Re: Speech and conduct
I strongly disagree with Eugene here. It's not the speech per se, but rather the location of the speech that is outrageous. And this speech in its chosen location in particular is not allegedly outrageous, but rather outrageous on every meter known to civilized individuals. Death is when families are most vulnerable, desperately need privacy, and operate in deep communion with their own religious worldview and faith. That's why this group has chosen these funerals -- to get the most attention and be the most destructive. Picking up on Alan's point, I don't think there is any question that there is a compelling interest in keeping these speakers away from families during the funeral. Another point is that a person only has one funeral, so a funeral-related restriction is extremely limited in time and place. There is no less restrictive means than restricting the location of such speech vis-a-vis the time and place of the funeral itself. Marci In a message dated 11/2/2007 8:00:13 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: What makes the behavior allegedly outrageous infliction of severe emotional distress (or for that matter an actionable invasion of privacy) is precisely the speech. Eugene ** See what's new at http://www.aol.com ___ 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: Speech and conduct
I agree with Marci about one thing: This was indeed outrageous; the allegedly was an inartful way to cover the possibility of IIED applying to several hypotheticals at once (If there were a half dozen people standing on the street corner near the funeral talking to each other, the attendees to the funeral might be very slightly put off, but very slightly. If there were people engaged in labor picketing against the cemetery's practices, they might think it's mildly disrespectful, but not remotely 'outrageous.' If there were people standing with signs saying 'Our condolences for your and our nation's loss,' the attendees would likely be pleased, unless they were a very private sort of people, in which case they might find this a little tacky or annoying. What makes the behavior allegedly outrageous infliction of severe emotional distress (or for that matter an actionable invasion of privacy) is precisely the speech), but I'm happy to say that the allegations were perfectly true here. But as my hypotheticals show, I think, the IIED liability is based precisely on *what is said* in this place. It's possible that a jury might have found IIED even if it wasn't said at the funeral, but was said in a local newspaper ad bought the day of the funeral -- I agree the jury would have been less likely to find IIED there, but the IIED tort is broad and vague enough that no-one can tell for sure. But it's impossible that the jury would have found outrageousness if the speech were at the funeral, but was merely labor picketing, or casual conversation among a few people gathered on a corner, or the Our condolences for your and our nation's loss. Nor -- returning to the thread -- is it proper to discuss the location as a conduct issue. The choice of which ordinance to target is just as much a speech factor as the choice of what to say. It may be regulable under the Ward standard for content-neutral time, place, and manner regulations; but this is not such a content-neutral regulation. It may be restrictable under strict scrutiny, as Marci suggests, though I don't think so. (I think a content-neutral limit on all picketing in front of a funeral would likely pass muster, by analogy to Frisby v. Schultz, if it's limited to speech in front of the funeral; but, as I said, the IIED tort is not such a content-neutral law.) But any restriction on this should be judged as the speech restriction that it is, not as a conduct restriction. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Saturday, November 03, 2007 6:38 AM To: religionlaw@lists.ucla.edu Subject: Re: Speech and conduct I strongly disagree with Eugene here. It's not the speech per se, but rather the location of the speech that is outrageous. And this speech in its chosen location in particular is not allegedly outrageous, but rather outrageous on every meter known to civilized individuals. Death is when families are most vulnerable, desperately need privacy, and operate in deep communion with their own religious worldview and faith. That's why this group has chosen these funerals -- to get the most attention and be the most destructive. Picking up on Alan's point, I don't think there is any question that there is a compelling interest in keeping these speakers away from families during the funeral. Another point is that a person only has one funeral, so a funeral-related restriction is extremely limited in time and place. There is no less restrictive means than restricting the location of such speech vis-a-vis the time and place of the funeral itself. Marci In a message dated 11/2/2007 8:00:13 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: What makes the behavior allegedly outrageous infliction of severe emotional distress (or for that matter an actionable invasion of privacy) is precisely the speech. Eugene 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 . ___ 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: Speech and conduct
