RE: Of Phelps and Persecution
Thanks as always to Alan for his thoughtful posts, including his response to my question. I'm not entirely sure, but I could very well be persuaded to adopt Alan's approach. In any event, I agree that the Skokie situation can be distinguished on the grounds that Alan proposes. That said, Blackmun's suggestive comment in Smith v. Collin, which I quoted before (see below), suggests that Alan's approach - like any context-specific, open-ended balancing analysis - creates questions of degree and therefore creates risks of unduly restrictive applications that are not presented by stronger, brighter-line rules. Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Wednesday, November 07, 2007 6:29 PM To: Law Religion issues for Law Academics Subject: RE: Of Phelps and Persecution Great question, Dan. And I actually gave some thought to Skokie when I wrote my post. I would argue that the Skokie situation does not fit my framework. In Skokie, Jews (some of whom were concentration camp survivors) were part of the general population of a community. They were part of the public at large that the Nazis were addressing with their march through the city's streets. Holding a march expressing a racist message down the main streets of a community with a significant black population or holding a march expressing an anti-Semitic message in a town where many Jews live does not present a sufficiently focused location/context/message to trigger my balancing analysis. Similarly, if Phelps and his crowd hold a march through the main streets of a town near a military base or pro-life protestors hold a march through a town where many women have had an abortion, I don't think my balancing analysis would apply either. I think a protest adjacent to and during the burial service of a soldier and a ring of protestors outside a clinic a patient is entering for medical services can be distinguished from a march down the main public streets of a community at a time of no particular significance that is deeply offensive to many of the people who live in that community - even if the town was selected as the site for the march precisely because of the demographics of its population. The message would be offensive to the part of the community it insults wherever it was expressed. And I don't think the feelings associated with Not in my town can be equated with Not at the burial service of my son. Basically, I think a protest by Nazis outside the cemetery that disrupts the burial services of concentration camp survivors is different than the Nazis march through the main streets of Skokie. Do you disagree and believe that there isn't any meaningful difference between these two events for free speech purposes, Dan? (Needless to say, the Nazis are fascist scum in either case, but that doesn't decide the constitutional question.) Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Conkle, Daniel O. Sent: Wednesday, November 07, 2007 2:32 PM To: 'Law Religion issues for Law Academics' Subject: RE: Of Phelps and Persecution Under Alan's approach, I wonder whether the Nazis could have properly been denied the right to march in Skokie? Would the proposed Nazi march at least have triggered Alan's balancing analysis, on the ground that the Nazis would have chosen a location/context/message that targets an audience that will suffer unique and especially hurtful injuries as a result of the demonstrators expressive activities? Cf. Smith v. Collin (1978) (Blackmun, J., dissenting) ([W]hen citizens assert, not casually but with deep conviction, that the proposed demonstration is scheduled at a place and in a manner that is taunting and overwhelmingly offensive to the citizens of that place, that assertion, uncomfortable though it may be for judges, deserves to be examined.). Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Wednesday, November 07, 2007 1:09 PM To: Law Religion issues for Law Academics Subject: RE: Of Phelps and Persecution In the overwhelming majority of cases involving demonstrations communicating with the public at large, I would argue that the demonstrators should be free to say what they want, in the location they choose, subject to reasonable content neutral time, place
RE: Of Phelps and Persecution
Alan suggests that holding a march expressing an anti-Semitic message in a town where many Jews live does not present a sufficiently focused location/context/message to trigger my balancing analysis. What if it's the Village of Kiryas Joel? I ask not to be facetious but to explore the extent of the context-specificity (and thus perhaps vagueness and/or manipulability, to elaborate upon Dan Conkle's concerns) of the considerations upon which application vel non of Alan's proposed balancing test would turn. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Wednesday, November 07, 2007 3:29 PM To: Law Religion issues for Law Academics Subject: RE: Of Phelps and Persecution Great question, Dan. And I actually gave some thought to Skokie when I wrote my post. I would argue that the Skokie situation does not fit my framework. In Skokie, Jews (some of whom were concentration camp survivors) were part of the general population of a community. They were part of the public at large that the Nazis were addressing with their march through the city's streets. Holding a march expressing a racist message down the main streets of a community with a significant black population or holding a march expressing an anti-Semitic message in a town where many Jews live does not present a sufficiently focused location/context/message to trigger my balancing analysis. Similarly, if Phelps and his crowd hold a march through the main streets of a town near a military base or pro-life protestors hold a march through a town where many women have had an abortion, I don't think my balancing analysis would apply either. I think a protest adjacent to and during the burial service of a soldier and a ring of protestors outside a clinic a patient is entering for medical services can be distinguished from a march down the main public streets of a community at a time of no particular significance that is deeply offensive to many of the people who live in that community - even if the town was selected as the site for the march precisely because of the demographics of its population. The message would be offensive to the part of the community it insults wherever it was expressed. And I don't think the feelings associated with Not in my town can be equated with Not at the burial service of my son. Basically, I think a protest by Nazis outside the cemetery that disrupts the burial services of concentration camp survivors is different than the Nazis march through the main streets of Skokie. Do you disagree and believe that there isn't any meaningful difference between these two events for free speech purposes, Dan? (Needless to say, the Nazis are fascist scum in either case, but that doesn't decide the constitutional question.) Alan Brownstein ___ 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.
