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
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