IIED can be treated just like defamation and not protected by free speech, though Eugene would not want it treated like that. Or this can be (properly in my view) viewed as mixed conduct and speech and regulated by modest extension of time place and manner and secondary effects doctrines -- easy enough to fashion a narrow rule for this sort of situation that avoids the serious concerns of censorship. Or it can be viewed as purely content-based (improperly in my view) and upheld under some version of speech strict scrutiny such as compelling interest, narrowly tailored, ample alternative avenues availalble. I am unpersuaded by Eugene's underinclusive argument -- as I was in R.A.V. Just as categories of unprotected speech are not so pure, neither is the idea of content nuetrality as simple or absolute or pure as Eugene wants it to be. Steve On 11/3/07, Volokh, Eugene [EMAIL PROTECTED] wrote: I agree with Marci about one thing: This was indeed outrageous; the allegedly was an inartful way to cover the possibility of IIED applying to several hypotheticals at once (If there were a half dozen people standing on the street corner near the funeral talking to each other, the attendees to the funeral might be very slightly put off, but very slightly. If there were people engaged in labor picketing against the cemetery's practices, they might think it's mildly disrespectful, but not remotely 'outrageous.' If there were people standing with signs saying 'Our condolences for your and our nation's loss,' the attendees would likely be pleased, unless they were a very private sort of people, in which case they might find this a little tacky or annoying. What makes the behavior allegedly outrageous infliction of severe emotional distress (or for that matter an actionable invasion of privacy) is precisely the speech), but I'm happy to say that the allegations were perfectly true here. But as my hypotheticals show, I think, the IIED liability is based precisely on *what is said* in this place. It's possible that a jury might have found IIED even if it wasn't said at the funeral, but was said in a local newspaper ad bought the day of the funeral -- I agree the jury would have been less likely to find IIED there, but the IIED tort is broad and vague enough that no-one can tell for sure. But it's impossible that the jury would have found outrageousness if the speech were at the funeral, but was merely labor picketing, or casual conversation among a few people gathered on a corner, or the Our condolences for your and our nation's loss. Nor -- returning to the thread -- is it proper to discuss the location as a conduct issue. The choice of which ordinance to target is just as much a speech factor as the choice of what to say. It may be regulable under the Ward standard for content-neutral time, place, and manner regulations; but this is not such a content-neutral regulation. It may be restrictable under strict scrutiny, as Marci suggests, though I don't think so. (I think a content-neutral limit on all picketing in front of a funeral would likely pass muster, by analogy to Frisby v. Schultz, if it's limited to speech in front of the funeral; but, as I said, the IIED tort is not such a content-neutral law.) But any restriction on this should be judged as the speech restriction that it is, not as a conduct restriction. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Saturday, November 03, 2007 6:38 AM To: religionlaw@lists.ucla.edu Subject: Re: Speech and conduct I strongly disagree with Eugene here. It's not the speech per se, but rather the location of the speech that is outrageous. And this speech in its chosen location in particular is not allegedly outrageous, but rather outrageous on every meter known to civilized individuals. Death is when families are most vulnerable, desperately need privacy, and operate in deep communion with their own religious worldview and faith. That's why this group has chosen these funerals -- to get the most attention and be the most destructive. Picking up on Alan's point, I don't think there is any question that there is a compelling interest in keeping these speakers away from families during the funeral. Another point is that a person only has one funeral, so a funeral-related restriction is extremely limited in time and place. There is no less restrictive means than restricting the location of such speech vis-a-vis the time and place of the funeral itself. Marci In a message dated 11/2/2007 8:00:13 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: What makes the behavior allegedly outrageous infliction of severe emotional distress (or for that matter an actionable invasion of privacy) is precisely the speech. Eugene See what's new at AOL.com
Re: Speech and conduct
