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
Mark: Would you say that anti-abortion protests at abortion clinics are
likewise "targeted speech," and, if offensive enough in their viewpoint,
punishable fighting words? What about labor picketing at plants that
are being struck?
I realize that you might argue that this speech is less outrage
It seems to me that this would make "matter of public concern"
even mushier and viewpoint-based than it already is (or perhaps it would
just illustrate the mushiness and potential for viewpoint
discrimination). As best I can tell, the protesters are arguing that
the nation has sinned by al
I too found that comment a little cryptic. If Michael meant to be
doctrinal rather than just attitudinally predictive, my guess would be
that he didn't mean that a different First Amendment rule would apply,
but that those decisions might somehow justify a conclusion that there's
a compelling gove
Well, as Hustler v. Falwell shows, insult-as-weapon is hardly a
monopoly of the political right. Nor is Phelps exactly representative
of the political right; the political right isn't known for saying
"Thank God for Dead Soldiers." Likewise, flagburning and other forms of
insult-as-weapon
Dan is right about how the cases would come out under model 2; and I
also see little lost in banning ugly bride contests as such. But the trouble,
it seems to me, is in coming up with any clear and sound distinction between
public concern and private concern.
In particular,
I'm puzzled -- do Romer and Lawrence really justify not just
protection of gays against governmental discrimination, but a different
First Amendment rule for antigay speech than for pro-gay-rights speech
or a wide range of other speech?
Eugene
Michael Newsom writes:
> That said,
Some of what I am about to say I have said before. But here goes
anyway.
What would be the risk of viewpoint discrimination, in a practical,
real-world, sense? I am not aware of any other groups who attempt to
inflict severe emotional distress on the occasion of the funeral of a
soldier killed i
Could you be a bit more specific about the factual context of the Code
Pink demonstrations? How is it analogous to Westboro's conduct?
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Esenberg,
Richard
Sent: Thursday, November 01, 2007 12:48 PM
To: Law &
As for Eugene's models 1 and 2, and his preference for model 1, I think of two
examples I often use in teaching Hustler: (a) suppose Falwell's mother had
been the IIED plaintiff in the Hustler case with respect to the very same
parody (unlike Falwell, not a public figure plaintiff, but presumab
> On 11/1/07, Volokh, Eugene <[EMAIL PROTECTED]> wrote:
> > (1) How does Hustler teach that IIED is a viable tort, as
> > applied to otherwise protected speech (or at least
> otherwise protected
> > speech on matters of public concern). True, it didn't hold
> that IIED
> > is impermi
I think that (1) otherwise protected speech (i.e., speech that
falls outside the exceptions, and any new strict-scrutiny-justified
exclusions) should be as immune from IIED liability as from other
liability. But (2) as a fallback, I would say that at the very least
speech on matters of pub
I understand that there is a clear sense in which the protestors
comments involve speech on a matter of public concern. But the
relationship between that matter of public concern and the family whose
son has died and is being buried is pretty attenuated. If the protestors
just said "John Doe should
Just to be clear here, Eugene. Leaving vagueness aside for the moment:
Are you arguing that all IIED decisions holding defendants liable are
unconstitutional unless they fall within the conventional categories of
unprotected speech (or since they are content-based, unless they can
satisfy strict s
On 11/1/07, Volokh, Eugene <[EMAIL PROTECTED]> wrote:
> (1) How does Hustler teach that IIED is a viable tort, as
> applied to otherwise protected speech (or at least otherwise protected
> speech on matters of public concern). True, it didn't hold that IIED is
> impermissible as to otherw
You're right, I think. It's not an answer most soldiers and religious leaders
would necessarily like, but it's right.
It's more a problem in irony and public relations than law. It might work as a
segment on Boston Legal, but it's not enough of a legal issue for a legal
journal.
That's w
(1) How does Hustler teach that IIED is a viable tort, as
applied to otherwise protected speech (or at least otherwise protected
speech on matters of public concern). True, it didn't hold that IIED is
impermissible as to otherwise protected speech -- but did it ever hold
that it is viable
Well, the Free Exercise Clause protects against *governmental*
restrictions on religious practice -- it doesn't protect against
*nongovernmental* insults of those who are engaged in religious
practice. So whether the case is Cantwell v. Connecticut, Kunz v. New
York, or this case, restricting
I'm sorry, Ed, but I'm missing the problem. Free exercise or free
speech -- is that the conflict you are positing as in conflict? If
so, I assume it is not a question directed to me since I don't think
the limitation on free speech violates the constitution even without
the free exercise overlay
Just out of curiosity, what happens in a hypothetical if the family of the
soldier claims the funeral is a religious service which deserves special
protection from such disruption? Let's assume the family has a long record of
attending church -- oh, heck, let's assume the soldier is himself a R
Let me get this straight. We want a clear rule that applies easily in
all cases and so we just say let any speech happen because we can't
ever tell anything with certainty.
Sorry, Eugene, but the law hasn't ever been that way and certainly is
not that way in the free speech as you well know.
Def
But this is targeted speech. The protesters may not say explicitly and
specifically refer to the dead soldier or the dead soldier's family, but the
context makes the targeting clear. As I said, the protesters can do this
anywhere else, and at any other time. It's the proximity ot the funeral th
Well, many people feel extremely outraged by a wide range of speech
-- and if their outrage could translate into lawful speech restrictions,
then I expect that this range would only expand.
Eugene
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED
I'm not sure if this is technically fighting words, but I suspect many
people would agree with Mark as to the feelings generated by these
protests.
