Eugene has expressed much more clearly than I did why it I matters that there is a "connection" between the signs that may have been directed to particular persons and the broader, clearly protected message.
Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, March 03, 2011 1:03 PM To: Law & Religion issues for Law Academics Subject: RE: Snyder v. Phelps It seems to me that the speech in Snyder was speech that was both on a broad topic, and used a particular person as an example (and the occasion for the speech). That of course is utterly routine - many news stories, for instance, talk about crime, risks to health, government misconduct, and so on, using specific incidents as examples and occasions for the speech. And those incidents often involve tragic things happening to private persons. My sense is that such concrete "news hooks" are considered necessary in journalisms. I don't think that this can be enough to make the speech less constitutionally protected. See, e.g., Florida Star v. B.J.F., where the Court concluded that the general story was on a matter of public concern (crime, even though it was just a small item on one crime, with no express connection to broader discussions), and that this was so even though it used the name of the crime victim. Likewise here, it seems to me. The Phelpses believe that God is retaliating against America for its sin of tolerating homosexuality, and that this retaliation - including the violent death of American soldiers - will continue until we change our policies. That strikes me as a ridiculous position; but it is surely speech on a matter of public concern. And including a specific example of someone who died allegedly because of our sins can't, I think, make this speech on a matter of private concern any more than focusing on someone who died from lung cancer (whether as a result of smoking or second-hand smoke) or from HIV strips a broad discussion of the dangers of smoking or sexual promiscuity or anal intercourse of its public-concern status. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Thursday, March 03, 2011 10:10 AM To: Law & Religion issues for Law Academics Subject: RE: Snyder v. Phelps I admit to being confused by the emphasis in the Court's opinion on the question of whether the speech at issue was a matter of public concern or not. The primary issue in the case in my judgment involved targeting and harassment. I assume that derogatory statements about a class of people defined by race, religion, sexual orientation or other characteristics can be construed to be matters of public concern. I have also assumed, however, that such statements can be restricted as harassment or made the basis of civil liability if they are directed at a targeted individual in an inappropriate manner. The fact that someone hates everyone in your class and not just you doesn't transform the harassing nature of speech. If Church members had called Snyder at his home before and after the funeral and told the grieving Dad "Thank God for dead soldiers" or "God Hates you", I think that would have been actionable. It would still be actionable if the statements were generalized to say "God hates people like you." Conversely, if I stood up on a soapbox and said that one of my colleague who I identified by name was a horrible person and that G-d hated him, and that I would be happy if terrible things happened to him, I would think that was speech on a matter of private concern, but it would still be fully protected speech. The extent to which speech involves a public figure or is a matter of public concern plays some role in deciding whether expressive activities are actionable or not - but isn't the key issue here when, where, and how this hurtful message was communicated. The funeral of a President may involve a different analysis than the funeral of a private citizen. But here, I think the fact that the protestors were 1000 feet away from the funeral, were standing where they were told to stand by the police, and could not be seen by the mourners carries the lion's share of the weight in supporting the Court's conclusion. The conclusion that the expression of racism, homophobia and other forms of bigotry is speech on a matter of public concern is secondary. (For the record, the idea that someone who travels thousands of miles to hold a demonstration as close to a funeral service as they can get to hold up a sign saying "Thank God for dead soldiers" is not referring to the soldier being buried is pretty unpersuasive. They may be referring to other deceased soldiers as well - but that does not change the fact that they are referring to Snyder's son.) Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, March 02, 2011 4:23 PM To: Ira Lupu Cc: Law & Religion issues for Law Academics; CONLAWPROFS professors Subject: Re: Snyder v. Phelps Perhaps. Or perhaps those signs might refer, like most of the other messages, to the government and its agents more generally. And perhaps that would be good enough reason to immunize such statements -- because there is a likelihood they were on matters of public concern, and would be understood as such by a (forgive me) "reasonable observer." At least that would be a rationale -- one that would limit the holding so that it did not apply to speech unambiguously about a private figure (an issue that could be reserved). But what Roberts writes is this: "Even if a few of the signs-such as "You're Going to Hell" and "God Hates You"-were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro's demonstration spoke to broader public issues." This appears to suggest that speech can't be the source of IIED liability if its "overall thrust" is with respect to broader public issues, even if certain of its constituative statements are only about "non-public-figure" targets. On Wed, Mar 2, 2011 at 7:13 PM, Ira Lupu <icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote: 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<mailto: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<mailto: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 -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org<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<mailto: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<mailto: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
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