I don't think "harassment" is a sufficiently well-defined legal
term to be helpful here. To be sure, it is defined - though vaguely and very
broadly - in hostile environment harassment law, but that definition isn't
applicable here. There's also telephone harassment law, but that is (rightly)
limited to speech that is said to a particular unwilling person, and not to
other, potentially willing, listeners. And occasionally one has
anti-"harassment" orders, which tend to be pretty vaguely defined. One way or
the other, I don't think that the term "harassment," given its many
definitions, each of which is not terribly clear (except possibly telephone
harassment), is that helpful to the discussion.
Persistent following is a different story. I'm inclined to say
that persistently following someone, whether to speak to him or not, could
indeed be banned, though I haven't thought enough about the subject to
determine where the line between punishable following and unpunishable
following should be drawn.
Likewise, perhaps there are other bases on which certain kinds
of speech, even on matters of public concern, could be restricted; I'd just
like to see a more specific proposed definition.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
Sent: Thursday, March 03, 2011 1:46 PM
To: Law & Religion issues for Law Academics
Subject: RE: Snyder v. Phelps
I have no particular problem with Eugene's conclusion that the speech at issue
is a matter of public concern or his statement that the fact that the speech
uses a particular person as an example does not make the speech less
constitutionally protected. Indeed, I think most speech in a traditional public
forum to a general audience (other than false statements of fact or categories
of unprotected speech) is fully protected even if it is on a matter of private
concern.
I think that the fact that the speech refers to a particular individual is
relevant (but certainly not dispositive) to whether it can be understood as
targeting that individual and harassment. If sufficient facts support the
characterization of the speech as targeting and harassing the individual
referred to, I think that such speech can be sanctioned even if it is a matter
of public concern. The facts did not support such a characterization of the
Phelps' speech in this case. If they did, I think the speech could be
sanctioned as harassment even if it was speech on a matter of public concern.
See my example of telephone harassment.
Eugene, do you think that the fact that speech is on a matter of public concern
immunizes it from sanction as harassment? If the Phelps clan picketed Mr.
Snyder's home and followed him around whenever he stepped foot on a public
sidewalk for the week before and the week after his son's funeral, brandishing
the same signs they held up in this case, could we punish such conduct as
harassment? How much of a role does the fact that speech is on a matter of
public concern play in deciding whether the expressive activity can be punished
as harassment without violating the First Amendment?
Alan
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
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