations are analogous how....?
> >
> > > -----Original Message-----
> > > From: religionlaw-boun...@lists.ucla.edu
> > > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> > > Sent: Wednesday, March 10, 2010 10:01 AM
> > > To: Law & Religion issues for Law Academics
> > > Subject: RE: Cert. granted in Snyder v. Phelps.
> > >
> > >
> > > I am sorry if this fact has already been circulated on the
> > > list, but was the protest at issue loud enough to be heard at
> > > the location of, and during, the funeral ceremony? If so,
> > > would this fact pattern be analogous to disruption of a
> > > public university graduation ceremony by students protesting
> > > tuition hikes?
> > >
> > >
> > >
> > > PLEASE NOTE NEW ADDRESS
> > >
> > > Eric Rassbach
> > > National Litigation Director
> > > The Becket Fund for Religious Liberty
> > > 3000 K St. NW, Suite 220
> > > Washington, DC 20007
> > > USA
> > > +1.202.349.7214 (tel.)
> > > +1.202.955.0090 (fax)
> > > www.becketfund.org
> > >
> > > NOTICE: This e-mail is from a law firm, The Becket Fund for
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> > >
> > >
> > > -----Original Message-----
> > > From: religionlaw-boun...@lists.ucla.edu
> > > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of
> > > Volokh, Eugene
> > > Sent: Wednesday, March 10, 2010 12:25 PM
> > > To: 'Law & Religion issues for Law Academics'
> > > Subject: RE: Cert. granted in Snyder v. Phelps.
> > >
> > > I appreciate Alan's points (though I probably disagree
> > > with him on the bottom line), and they might have been
> > > relevant to picketing in front of the funeral. But here, as
> > > Alan's first sentence acknowledges, liability was based
> > > partly on the Web site and partly on speech a thousand feet
> > > from the funeral. I take it that Alan agrees that the first
> > > class of speech wouldn't be covered by his theory.
> > >
> > > But beyond this, let me ask: I take it that some of
> > > the attendees at the funeral -- for instance, the decedent's
> > > comrades in arms -- might indeed be open to the proposition
> > > that God disapproves of America's tolerance for
> > > homosexuality, and that God rightly retaliates against
> > > America because of that. Those are certainly not my views,
> > > but I can certainly imagine a considerable number of people,
> > > including fellow soldiers, having them (though only a tiny
> > > fraction would actually express them on the occasion of the
> > > funeral). Presumably some of those fellow soldiers, even if
> > > upset by the speech, might thus be "potentially willing" to
> > > hear it (especially since a funeral tends to draw many
> > > attendees, and not just a very small circle), just as some of
> > > the residents of Skokie might have been anti-Semites even
> > > while many others were Jews. To what extent should that be
> > > relevant under Alan's analysis?
> > >
> > > Eugene
> > >
> > > Alan Brownstein writes:
> > >
> > > > > Although there are important limiting facts in this
> > > > > case that distinguish it from a clearer "picketing
> > > > > at a funeral case," at its core this case raises
> > > > > the question of whether speakers can choose a
> > > > > location for their offensive speech that targets
> > > > > their victims in an egregiously hurtful way when
> > > > > alternative sites for communicating their message to
> > > > > the public are equally accessible and at least as
> > > > > likely to be heard by potentially willing listeners.
> > > > > I'm still thinking about the answer to that
> > > > > question.
> > >_______________________________________________
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> > >
> > >_______________________________________________
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> > >
> > >
> >
> >_______________________________________________
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>_______________________________________________
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