RE: Of Phelps and Persecution
I think my answer about Skokie would apply to Kiryas Joel as well, David. Both you and Dan are right that any context-specific, open-ended balancing analysis - creates questions of degree and therefore creates risks of unduly restrictive applications that are not presented by stronger, brighter-line rules. We are always going to confront these difficult choices. On the one hand, if we are limited to strong, bright-line rules, we will not be able to restrict speech in some situations where we are confident that the harm caused by the speech far outweighs its utility for first amendment purposes. On the other hand, if we make exceptions to bright-line rules or adopt more flexible standards of review to allow states to restrict speech in those situations, we raise legitimate concerns about vagueness and/or manipulability. It may also be true, however, that by identifying carefully limited, and effectively isolated, situations in which speech can be restricted, we make it easier for courts to protect speech rigorously everywhere else. The argument that all speech in all contexts receives the same level of protection risks a political/judicial/cultural response that undermines the protection speech receives across the board. But that argument presupposes that we can identify such carefully limited and effectively isolated situations. I read your comment and Dan's to ask, quite appropriately, whether the distinctions I suggest can do that. I think so, but I certainly concede that these distinctions are not without risk. Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of David Cruz Sent: Friday, November 09, 2007 8:16 AM To: Law Religion issues for Law Academics Subject: RE: Of Phelps and Persecution Alan suggests that holding a march expressing an anti-Semitic message in a town where many Jews live does not present a sufficiently focused location/context/message to trigger my balancing analysis. What if it's the Village of Kiryas Joel? I ask not to be facetious but to explore the extent of the context-specificity (and thus perhaps vagueness and/or manipulability, to elaborate upon Dan Conkle's concerns) of the considerations upon which application vel non of Alan's proposed balancing test would turn. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Wednesday, November 07, 2007 3:29 PM To: Law Religion issues for Law Academics Subject: RE: Of Phelps and Persecution Great question, Dan. And I actually gave some thought to Skokie when I wrote my post. I would argue that the Skokie situation does not fit my framework. In Skokie, Jews (some of whom were concentration camp survivors) were part of the general population of a community. They were part of the public at large that the Nazis were addressing with their march through the city's streets. Holding a march expressing a racist message down the main streets of a community with a significant black population or holding a march expressing an anti-Semitic message in a town where many Jews live does not present a sufficiently focused location/context/message to trigger my balancing analysis. Similarly, if Phelps and his crowd hold a march through the main streets of a town near a military base or pro-life protestors hold a march through a town where many women have had an abortion, I don't think my balancing analysis would apply either. I think a protest adjacent to and during the burial service of a soldier and a ring of protestors outside a clinic a patient is entering for medical services can be distinguished from a march down the main public streets of a community at a time of no particular significance that is deeply offensive to many of the people who live in that community - even if the town was selected as the site for the march precisely because of the demographics of its population. The message would be offensive to the part of the community it insults wherever it was expressed. And I don't think the feelings associated with Not in my town can be equated with Not at the burial service of my son. Basically, I think a protest by Nazis outside the cemetery that disrupts the burial services of concentration camp survivors is different than the Nazis march through the main streets of Skokie. Do you disagree and believe that there isn't any meaningful difference between these two events for free speech purposes, Dan? (Needless to say, the Nazis are fascist scum in either case, but that doesn't decide the constitutional question.) Alan Brownstein ___ 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
RE: Of Phelps and Persecution
In the overwhelming majority of cases involving demonstrations communicating with the public at large, I would argue that the demonstrators should be free to say what they want, in the location they choose, subject to reasonable content neutral time, place and manner regulations. If the demonstrators choose a particular location because it is likely to attract public attention and the media, they should be protected in their choice. If, however, the demonstrators have chosen a location/context/message that targets an audience that will suffer unique and especially hurtful injuries as a result of the demonstrators expressive activities, courts should evaluate the harm that the demonstration causes against the free speech rights of the demonstrators. That balance would include the conventional factors that courts consider - the importance of the state's interest, the