Eric Rassbach writes:
> Eugene is right -- I was asking about the sound aspect, i.e. could the
> protest be
> heard during the funeral ceremony, were they using megaphones, etc.
>
> Eugene -- if the shouting could be heard during the funeral ceremony, do you
> think
> IIED liability would be constitutional, in addition to TMP regulations, which
> I gather
> you think are okay? And could a jury constitutionally decide to give
> additional
> damages based on hateful content, or even just content that runs contrary to
> the
> message of the ceremony (honoring vs. dishonoring the soldier's sacrifice)?
I think a content-neutral TPM regulation would be constitutional, but
it seems to me that IIED liability with no standard other than "outrageousness"
would very likely end up being content-based. I suppose that if the jury were
instructed that they could find liability solely if they concluded that the
audibility of *any* sound during a funeral ceremony was outrageous, and caused
severe emotional distress simply because some sound was audible, that would be
a content-neutral basis for liability -- but I also can't see how a reasonable
jury could conclude that those elements could be met simply based on the
audibility of a sound.
Eugene
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