Re: Cert. granted in Snyder v. Phelps.
I think the argument for liability in Hustler was considerably weaker. What actual harm did Falwell experience? Nobody reading Hustler could have expected the piece was factual. Different set of parameters I also think that the doctrine of defamation is not solely about the speech but also about the value in protecting reputations related to one's livelihood. Perhaps Eugene is suggesting these cases can be decided on speech category and characteristics without reference to context or balancing against government interest? I don't see how and I think the government has a compelling interest in protecting people from intentional torts when they are in a weakened state as one is with the death of a family member or comrade. Funerals are special Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Volokh, Eugene vol...@law.ucla.edu Date: Wed, 10 Mar 2010 11:20:31 To: 'Law Religion issues for Law Academics'religionlaw@lists.ucla.edu Subject: RE: Cert. granted in Snyder v. Phelps. I sympathize with the sentiment in favor of liability here (as I did in Hustler v. Falwell), though I ultimately disagree with it. But I would hope that arguments for liability could be made without too much deforming of existing doctrine. The Rock Against Racism cases are expressly focused on *content-neutral* restrictions that are aimed at effects of the speech caused by things other than its content (e.g., noise). Whatever might be the result here, Rock Against Racism can be of no help. Likewise, defamation liability is premised on the assertion that false statements of fact lack constitutional value (Gertz). But that very paragraph in Gertz starts this way: We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. Whatever limits one might urge on this principle based on the supposedly special status of funerals, and speech that is about the recently deceased (recall that in this case the liability was based partly on the speech on the Web site, so it isn't even limited to speech near a funeral), defamation liability is not a helpful analogy here. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Wednesday, March 10, 2010 11:14 AM To: Law Religion issues for Law Academics Subject: Re: Cert. granted in Snyder v. Phelps. The more I think about twos the less I am inclined to agree with Eugene on this one I don't think Skokie is an apt analogy because the speech there was not directed at any one person or persons. Nor was it intended to disrupt or impact one of life's most sacred and solemn events. The speakers have chosen funerals as their targets to improve tje effectiveness of their essay This is more like defamation or perhaps rock against racism. You have a right to speak but no right to optimal delivery or harming others intentionally. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Volokh, Eugene vol...@law.ucla.edu Date: Wed, 10 Mar 2010 10:57:22 To: 'Law Religion issues for Law Academics'religionlaw@lists.ucla.edu Subject: RE: Cert. granted in Snyder v. Phelps. I take it that the analogy would have been disruption by sound: The government is certainly entitled to restrict speech that interferes with others' speech (or other matters) because of the noise that it creates, and many such restrictions are content-neutral. The disruption there is unrelated to the content of the speech, and consists simply of the distraction created by the sound, and in extreme cases the inability to hear the other sounds. But I agree that in the absence of loud noise (Eric asked whether there was such noise that could be heard from the funeral, but I think there wasn't), there is no analogy: The alleged disruption did not involve the content-neutral distraction caused by the sound, but rather the offense caused by the content of the speech. That makes the restriction unconstitutional, though punishment of people (constituents of an institution or otherwise) for shouting down a speaker generally would be constitutional. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Wednesday, March 10, 2010 12:45 PM To: 'Law Religion issues for Law Academics' Subject: RE: Cert. granted in Snyder v. Phelps. I'm scratching my head at Eric's analogy; perhaps he could elaborate? On the one hand, we have constituents of an institution disrupting (however inappropriately) an institutional ceremony to protest an institutional policy. On the
RE: Cert. granted in Snyder v. Phelps.
Eugene is right -- I was asking about the sound aspect, i.e. could the protest be heard during the funeral ceremony, were they using megaphones, etc. Eugene -- if the shouting could be heard during the funeral ceremony, do you think IIED liability would be constitutional, in addition to TMP regulations, which I gather you think are okay? And could a jury constitutionally decide to give additional damages based on hateful content, or even just content that runs contrary to the message of the ceremony (honoring vs. dishonoring the soldier's sacrifice)? PLEASE NOTE NEW ADDRESS Eric Rassbach National Litigation Director The Becket Fund for Religious Liberty 3000 K St. NW, Suite 220 Washington, DC 20007 USA +1.202.349.7214 (tel.) +1.202.955.0090 (fax) www.becketfund.org NOTICE: This e-mail is from a law firm, The Becket Fund for Religious Liberty, and is intended solely for the use of the person(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of The Becket Fund, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to The Becket Fund in reply that you expect or want it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of The Becket Fund, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality. -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, March 10, 2010 1:57 PM To: 'Law Religion issues for Law Academics' Subject: RE: Cert. granted in Snyder v. Phelps. I take it that the analogy would have been disruption by sound: The government is certainly entitled to restrict speech that interferes with others' speech (or other matters) because of the noise that it creates, and many such restrictions are content-neutral. The disruption there is unrelated to the content of the speech, and consists simply of the distraction created by the sound, and in extreme cases the inability to hear the other sounds. But I agree that in the absence of loud noise (Eric asked whether there was such noise that could be heard from the funeral, but I think there wasn't), there is no analogy: The alleged disruption did not involve the content-neutral distraction caused by the sound, but rather the offense caused by the content of the speech. That makes the restriction unconstitutional, though punishment of people (constituents of an institution or otherwise) for shouting down a speaker generally would be constitutional. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Wednesday, March 10, 2010 12:45 PM To: 'Law Religion issues for Law Academics' Subject: RE: Cert. granted in Snyder v. Phelps. I'm scratching my head at Eric's analogy; perhaps he could elaborate? On the one hand, we have constituents of an institution disrupting (however inappropriately) an institutional ceremony to protest an institutional policy. On the other hand, we have outsiders directing a crude and emotionally disturbing message toward a private religious service. The two situations are analogous how? -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Wednesday, March 10, 2010 10:01 AM To: Law Religion issues for Law Academics Subject: RE: Cert. granted in Snyder v. Phelps. I am sorry if this fact has already been circulated on the list, but was the protest at issue loud enough to be heard at the location of, and during, the funeral ceremony? If so, would this fact pattern be analogous to disruption of a public university graduation ceremony by students protesting tuition hikes? PLEASE NOTE NEW ADDRESS Eric Rassbach National Litigation Director The Becket Fund for Religious Liberty 3000 K St. NW, Suite 220 Washington, DC 20007 USA +1.202.349.7214 (tel.) +1.202.955.0090 (fax) www.becketfund.org NOTICE: This e-mail is from a law firm, The Becket Fund for Religious Liberty, and is intended solely for the use of the person(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of The Becket Fund, do not construe anything in this e-mail to make you a client unless it contains a specific
RE: Cert. granted in Snyder v. Phelps.