availability of alternative avenues of communication through which the speakers could express their message to the public without causing so much harm etc. Pursuant to that analysis, the fact that the demonstrators are trying to persuade a particular audience to change their beliefs or behavior and that the injuries their speech may cause is an inescapable consequence of the demonstrators' attempt to fulfill that expressive mission counts in favor of the demonstrators free speech rights. (That's the anti-abortion protest outside of a clinic example.) If the demonstrators have chosen a location/context/message that targets an audience that will suffer unique and especially hurtful injuries as a result of the demonstrators expressive activities and there is no particular reason that furthers free speech values why they should be in that place/ expressing that message/in that context - that is, there is no special reason why they should be directing their message to the public at large to the direct and immediate audience of the mourners at a funeral - then I would assign less weight to those demonstrators free speech claims. If the demonstrators have chosen that location/context/message because the injuries their speech will cause to the targeted audience is what attracts media attention to their message, I would assign less weight to those demonstrators' free speech claims as well. (This is the protests at the soldier's funeral example) In these situations, in my judgment, the demonstrators have plenty of opportunities to communicate their message to the public without causing unique and especially hurtful injuries to a targeted audience. And I do not assign substantial free speech value to their attempt to leverage the harm their speech causes to a targeted audience in order to amplify their message. But this analysis only comes into play when the location/context/message causes unique and especially hurtful injuries. Under the free speech clause, as I understand it, all protected speech is presumed to have sufficient value to outweigh the normal costs of permitting it to be expressed (offense, attenuated influence on unlawful behavior etc.). It is only when those costs come close to crossing a threshold that puts the question of whether the speech should be protected in doubt, that I would draw a distinction between persuasive speech directed at an audience to change its beliefs and behavior and other speech in context that does not serve core free speech values. Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, November 06, 2007 8:30 PM To: Law Religion issues for Law Academics Subject: RE: Of Phelps and Persecution Alan: I appreciate your argument, and I sympathize with much of what you say. Yet it seems to me that many demonstrations -- quite possibly most -- are intended *not* chiefly to persuade people who are at the target location (whether abortion doctors and patients, strike-breakers, people working at city hall or a federal building, and so on), but rather to communicate to the public at large, including those drawn by the media attention created by the targeted demonstration. Many of these demonstrations also try to influence some of the people at the target location; and even at a funeral, I suppose there might be some mourners who are persuadable (not the deceased's family, surely, but perhaps some coworkers and distant friends). But the chief purpose is not that. How would you analyze those sorts of demonstrations? Thanks, Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Saturday, November 03, 2007 7:02 PM To: Law Religion issues for Law Academics Subject: RE: Of Phelps and Persecution Eugene, I draw a distinction between protests outside clinics providing abortion services (and picketing by labor unions outside a store to change the store's labor policies
RE: Of Phelps and Persecution
Under Alan's approach, I wonder whether the Nazis could have properly been denied the right to march in Skokie? Would the proposed Nazi march at least have triggered Alan's balancing analysis, on the ground that the Nazis would have chosen a location/context/message that targets an audience that will suffer unique and especially hurtful injuries as a result of the demonstrators expressive activities? Cf. Smith v. Collin (1978) (Blackmun, J., dissenting) ([W]hen citizens assert, not casually but with deep conviction, that the proposed demonstration is scheduled at a place and in a manner that is taunting and overwhelmingly offensive to the citizens of that place, that assertion, uncomfortable though it may be for judges, deserves to be examined.). Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Wednesday, November 07, 2007 1:09 PM To: Law Religion issues for Law Academics Subject: RE: Of Phelps and Persecution In the overwhelming majority of cases involving demonstrations communicating with the public at large, I would argue that the demonstrators should be free to say what they want, in the location they choose, subject to reasonable content neutral time, place and manner regulations. If the demonstrators choose a particular location because it is likely to attract public attention and the media, they should be protected in their choice. If, however, the demonstrators have chosen a location/context/message that targets an audience that will suffer unique and especially hurtful injuries as a result of the demonstrators expressive activities, courts should