isn't this a case of private plaintiffs? Do you need to show actual malice in private libel? I don't think so, and it is still constitutional. Steve On 11/3/07, Bezanson, Randall P [EMAIL PROTECTED] wrote: Unless I'm mistaken, I think the constitutional narrow tailoring and compelling interest ideas are accomplished in public libel cases by the requirements of actual malice and proven falsity. In IIED I suppose those requirements could by analogy be satisfied by a form of specific intent to inflict serious emotional harm on a particular person(s) and outrageousness of the conduct/speech, though we don't know because the Supreme Court has not, to my knowledge, explicitly addressed the question in what by libel standards would likely be a private libel case governed by Gertz, not NYT v. Sullivan. Randy Bezanson -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Saturday, November 03, 2007 1:36 PM To: Law Religion issues for Law Academics Subject: Re: Speech and conduct IIED can be treated just like defamation and not protected by free speech, though Eugene would not want it treated like that. Or this can be (properly in my view) viewed as mixed conduct and speech and regulated by modest extension of time place and manner and secondary effects doctrines -- easy enough to fashion a narrow rule for this sort of situation that avoids the serious concerns of censorship. Or it can be viewed as purely content-based (improperly in my view) and upheld under some version of speech strict scrutiny such as compelling interest, narrowly tailored, ample alternative avenues availalble. I am unpersuaded by Eugene's underinclusive argument -- as I was in R.A.V. Just as categories of unprotected speech are not so pure, neither is the idea of content nuetrality as simple or absolute or pure as Eugene wants it to be. Steve On 11/3/07, Volokh, Eugene [EMAIL PROTECTED] wrote: I agree with Marci about one thing: This was indeed outrageous; the allegedly was an inartful way to cover the possibility of IIED applying to several hypotheticals at once (If there were a half dozen people standing on the street corner near the funeral talking to each other, the attendees to the funeral might be very slightly put off, but very slightly. If there were people engaged in labor picketing against the cemetery's practices, they might think it's mildly disrespectful, but not remotely 'outrageous.' If there were people standing with signs saying 'Our condolences for your and our nation's loss,' the attendees would likely be pleased, unless they were a very private sort of people, in which case they might find this a little tacky or annoying. What makes the behavior allegedly outrageous infliction of severe emotional distress (or for that matter an actionable invasion of privacy) is precisely the speech), but I'm happy to say that the allegations were perfectly true here. But as my hypotheticals show, I think, the IIED liability is based precisely on *what is said* in this place. It's possible that a jury might have found IIED even if it wasn't said at the funeral, but was said in a local newspaper ad bought the day of the funeral -- I agree the jury would have been less likely to find IIED there, but the IIED tort is broad and vague enough that no-one can tell for sure. But it's impossible that the jury would have found outrageousness if the speech were at the funeral, but was merely labor picketing, or casual conversation among a few people gathered on a corner, or the Our condolences for your and our nation's loss. Nor -- returning to the thread -- is it proper to discuss the location as a conduct issue. The choice of which ordinance to target is just as much a speech factor as the choice of what to say. It may be regulable under the Ward standard for content-neutral time, place, and manner regulations; but this is not such a content-neutral regulation. It may be restrictable under strict scrutiny, as Marci suggests, though I don't think so. (I think a content-neutral limit on all picketing in front of a funeral would likely pass muster, by analogy to Frisby v. Schultz, if it's limited to speech in front of the funeral; but, as I said, the IIED tort is not such a content-neutral law.) But any restriction on this should be judged as the speech restriction that it is, not as a conduct restriction. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Saturday, November 03, 2007 6:38 AM To: religionlaw@lists.ucla.edu Subject: Re: Speech and conduct I strongly disagree with Eugene here. It's not the speech per se, but rather the location of the speech that is outrageous. And this speech in its
RE: Speech and conduct
