It's not at all obvious that "You're Going to Hell" and "God Hates You" refers to Mr. Snyder (the father), or to his deceased son, or to anyone in particular. Perhaps the "You" in these messages refers to anyone who supports gay rights, or the Roman Catholic Church. So Isn't there an echo here of NYT v. Sullivan, where (as I recall, perhaps erroneously) the Court did not remand because a jury could not reasonably find that the NYT ad was "of and concerning" Sullivan?
On Wed, Mar 2, 2011 at 6:45 PM, Marty Lederman <lederman.ma...@gmail.com>wrote: > The most troubling (or at least undefended) part of the majority opinion is > why the particular signs specifically about Snyder and arguably not on a > matter of public concern – namely, “You’re Going to Hell” and “God Hates > You” – should be immunized merely because the “overall thrust” of the > collective messages was on matters of public concern. (Get ready to teach > your students the “overall thrust” doctrine. Akin to the "taken as a whole" > component of obscenity doctrine?) > > That is to say – why wasn’t the proper resolution to remand with > instructions that the jury is to be charged only with respect to the > non-public-concern speech? I can imagine reasons why the Court might be > reluctant to do that and might prefer an “overall thrust” test – e.g., to > provide breathing space; or because the jury would invariably be tainted by, > and inclined to assign liability for, the surrounding public concern > speech; or because the record didn't demonstrate that the Snyder family was > aware of those particular messages (if that's the case); or perhaps even on > the theory that speech *about Snyder* but directed to a public audience > is more constitutionally protected than Dun&Bradstreet-like speech to a > purely private audience -- but the Court doesn't bother to invoke any such > explanations, or even try to distinguish, e.g., the old “Voltaire/flyleaf” > reasoning. > > On the other hand, most of the Internet speech here was, in fact, directed > to a public audience but concerning a private figure, and the Court goes out > of its way to emphasize that it's not deciding that question. So perhaps > some such speech might still not be entitled to full constitutional > protection . . . at a minimum, where it constitutes the "overall thrust" of > the expression viewed as a whole. > > On Wed, Mar 2, 2011 at 6:05 PM, Steven Jamar <stevenja...@gmail.com>wrote: > >> Snyder v. Phelps, 8-1. >> >> C.J. Roberts: >> >> Whether the First Amendment prohibits holding Westboro liable for its >> speech in this case turns largely on whether that speech is of public or >> private concern, as determined by all the circumstances of the case. >> >> >> http://www.supremecourt.gov/opinions/10pdf/09-751.pdf >> <http://www.supremecourt.gov/opinions/10pdf/09-751.pdf> >> -- >> Prof. Steven D. Jamar vox: 202-806-8017 >> Associate Director, Institute for Intellectual Property and Social Justice >> http://iipsj.org >> Howard University School of Law fax: 202-806-8567 >> http://iipsj.com/SDJ/ >> >> Peace can only last where human rights are respected, where the people >> are fed, and where individuals and nations are free. >> >> Dalai Lama >> >> >> >> >> >> >> _______________________________________________ >> To post, send message to conlawp...@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof >> >> 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. > -- 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
_______________________________________________ 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.