evaluate the harm that the demonstration causes against the free speech rights of the demonstrators. That balance would include the conventional factors that courts consider - the importance of the state's interest, the availability of alternative avenues of communication through which the speakers could express their message to the public without causing so much harm etc. Pursuant to that analysis, the fact that the demonstrators are trying to persuade a particular audience to change their beliefs or behavior and that the injuries their speech may cause is an inescapable consequence of the demonstrators' attempt to fulfill that expressive mission counts in favor of the demonstrators free speech rights. (That's the anti-abortion protest outside of a clinic example.) If the demonstrators have chosen a location/context/message that targets an audience that will suffer unique and especially hurtful injuries as a result of the demonstrators expressive activities and there is no particular reason that furthers free speech values why they should be in that place/ expressing that message/in that context - that is, there is no special reason why they should be directing their message to the public at large to the direct and immediate audience of the mourners at a funeral - then I would assign less weight to those demonstrators free speech claims. If the demonstrators have chosen that location/context/message because the injuries their speech will cause to the targeted audience is what attracts media attention to their message, I would assign less weight to those demonstrators' free speech claims as well. (This is the protests at the soldier's funeral example) In these situations, in my judgment, the demonstrators have plenty of opportunities to communicate their message to the public without causing unique and especially hurtful injuries to a targeted audience. And I do not assign substantial free speech value to their attempt to leverage the harm their speech causes to a targeted audience in order to amplify their message. But this analysis only comes into play when the location/context/message causes unique and especially hurtful injuries. Under the free speech clause, as I understand it, all protected speech is presumed to have sufficient value to outweigh the normal costs of permitting it to be expressed (offense, attenuated influence on unlawful behavior etc.). It is only when those costs come close to crossing a threshold that puts the question of whether the speech should be protected in doubt, that I would draw a distinction between persuasive speech directed at an audience to change its beliefs and behavior and other speech in context that does not serve core free speech values. Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, November 06, 2007 8:30 PM To: Law Religion issues for Law Academics Subject: RE: Of Phelps and Persecution Alan: I appreciate your argument, and I sympathize
RE: Of Phelps and Persecution
Great question, Dan. And I actually gave some thought to Skokie when I wrote my post. I would argue that the Skokie situation does not fit my framework. In Skokie, Jews (some of whom were concentration camp survivors) were part of the general population of a community. They were part of the public at large that the Nazis were addressing with their march through the city's streets. Holding a march expressing a racist message down the main streets of a community with a significant black population or holding a march expressing an anti-Semitic message in a town where many Jews live does not present a sufficiently focused location/context/message to trigger my balancing analysis. Similarly, if Phelps and his crowd hold a march through the main streets of a town near a military base or pro-life protestors hold a march through a town where many women have had an abortion, I don't think my balancing analysis would apply either. I think a protest adjacent to and during the burial service of a soldier and a ring of protestors outside a clinic a patient is entering for medical services can be distinguished from a march down the main public streets of a community at a time of no particular significance that is deeply offensive to many of the people who live in that community - even if the town was selected as the site for the march precisely because of the demographics of its population. The message would be offensive to the part of the community it insults wherever it was expressed. And I don't think the feelings associated with Not in my town can be equated with Not at the burial service of my son. Basically, I think a protest by Nazis outside the cemetery that disrupts the burial services of concentration camp survivors is different than the Nazis march through the main streets of Skokie. Do you disagree and believe that there isn't any meaningful difference between these two events for free speech purposes, Dan? (Needless to say, the Nazis are fascist scum in either case, but that doesn't decide the constitutional question.) Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Conkle, Daniel O. Sent: Wednesday, November 07, 2007 2:32 PM To: 'Law Religion issues for Law Academics' Subject: RE: Of Phelps and Persecution Under Alan's approach, I wonder whether the Nazis could have properly been denied the right to march in Skokie? Would the proposed Nazi march at least have triggered Alan's balancing analysis, on the ground that the Nazis would have chosen a location/context/message that targets an audience that will suffer unique and especially hurtful injuries as a result of the demonstrators expressive activities? Cf. Smith v. Collin (1978) (Blackmun, J., dissenting) ([W]hen citizens assert, not casually but with deep conviction, that the proposed demonstration is scheduled at a place and in a manner that is taunting and overwhelmingly offensive to the citizens of that place, that assertion, uncomfortable though it may be for judges, deserves to be examined.). Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Wednesday, November 07, 2007 1:09 PM To: Law Religion issues for Law Academics Subject: RE: Of Phelps and Persecution In the overwhelming majority of cases involving demonstrations communicating with the public at large, I would argue that the demonstrators should be free to say what they want, in the location they choose, subject to reasonable content neutral time, place and manner regulations. If the demonstrators choose a particular location because it is likely to attract public attention and the media, they should be protected in their choice. If, however, the demonstrators have chosen a location/context/message that targets an audience that will suffer unique and especially hurtful injuries as a result of the demonstrators expressive activities, courts should evaluate the harm that the demonstration causes against the free speech rights of the demonstrators. That balance would include the conventional factors that courts consider - the importance of the state's interest, the availability of alternative avenues of communication through which the speakers could express their message to the public without causing so much harm etc. Pursuant to that analysis, the fact that the demonstrators are trying to persuade a particular audience to change their beliefs or behavior and that the injuries their speech may cause is an inescapable consequence of the demonstrators' attempt to fulfill that expressive mission counts in favor of the demonstrators free speech rights. (That's the anti
RE: Of Phelps and Persecution
Alan: I appreciate your argument, and I sympathize with much of what you say. Yet it seems to me that many demonstrations -- quite possibly most -- are intended *not* chiefly to persuade people who are at the target location (whether abortion doctors and patients, strike-breakers, people working at city hall or a federal building, and so on), but rather to communicate to the public at large, including those drawn by the media attention created by the targeted demonstration. Many of these demonstrations also try to influence some of the people at the target location; and even at a funeral, I suppose there might be some mourners who are persuadable (not the deceased's family, surely, but perhaps some coworkers and distant friends). But the chief purpose is not that. How would you analyze those sorts of demonstrations? Thanks, Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Saturday, November 03, 2007 7:02 PM To: Law Religion issues for Law Academics Subject: RE: Of Phelps and Persecution Eugene, I draw a distinction between protests outside clinics providing abortion services (and picketing by labor unions outside a store to change the store's labor policies) and the funeral protests here because the former examples involve speech directed at a specific audience who the speaker is trying to persuade to change his or her behavior -- and the location of the protest is chosen in considerable part because the audience the speaker wants to persuade is at that location (and may be difficult to identify otherwise). I think this goes to the very core of what the first amendment protects -- the speaker's opportunity to inform, or persuade on the merits, the very audience that that he or she is attempting to reach. The location of the speech where the anti-abortion protestors and labor picketers express their message seems to me to be critical to these core free speech purposes. The anti-abortion protestors can explain their protests at a location (outside the clinic) that increases the medical risks of their intended audience and invades women's privacy by a core free speech purpose. This is not a case where we can conclude that the sole purpose of the location of speech is to impose medical costs on women or to invade women's privacy. Of course, one can argue in the clinic providing abortion services context that the protestors' speech rights can be outweighed by compelling privacy and medical health interests. But I have always thought that the justification for restricting speech in this circumstance is that the state's interests are so high, not that the protestors free speech interests were particularly weak. In the funeral context, I don't see anything like the same first amendment foundation. The sole purpose of holding protests at the burial services of dead soldiers is to cause pain to the mourners or to take advantage of their distress to gain exposure for the protestors' message. There is no reason to think that the mourners have any special responsibility for American gay rights policies or any special ability to alter those policies (or even that they support gay rights). There is no reason to think that the mourners will serve in the military. There is no meaningful sense in which these protests can be understood as an attempt to persuade the mourners of the merits of the protestors' arguments. Here