Were it libel, the case would (as I suggested in my comment) likely be a private libel governed by Gertz (negligence and not actual malice. Randy Bezanson Univ. of Iowa -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Saturday, November 03, 2007 4:43 PM To: Law Religion issues for Law Academics Subject: Re: Speech and conduct isn't this a case of private plaintiffs? Do you need to show actual malice in private libel? I don't think so, and it is still constitutional. Steve On 11/3/07, Bezanson, Randall P [EMAIL PROTECTED] wrote: Unless I'm mistaken, I think the constitutional narrow tailoring and compelling interest ideas are accomplished in public libel cases by the requirements of actual malice and proven falsity. In IIED I suppose those requirements could by analogy be satisfied by a form of specific intent to inflict serious emotional harm on a particular person(s) and outrageousness of the conduct/speech, though we don't know because the Supreme Court has not, to my knowledge, explicitly addressed the question in what by libel standards would likely be a private libel case governed by Gertz, not NYT v. Sullivan. Randy Bezanson -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Saturday, November 03, 2007 1:36 PM To: Law Religion issues for Law Academics Subject: Re: Speech and conduct IIED can be treated just like defamation and not protected by free speech, though Eugene would not want it treated like that. Or this can be (properly in my view) viewed as mixed conduct and speech and regulated by modest extension of time place and manner and secondary effects doctrines -- easy enough to fashion a narrow rule for this sort of situation that avoids the serious concerns of censorship. Or it can be viewed as purely content-based (improperly in my view) and upheld under some version of speech strict scrutiny such as compelling interest, narrowly tailored, ample alternative avenues availalble. I am unpersuaded by Eugene's underinclusive argument -- as I was in R.A.V. Just as categories of unprotected speech are not so pure, neither is the idea of content nuetrality as simple or absolute or pure as Eugene wants it to be. Steve On 11/3/07, Volokh, Eugene [EMAIL PROTECTED] wrote: I agree with Marci about one thing: This was indeed outrageous; the allegedly was an inartful way to cover the possibility of IIED applying to several hypotheticals at once (If there were a half dozen people standing on the street corner near the funeral talking to each other, the attendees to the funeral might be very slightly put off, but very slightly. If there were people engaged in labor picketing against the cemetery's practices, they might think it's mildly disrespectful, but not remotely 'outrageous.' If there were people standing with signs saying 'Our condolences for your and our nation's loss,' the attendees would likely be pleased, unless they were a very private sort of people, in which case they might find this a little tacky or annoying. What makes the behavior allegedly outrageous infliction of severe emotional distress (or for that matter an actionable invasion of privacy) is precisely the speech), but I'm happy to say that the allegations were perfectly true here. But as my hypotheticals show, I think, the IIED liability is based precisely on *what is said* in this place. It's possible that a jury might have found IIED even if it wasn't said at the funeral, but was said in a local newspaper ad bought the day of the funeral -- I agree the jury would have been less likely to find IIED there, but the IIED tort is broad and vague enough that no-one can tell for sure. But it's impossible that the jury would have found outrageousness if the speech were at the funeral, but was merely labor picketing, or casual conversation among a few people gathered on a corner, or the Our condolences for your and our nation's loss. Nor -- returning to the thread -- is it proper to discuss the location as a conduct issue. The choice of which ordinance to target is just as much a speech factor as the choice of what to say. It may be regulable under the Ward standard for content-neutral time, place, and manner regulations; but this is not such a content-neutral regulation. It may be restrictable under strict scrutiny, as Marci suggests, though I don't think so. (I think a content-neutral limit on all picketing in front of a funeral would likely pass muster, by analogy to Frisby v. Schultz, if it's limited to speech in front of the funeral; but, as I said, the IIED tort is not such a content-neutral law.) But any restriction on this should be judged as the speech restriction that it is, not as a conduct restriction. Eugene
Re: Speech and conduct
No it is not being regulated just because of the content of the speech. That speech in other places, other times, other means is not banned or sanctioned. People disrupting a funeral even with entirely different words would still be disrupting a funeral. The disruption can be prohibited -- the conduct can be regulated. This was disruptive. Of course it was more than disruptive and the tort required the physical and the aural and the emotional aspects. But it is still a mischaracterization to call it purely or merely speech content regulation. Or to treat it as if that is all that is going on. Our free speech jurisprudence is neither as consistent nor as rigid as Eugene would like -- and that seems to be the bottom line here -- I prefer more play in the joints here for regulating this sort of thing (and would like to find some way to regulate hate speech more than we do -- though that is even more problematic for reasons often enough discussed -- though I think we could fashion something there involving targeting individuals or groups in ways calculated to cause various sorts of harms, but that is still much tougher