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, Mark
Sent: Thursday, November 01, 2007 10:46 AM
To: Law & Religion issu
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 thi
But Cohen v. California made clear that "fighting words" require
some individualized insult of the targeted listener. Under the view you
describe, any speech that may offend a group of people -- for instance,
harsh public criticisms of religiosity, or Christianity, or capitalists,
or whatever
Then I suppose I'd be inclined to argue that IIED as applied in this case is
constitutional on Eugene's approach, because what the protesters were doing was
very much like fighting words and should not be considered to be protected
speech. I'm not sure the quote is correct, but I think H.L. Menc
I think the IIED tort is unconstitutionally vague on its face, as
applied to otherwise protected speech. (I don't think there's any First
Amendment problem with applying it to nonspeech conduct.) The arguments
in favor of allowing facial challenges -- the need to avoid
unconstitutional chilli
I agree that it is the question -- but it's important to recognize,
I think, that this is a core content-based speech restriction case, not
just one that is to be judged under the more forgiving Ward v. Rock
Against Racism content-neutral time/place/manner standard.
__
Frisby's conclusion that the ban was content-neutral could be
faulted, for these very reasons. But at least the ordinance in Frisby
was facially content-neutral, and didn't call for any discretionary
decision about content. An "outrageousness" standard surely does call
for discretionary decis
Why? Seems like a "reasonable person would find it outrageous"
test is unconstitutionally vague under Grayned et al., precisely because
different people have such different standards of outrageousness.
Eugene
> -Original Message-
> From: [EMAIL PROTECTED]
> [mailto:[EMAI
1) That a narrow content-neutral restriction is constitutional
doesn't mean that a narrower content-based restriction is
constitutional. Compare Carey v. Brown with Frisby v. Schultz, or Saia
v. New York with Kovacs v. Cooper. Or consider a volume limit but only
for concerts that express
I don't think there is any vagueness at all in the tort of IIED as applied to
these funeral protests. I don't think the defendants were in doubt at all that
what they were doing would inflict serious emotional distress and would be
thought by almost everyone other than themselves (maybe even inc
Well, it certainly seems outrageous to me but I suspect that other reasonable
people might regard the Code Pink demonstrations outside the Walter Reed Army
Medical Center as, if not equally outrageous, at least comparable in their
tendency to upset those who are presumably in a place in which th
Sorry. Messed up.
Joel L. Sogol
811 21st Ave.
Tuscaloosa, ALabama 35401
ph (205) 345-0966
fx (205) 345-0971
email: [EMAIL PROTECTED]
Ben Franklin observed that truth wins a fair fight - which is why we have
evidence rules in U.S. courts.
-Original Message-
From: [EMAIL PROTECTED]
[
Bsog
Joel L. Sogol
811 21st Ave.
Tuscaloosa, ALabama 35401
ph (205) 345-0966
fx (205) 345-0971
email: [EMAIL PROTECTED]
Ben Franklin observed that truth wins a fair fight - which is why we have
evidence rules in U.S. courts.
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL
Could we not ban ALL demonstrations at funerals of private people?
That would be content neutral. And we can ban the greater, can we not
also ban the lesser? (And you know I hate referencing a Scalian
argument!)
Steve
On 11/1/07, Conkle, Daniel O. <[EMAIL PROTECTED]> wrote:
>
>
> Isn't this an
What makes it outrageous is not the content per se, but the content in
the context. And doesn't the old workhorse, our erstwhile objective
standard of "outrageous to a reasonable person", save it from
unconstitutional vagueness?
Steve
On 11/1/07, Volokh, Eugene <[EMAIL PROTECTED]> wrote:
>
Isn't this analogous to Frisby, approving a ban on targeted picketing as
"content-neutral" even though the "privacy" interest being protected in Frisby
was, in reality, linked in substantial part to protecting homeowners' from
being offended by the content of picketers' speech? In Frisby, the C
I agree on the vagueness problems. The statutes prohibiting
picketing at funerals have their own problems, but they can avoid
vagueness and define knowable penalties.
Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>:
Isn't a restriction on "speech that is outrageous, and
inflicts
sev
Certainly the claim must have been based on the content of the speech, but it
may be a TPM argument that is claimed to make that content actionable. In that
regard, I would be interested in knowing how the jury was instructed. Phelps
and his merry band once picketed my church in downtown Milwauk
Isn't a restriction on "speech that is outrageous, and inflicts
severe emotional distress, where the speaker knows there's a high
probability that severe emotional distress will be inflicted"
unconstitutionally vague, suffering from all three of the Grayned
problems (risk of viewpoint discr
Well, it's a combination of the two. Hustler was a pure content
case. Here the content matters, as Eugene says, and no doubt
contributed to the size of the verdict. But the time and place and
personal confrontation was also essential to the verdict. If
defendants had published the same thin
Yet surely the claim must have been based on the content of the
speech as well as the time, place, and manner. It's extremely unlikely
that a jury would find friendly, neutral, or even respectfully
disagreeing demonstrating outside a funeral to be "outrageous" enough to
create severe emotional
And, of course, unlike in Hustler, the persons at whom the speech was directed
here were not public figures.
On this point, I highly recommend Robert Post's article on Hustler, "The
Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic
Deliberation, & Hustler Magazine v. Fa
Tough call. Hustler v. Falwell says that intentional infliction of
emotional distress, when based on political speech, requires actual
malice. But there the IIED claim was based on the content of the
speech. Here, assuming the plaintiff's lawyer made a sensible jury
argument, the IIED claim
From:Father wins millions from war funeral pickets
http://www.msnbc.msn.com/id/21566280/
"The church members testified they are following their religious beliefs by
spreading the message that soldiers are dying because America is too
tolerant of homosexuality."
"Attorneys for the church
47 matches
Mail list logo