the location where the message is expressed maximizes the harm caused by the speech with no corresponding justification for the protest occuring at a burial service as opposed to some other, less inappropriate, public location (perhaps in front of a military recruiting office). I recognize that the first amendment protects speech that is offensive or hurtful. But sometimes we can conclude from the context in which speech occurs 1. that the speech causes unique distress and injury, 2. that the speech accomplishes virtually nothing of value for first amendment purposes, and 3. because of the narrow circumstances involved, we can restrict speech in this context without undue concern about burdening more speech than necessary. It seems to me that prohibiting speech at burial services of the kind described in my proposed ordinance satisfies all three conditions. What is accomplished by protestors standing outside a cancer ward and telling the family visiting a dying patient in his hospital bed that their loved one deserves to die, that G-d is punishing him because of America's policies about abortion or gay rights or anything else? What is accomplished by communicating that message in that location to that audience other than causing a vulnerable family additional pain? What is accomplished by telling a woman at the burial service of a newborn baby
RE: Of Phelps and Persecution
Alan: What if a town enacted an ordinance that prohibited the display of signs or banners that held those who get abortions up to contempt or ridicule (or expressed the message that they deserved to be punished by God) within 1000 feet of an abortion clinic? Would that be treated the same way as funerals? Is the difference that protecting the privacy and dignity of mourners a more compelling interest than protecting the privacy and dignity of those who are about to get a difficult medical procedure? Or is the difference that we think the view that women who get abortions are acting immorally is plausible -- even if we disagree with it, and even if we think it's rude to express it around them -- while the view that people who mourn soldiers should instead recognize that the soldiers' deaths were God's righteous justice is implausible? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Friday, November 02, 2007 11:38 PM To: Law Religion issues for Law Academics Subject: RE: Of Phelps and Persecution Picking up on Marci's comment, suppose a town enacted an ordinance that prohibited the display of signs or banners that held the decedent up to contempt or ridicule (or expressed the message that the decedent deserved to die or was unworthy to be mourned) within 1000 feet of a burial service. Something like the law at issue in Boos v. Barry, but with the goal of protecting the privacy and dignity of the service and mourners. It is a content discriminatory law and should be subjected to strict scrutiny. Does the state have a compelling interest in protecting grieving family members and friends so that they can bury their dead in peace and without offensive disturbances? Alan Brownstein From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Fri 11/2/2007 3:24 PM To: religionlaw@lists.ucla.edu Subject: Re: Of Phelps and Persecution Chris Lund has put the cart before the horse here. Measuring the neutrality of the law according to whether the organizations' assets are exhausted is backward. Strong impact of a neutral law does not prove by itself that it is not neutral -- it just may prove that the religious entity acted in ways that severely harm others. It is simply a fact that religious organizations -- just like businesses -- may cause such harm that losing all of their assets even falls short of what they should owe society for what they have done. Thus, the impact of the law may well prove a lot more about the wrongdoing within the organization than the law's neutrality. It is not unconstitutional for a religious organization to be put out of business by the operation of neutral, generally applicable laws when the behavior has been as execrable as the behavior is here. Now, if the tort law ONLY impacted religious organizations and no secular organizations (like the law banning sacrifice in Lukumi), there might be some argument about neutrality, but I have yet to see the tort law that is directed solely at or works only against religious organizations. For what it's worth, the speech issue in my view is limited solely to place analysis. Those arguing that there is something especially problematic in the delivery of this personal message against a family at this location are very persuasive. If this group wants to make these points on the apron in front of the Supreme Court or other public place removed from the family's observance, they deserve protection, despite the ugliness of their message. Doing it in physical proximity of a mourning family observing their religious obligations to their dead is a very different matter. The First Amendment does not guarantee anyone the optimal location for speech, even when the speech is otherwise highly protected. Marci Marci A. Hamilton Visiting Professor of Public Affairs Kathleen and Martin Crane Senior Research Fellow Program in Law and Public Affairs Woodrow Wilson School Princeton University The Hare Krishnas and Unification Churches faced similarly devastating verdicts because of IIED and invasion-of-privacy claims brought by private individuals who wanted their destruction, and that reflected how neutral and generally applicable tort rules could combine with jury discretion to be devastingly non-neutral. If I'm remembering Doug Laycock's Remnants piece right, all of Krishna's land holdings in the United States were put into receivership to secure just one of the judgments. See what's new at AOL.com http://www.aol.com/?NCID=AOLCMP0030001170 and Make AOL Your Homepage http