than this case). I don't see an appellate court pushing the boundaries of free speech in the direction Eugene wants in this case. Indeed, I hope this one gets appealed because I think we could see some further recognition that society can demand some level of civility even where speech is concerned. I would expect this to be treated ultimately as closer to time-place-manner standard (innumerable alternative means available) than a straight-up content based regulation.Indeed, if one wants to establish the principle of no content-based regulation ever, this is about the worst case one can imagine in which to do it (short of genuine national security disclosures). Steve On 11/2/07, Volokh, Eugene [EMAIL PROTECTED] wrote: Setting aside all the other factors for now, I hope we could agree that viewing this sort of picketing as conduct is the wrong way for courts to go. The picketing is offensive precisely because of the message it communicates. The noncommunicative components (the presence of people, the fact that they occupy space on the sidewalk, the fact that they carry signs on sticks) are irrelevant here (unless the picketing somehow blocked the driveway into the cemetery or some such, which I don't believe it did). Treating this speech as conduct works as poorly, I think, as Justice Blackmun's view in Cohen v. California that Cohen's absurd and immature antic ... was mainly conduct and little speech. Whatever the bottom line, it seems to me that courts should confront the true nature of what's going on here, and what's going on here is speech that's offensive precisely because it's speech. Eugene Alan Brownstein writes: I think Eugene is right. This is, at its core, a content-based restriction on speech. The context, in my judgment, is primarily relevant to three questions: whether the penalty on speech can be justified because of the consequences of the speech, whether the context is such that we want to view this expression as something other than speech (some kind of conduct) or whether we view this as some kind of speech that is not protected by the first amendment. It is never been clear to me which of these reasons explains why certain kinds of expressive activities can be punished as harassment - but clearly it is permissible to punish harassment in certain circumstances. The tort of IIED raises a similar mystery. I'm not suggesting that there isn't an answer that justifies at least some applications of the cause of action. But I don't think courts have told us what that answer is yet. I would prefer that the situation in this case (and others like it) be resolved by statutory limits on disruptive speech on public property adjacent to places like cemeteries, funeral homes, hospitals etc.. The benefit of a statute is that it can designate the contexts which we consider totally inappropriate for extremely hurtful speech at specific times and places. IIED leaves that question up to the discretion of juries. ___ 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. -- Prof. Steven Jamar Howard University School of Law ___ 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
Re: Speech and conduct
It occurs to me that all of this could have been avoided if the father of the deceased soldier, in a fit of grief-driven rage, had taken Mr. Phelp's (or possibly Mr. Phelp's daughter's) life and then claimed temporary insanity. But then I might have been tempted to show up at the funeral with a sign that says God hates homobigots.Would the Westboro Baptist Church have the right to sue me for damages? Frankly, I suspect that this decision is going to be overturned, or at the very least, the amount will be lowered dramatically. All I can say it's a damn shame there's no law against malicious bad manners in this country. Jean Dudley You can't get blood from a turnip. P. S. Would someone kindly clue me in on what IIED stands for, please? ___ 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: Speech and conduct
I'm largely (90%?) in agreement with Eugene, but I'd add a slight caveat. I think that some (small?) part of the offensiveness or invasion of privacy here is, indeed, the mere presence of strangers in close proximity to the funeral - an event that, as a matter of social custom, decency, and respect for the dead and their families, ordinarily is confined to those who are in some broad sense invited guests who wish to participate in or observe the ceremony. Compare Frisby on targeted picketing. If my house is the target of picketing, I think that some (small?) part of the offensiveness or invasion-of-privacy concern is that a stranger is persistently standing right in front of my house - even though he is on public property and is not legally trespassing. It bothers me simply that he is *there*; that he's not moving on. (I'd be concerned even if the person carried a blank picket sign or carried no sign at all and said nothing at all.) To this limited extent, in both Frisby and in the funeral context, the harm is grounded in part on an intangible privacy concern about the presence of strangers, which might be characterized as a concern about conduct and which is independent of any message. 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] *** -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 2:43 AM To: Law Religion issues for Law Academics Subject: Speech and conduct Setting aside all the other factors for now, I hope we could agree that viewing this sort of picketing as conduct is the wrong way for courts to go. The picketing is offensive precisely because of the message it communicates. The noncommunicative components (the presence of people, the fact that they occupy space on the sidewalk, the fact that they carry signs on sticks) are irrelevant here (unless the picketing somehow blocked the driveway into the cemetery or some such, which I don't believe it did). Treating this speech as conduct works as poorly, I think, as Justice Blackmun's view in Cohen v. California that Cohen's absurd and immature antic ... was mainly conduct and little speech. Whatever the bottom line, it seems to me that courts should confront the true nature of what's going on here, and what's going on here is speech that's offensive precisely because it's speech. Eugene Alan Brownstein writes: I think Eugene is right. This is, at its core, a content-based restriction on speech. The context, in my judgment, is primarily relevant to three questions: whether the penalty on speech can be justified because of the consequences of the speech, whether the context is such that we want to view this expression as something other than speech (some kind of conduct) or whether we view this as some kind of speech that is not protected by the first amendment. It is never been clear to me which of these reasons explains why certain kinds of expressive activities can be punished as harassment - but clearly it is permissible to punish harassment in certain circumstances. The tort of IIED raises a similar mystery. I'm not suggesting that there isn't an answer that justifies at least some applications of the cause of action. But I don't think courts have told us what that answer is yet. I would prefer that the situation in this case (and others like it) be resolved by statutory limits on disruptive speech on public property adjacent to places like cemeteries, funeral homes, hospitals etc.. The benefit of a statute is that it can designate the contexts which we consider totally inappropriate for extremely hurtful speech at specific times and places. IIED leaves that question up to the discretion of juries. ___ 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. ___ 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: Speech and conduct
I assumed it's Intentional Infliction of Emotional Distress. I would assume the damages will be dramatically reduced, but the point's been made. As with OJ, the defendants haven't anything like the assets needed to satisfy even the actual damages part of the award. Susan Jean Dudley wrote: It occurs to me that all of this could have been avoided if the father of the deceased soldier, in a fit of grief-driven rage, had taken Mr. Phelp's (or possibly Mr. Phelp's daughter's) life and then claimed temporary insanity. But then I might have been tempted to show up at the funeral with a sign that says God hates homobigots.Would the Westboro Baptist Church have the right to sue me for damages? Frankly, I suspect that this decision is going to be overturned, or at the very least, the amount will be lowered dramatically. All I can say it's a damn shame there's no law against malicious bad manners in this country. Jean Dudley You can't get blood from a turnip. P. S. Would someone kindly clue me in on what IIED stands for, please? ___ 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. ___ 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: Speech and conduct
No, we don't all agree on a rigid speech-conduct distinction. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 2:43 AM To: Law Religion issues for Law Academics Subject: Speech and conduct Setting aside all the other factors for now, I hope we could agree that viewing this sort of picketing as conduct is the wrong way for courts to go. The picketing is offensive precisely because of the message it communicates. The noncommunicative components (the presence of people, the fact that they occupy space on the sidewalk, the fact that they carry signs on sticks) are irrelevant here (unless the picketing somehow blocked the driveway into the cemetery or some such, which I don't believe it did). Treating this speech as conduct works as poorly, I think, as Justice Blackmun's view in Cohen v. California that Cohen's absurd and immature antic ... was mainly conduct and little speech. Whatever the bottom line, it seems to me that courts should confront the true nature of what's going on here, and what's going on here is speech that's offensive precisely because it's speech. Eugene Alan Brownstein writes: I think Eugene is right. This is, at its core, a content-based restriction on speech. The context, in my judgment, is primarily relevant to three questions: whether the penalty on speech can be justified because of the consequences of the speech, whether