RE: Of Phelps and Persecution
Eugene, I draw a distinction between protests outside clinics providing abortion services (and picketing by labor unions outside a store to change the store's labor policies) and the funeral protests here because the former examples involve speech directed at a specific audience who the speaker is trying to persuade to change his or her behavior -- and the location of the protest is chosen in considerable part because the audience the speaker wants to persuade is at that location (and may be difficult to identify otherwise). I think this goes to the very core of what the first amendment protects -- the speaker's opportunity to inform, or persuade on the merits, the very audience that that he or she is attempting to reach. The location of the speech where the anti-abortion protestors and labor picketers express their message seems to me to be critical to these core free speech purposes. The anti-abortion protestors can explain their protests at a location (outside the clinic) that increases the medical risks of their intended audience and invades women's privacy by a core free speech purpose. This is not a case where we can conclude that the sole purpose of the location of speech is to impose medical costs on women or to invade women's privacy. Of course, one can argue in the clinic providing abortion services context that the protestors' speech rights can be outweighed by compelling privacy and medical health interests. But I have always thought that the justification for restricting speech in this circumstance is that the state's interests are so high, not that the protestors free speech interests were particularly weak. In the funeral context, I don't see anything like the same first amendment foundation. The sole purpose of holding protests at the burial services of dead soldiers is to cause pain to the mourners or to take advantage of their distress to gain exposure for the protestors' message. There is no reason to think that the mourners have any special responsibility for American gay rights policies or any special ability to alter those policies (or even that they support gay rights). There is no reason to think that the mourners will serve in the military. There is no meaningful sense in which these protests can be understood as an attempt to persuade the mourners of the merits of the protestors' arguments. Here the location where the message is expressed maximizes the harm caused by the speech with no corresponding justification for the protest occuring at a burial service as opposed to some other, less inappropriate, public location (perhaps in front of a military recruiting office). I recognize that the first amendment protects speech that is offensive or hurtful. But sometimes we can conclude from the context in which speech occurs 1. that the speech causes unique distress and injury, 2. that the speech accomplishes virtually nothing of value for first amendment purposes, and 3. because of the narrow circumstances involved, we can restrict speech in this context without undue concern about burdening more speech than necessary. It seems to me that prohibiting speech at burial services of the kind described in my proposed ordinance satisfies all three conditions. What is accomplished by protestors standing outside a cancer ward and telling the family visiting a dying patient in his hospital bed that their loved one deserves to die, that G-d is punishing him because of America's policies about abortion or gay rights or anything else? What is accomplished by communicating that message in that location to that audience other than causing a vulnerable family additional pain? What is accomplished by telling a woman at the burial service of a newborn baby that G-d is punishing the women of America and their babies because of American policy on abortion rights? I share many of your general concerns, Eugene, about the problems with using IIED to punish speech. But I think this speech in this context can be prohibited. The only question for me is how we can best accomplish that goal while minimizing the risk that other speech is chilled or punished. The statute I propose is content-based, but it is also very limited in its scope. That is one of the trade-offs between content-neutral and content discriminatory laws. The former is less likely to supress ideas and distort debate and is usually harder to enact. The latter burdens less speech. Usually, that difference supports a content-neutral law. In this case, I think the content-discriminatory law might more effectively serve the state's interests and may be less damaging to free speech values. Alan Brownstein From: [EMAIL PROTECTED] on behalf of Volokh, Eugene Sent: Sat 11/3/2007 2:14 PM To: Law Religion issues for Law Academics Subject: RE: Of Phelps and Persecution Alan: What if a town enacted an ordinance that prohibited
Of Phelps and Persecution