the context is such that we want to view this expression as something other than speech (some kind of conduct) or whether we view this as some kind of speech that is not protected by the first amendment. It is never been clear to me which of these reasons explains why certain kinds of expressive activities can be punished as harassment - but clearly it is permissible to punish harassment in certain circumstances. The tort of IIED raises a similar mystery. I'm not suggesting that there isn't an answer that justifies at least some applications of the cause of action. But I don't think courts have told us what that answer is yet. I would prefer that the situation in this case (and others like it) be resolved by statutory limits on disruptive speech on public property adjacent to places like cemeteries, funeral homes, hospitals etc.. The benefit of a statute is that it can designate the contexts which we consider totally inappropriate for extremely hurtful speech at specific times and places. IIED leaves that question up to the discretion of juries. ___ 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. ___ 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: Speech and conduct
I appreciate Dan's point; but I think that if the mere presence of strangers is a factor here, it's a small factor indeed. If there were a half dozen people standing on the street corner near the funeral talking to each other, the attendees to the funeral might be very slightly put off, but very slightly. If there were people engaged in labor picketing against the cemetery's practices, they might think it's mildly disrespectful, but not remotely outrageous. If there were people standing with signs saying Our condolences for your and our nation's loss, the attendees would likely be pleased, unless they were a very private sort of people, in which case they might find this a little tacky or annoying. What makes the behavior allegedly outrageous infliction of severe emotional distress (or for that matter an actionable invasion of privacy) is precisely the speech. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Conkle, Daniel O. Sent: Friday, November 02, 2007 6:47 AM To: 'Law Religion issues for Law Academics' Subject: RE: Speech and conduct I'm largely (90%?) in agreement with Eugene, but I'd add a slight caveat. I think that some (small?) part of the offensiveness or invasion of privacy here is, indeed, the mere presence of strangers in close proximity to the funeral - an event that, as a matter of social custom, decency, and respect for the dead and their families, ordinarily is confined to those who are in some broad sense invited guests who wish to participate in or observe the ceremony. Compare Frisby on targeted picketing. If my house is the target of picketing, I think that some (small?) part of the offensiveness or invasion-of-privacy concern is that a stranger is persistently standing right in front of my house - even though he is on public property and is not legally trespassing. It bothers me simply that he is *there*; that he's not moving on. (I'd be concerned even if the person carried a blank picket sign or carried no sign at all and said nothing at all.) To this limited extent, in both Frisby and in the funeral context, the harm is grounded in part on an intangible privacy concern about the presence of strangers, which might be characterized as a concern about conduct and which is independent of any message. 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] *** -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 2:43 AM To: Law Religion issues for Law Academics Subject: Speech and conduct Setting aside all the other factors for now, I hope we could agree that viewing this sort of picketing as conduct is the wrong way for courts to go. The picketing is offensive precisely because of the message it communicates. The noncommunicative components (the presence of people, the fact that they occupy space on the sidewalk, the fact that they carry signs on sticks) are irrelevant here (unless the picketing somehow blocked the driveway into the cemetery or some such, which I don't believe it did). Treating this speech as conduct works as poorly, I think, as Justice Blackmun's view in Cohen v. California that Cohen's absurd and immature antic ... was mainly conduct and little speech. Whatever the bottom line, it seems to me that courts should confront the true nature of what's going on here, and what's going on here is speech that's offensive precisely because it's speech. Eugene Alan Brownstein writes: I think Eugene is right. This is, at its core, a content-based restriction on speech. The context, in my judgment, is primarily relevant to three questions: whether the penalty on speech can be justified because of the consequences of the speech, whether the context is such that we want to view this expression as something other than speech (some kind of conduct) or whether we view this as some kind of speech that is not protected by the first amendment. It is never been clear to me which of these reasons explains why certain kinds of expressive activities can be punished as harassment - but clearly it is permissible to punish harassment in certain circumstances. The tort of IIED raises a similar mystery. I'm not suggesting that there isn't an answer that justifies at least some applications of the cause of action. But I don't think courts have told us what that answer is yet. I would prefer that the situation in this case (and others like it) be resolved by statutory limits on disruptive speech on public property adjacent
RE: Speech and conduct
A content-based ban on speech isn't a conduct ban just because speech in other places, other times, other means is not banned or sanctioned. It's just a content-based restriction rather than a categorical content-based prohibition. And that it leaves open ample alternative channels is *not* enough to save it if it's content-based. See, e.g., Boos v. Barry; Carey v. Brown; and many more. Moreover, the speakers here are disrupting a funeral precisely because of what they say, as well as where they say it. IIED liability would surely not have been imposed here if the speakers carried signs saying This cemetery is unfair to labor, or Our condolences to you and to our nation. So it's a classic example of a content-based restriction, even if one limited by place; that's no more a permissible time, place, and manner restriction than is a ban on antiwar demonstrations in front of government buildings, or antigovernment parades (while antigovernment billboards are allowed), or profanity on jackets (if spoken profanity were permitted). Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Friday, November 02, 2007 4:30 AM To: Law Religion issues for Law Academics Subject: Re: Speech and conduct No it is not being regulated just because of the content of the speech. That speech in other places, other times, other means is not banned or sanctioned. People disrupting a funeral even with entirely different words would still be disrupting a funeral. The disruption can be prohibited -- the conduct can be regulated. This was disruptive. Of course it was more than disruptive and the tort required the physical and the aural and the emotional aspects. But it is still a mischaracterization to call it purely or merely speech content regulation. Or to treat it as if that is all that is going on. Our free speech jurisprudence is neither as consistent nor as rigid as Eugene would like -- and that seems to be the bottom line here -- I prefer more play in the joints here for regulating this sort of thing (and would like to find some way to regulate hate speech more than we do -- though that is even more problematic for reasons often enough discussed -- though I think we could fashion something there involving targeting individuals or groups in ways calculated to cause various sorts of harms, but that is still much tougher than this case). I don't see an appellate court pushing the boundaries of free speech in the direction Eugene wants in this case. Indeed, I hope this one gets appealed because I think we could see some further recognition that society can demand some level of civility even where speech is concerned. I would expect this to be treated ultimately as closer to time-place-manner standard (innumerable alternative means available) than a straight-up content based regulation.Indeed, if one wants to establish the principle of no content-based regulation ever, this is about the worst case one can imagine in which to do it (short of genuine national security disclosures). Steve On 11/2/07, Volokh, Eugene [EMAIL PROTECTED] wrote: Setting aside all the other factors for now, I hope we could agree that viewing this sort of picketing as conduct is the wrong way for courts to go. The picketing is offensive precisely because of the message it communicates. The noncommunicative components (the presence of people, the fact that they occupy space on the sidewalk, the fact that they carry signs on sticks) are irrelevant here (unless the picketing somehow blocked the driveway into the cemetery or some such, which I don't believe it did). Treating this speech as conduct works as poorly, I think, as Justice Blackmun's view in Cohen v. California that Cohen's absurd and immature antic ... was mainly conduct and little speech. Whatever the bottom line, it seems to me that courts should confront the true nature of what's going on here, and what's going on here is speech that's offensive precisely because it's speech. Eugene Alan Brownstein writes: I think Eugene is right. This is, at its core, a content-based restriction on speech. The context, in my judgment, is primarily relevant to three questions: whether the penalty on speech can be justified because of the consequences of the speech, whether the context is such that we want to view this expression as something other than speech (some kind of conduct) or whether we view this as some kind of speech that is not protected by the first amendment. It is never been clear to me which of these reasons explains why certain kinds of expressive activities can be punished as harassment - but clearly it is permissible to punish harassment in certain circumstances