The judgment against Westboro and Phelps was $11 million. Someone said that the jury picked this number to make sure that Westboro loses all its assets. I don't know whether that's true, but it wouldn't surprise me, and I would expect a sensible plaintiff's attorney to have suggested as much in their arguments about the need for punitive damages here. The Hare Krishnas and Unification Churches faced similarly devastating verdicts because of IIED and invasion-of-privacy claims brought by private individuals who wanted their destruction, and that reflected how neutral and generally applicable tort rules could combine with jury discretion to be devastingly non-neutral. If I'm remembering Doug Laycock's Remnants piece right, all of Krishna's land holdings in the United States were put into receivership to secure just one of the judgments. We've only talked about the Maryland case. But Phelps is having to defend a number of lawsuits in a number of places. Sometimes these cases are obvious and deliberate abuses. Phelps' daughter is being prosecuted in Nebraska for flag mutilation, negligent child abuse, contributing to the deliquency of a minor, and disturbing the peace * all apparently for having her 10-year-old son stand on a flag during a protest. The district attorney there said, when asked about the potential rights of the Westboro believers, they don't really deserve the protection of freedom of speech, freedom of religion. Some want to punish Phelps because he went over the line here. But most just want to punish Phelps, and either don't care about the line or will draw it post hoc to make sure Phelps' actions end up on the unprotected side. All this is to say that I am much less confident now than I was at the start of this thread that what is happening to Phelps is the product of neutral principles of law. Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) ___ 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.
RE: Of Phelps and Persecution
Picking up on Marci's comment, suppose a town enacted an ordinance that prohibited the display of signs or banners that held the decedent up to contempt or ridicule (or expressed the message that the decedent deserved to die or was unworthy to be mourned) within 1000 feet of a burial service. Something like the law at issue in Boos v. Barry, but with the goal of protecting the privacy and dignity of the service and mourners. It is a content discriminatory law and should be subjected to strict scrutiny. Does the state have a compelling interest in protecting grieving family members and friends so that they can bury their dead in peace and without offensive disturbances? Alan Brownstein From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Fri 11/2/2007 3:24 PM To: religionlaw@lists.ucla.edu Subject: Re: Of Phelps and Persecution Chris Lund has put the cart before the horse here. Measuring the neutrality of the law according to whether the organizations' assets are exhausted is backward. Strong impact of a neutral law does not prove by itself that it is not neutral -- it just may prove that the religious entity acted in ways that severely harm others. It is simply a fact that religious organizations -- just like businesses -- may cause such harm that losing all of their assets even falls short of what they should owe society for what they have done. Thus, the impact of the law may well prove a lot more about the wrongdoing within the organization than the law's neutrality. It is not unconstitutional for a religious organization to be put out of business by the operation of neutral, generally applicable laws when the behavior has been as execrable as the behavior is here. Now, if the tort law ONLY impacted religious organizations and no secular organizations (like the law banning sacrifice in Lukumi), there might be some argument about neutrality, but I have yet to see the tort law that is directed solely at or works only against religious organizations. For what it's worth, the speech issue in my view is limited solely to place analysis. Those arguing that there is something especially problematic in the delivery of this personal message against a family at this location are very persuasive. If this group wants to make these points on the apron in front of the Supreme Court or other public place removed from the family's observance, they deserve protection, despite the ugliness of their message. Doing it in physical proximity of a mourning family observing their religious obligations to their dead is a very different matter. The First Amendment does not guarantee anyone the optimal location for speech, even when the speech is otherwise highly protected. Marci Marci A. Hamilton Visiting Professor of Public Affairs Kathleen and Martin Crane Senior Research Fellow Program in Law and Public Affairs Woodrow Wilson School Princeton University The Hare Krishnas and Unification Churches faced similarly devastating verdicts because of IIED and invasion-of-privacy claims brought by private individuals who wanted their destruction, and that reflected how neutral and generally applicable tort rules could combine with jury discretion to be devastingly non-neutral. If I'm remembering Doug Laycock's Remnants piece right, all of Krishna's land holdings in the United States were put into receivership to secure just one of the judgments. See what's new at AOL.com http://www.aol.com/?NCID=AOLCMP0030001170 and Make AOL Your Homepage http://www.aol.com/mksplash.adp?NCID=AOLCMP0030001169 . winmail.dat___ 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.