Eric Rassbach writes: Eugene is right -- I was asking about the sound aspect, i.e. could the protest be heard during the funeral ceremony, were they using megaphones, etc. Eugene -- if the shouting could be heard during the funeral ceremony, do you think IIED liability would be constitutional, in addition to TMP regulations, which I gather you think are okay? And could a jury constitutionally decide to give additional damages based on hateful content, or even just content that runs contrary to the message of the ceremony (honoring vs. dishonoring the soldier's sacrifice)? I think a content-neutral TPM regulation would be constitutional, but it seems to me that IIED liability with no standard other than outrageousness would very likely end up being content-based. I suppose that if the jury were instructed that they could find liability solely if they concluded that the audibility of *any* sound during a funeral ceremony was outrageous, and caused severe emotional distress simply because some sound was audible, that would be a content-neutral basis for liability -- but I also can't see how a reasonable jury could conclude that those elements could be met simply based on the audibility of a sound. Eugene ___ 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: Cert. granted in Snyder v. Phelps.
I should think that I'd be extremely distressed to see an article in a magazine -- even a clearly non-factual article -- that talked about my supposed sexual encounter with my mother, however fictional the encounter would clearly be. The jury found that Falwell was indeed seriously distressed, and I can't say such a conclusion is unreasonable. I also don't quite see what it means to say that defamation is not solely about the speech. No speech restriction is solely about the speech; all speech restrictions punish speech because they see the speech as causing some harm, directly or indirectly. But what makes defamation law permissible is that it applies to a category of speech that is generally seen as being of no or very low value -- false statements of fact, especially ones said with the requisite mens rea. (I stress just the low value of the speech, and not its supposedly great harm, because statements that offend someone by putting him in a false light, see Time v. Hill and Cantrell v. Forest City Publishing, are restrictable under the same standards. But in any event, the falsity of the statement is necessary for liability to be constitutionally permissible under this exception, whether or not such falsity is generally sufficient.) I can understand arguments that there should be a special First Amendment exception for funerals, or for certain kinds of speech about a person who has recently died, even if the speech isn't near a funeral (again, recall that this case involved speech on a Web site as well), though I'd like to know more about the proposed scope of the exception and the specific justification for the exception. But the defamation analogy doesn't work here, I think, just as the Ward v. Rock Against Racism analogy doesn't work. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Wednesday, March 10, 2010 12:01 PM To: Law Religion issues for Law Academics Subject: Re: Cert. granted in Snyder v. Phelps. I think the argument for liability in Hustler was considerably weaker. What actual harm did Falwell experience? Nobody reading Hustler could have expected the piece was factual. Different set of parameters I also think that the doctrine of defamation is not solely about the speech but also about the value in protecting reputations related to one's livelihood. Perhaps Eugene is suggesting these cases can be decided on speech category and characteristics without reference to context or balancing against government interest? I don't see how and I think the government has a compelling interest in protecting people from intentional torts when they are in a weakened state as one is with the death of a family member or comrade. Funerals are special Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Volokh, Eugene vol...@law.ucla.edu Date: Wed, 10 Mar 2010 11:20:31 To: 'Law Religion issues for Law Academics'religionlaw@lists.ucla.edu Subject: RE: Cert. granted in Snyder v. Phelps. I sympathize with the sentiment in favor of liability here (as I did in Hustler v. Falwell), though I ultimately disagree with it. But I would hope that arguments for liability could be made without too much deforming of existing doctrine. The Rock Against Racism cases are expressly focused on *content-neutral* restrictions that are aimed at effects of the speech caused by things other than its content (e.g., noise). Whatever might be the result here, Rock Against Racism can be of no help. Likewise, defamation liability is premised on the assertion that false statements of fact lack constitutional value (Gertz). But that very paragraph in Gertz starts this way: We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. Whatever limits one might urge on this principle based on the supposedly special status of funerals, and speech that is about the recently deceased (recall that in this case the liability was based partly on the speech on the Web site, so it isn't even limited to speech near a funeral), defamation liability is not a helpful analogy here. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Wednesday, March 10, 2010 11:14 AM To: Law Religion issues for Law Academics Subject: Re: Cert. granted in Snyder v. Phelps. The more I think about twos the less I am inclined to agree with Eugene on this one I don't think Skokie is an apt analogy because the speech there was not directed at any one person
Re: Cert. granted in Snyder v. Phelps.
I think Eugene has oversimplified defamation law here. We hold some tortfeasors to an actual malice standard while others are held to more lax standard. So while false statements of fact are a constant minimum element of proof (because they lack value AND are very likely to cause harm to reputation) the tort liability is determined according to the role played by the speaker and the role played by the recipient of the message. And in private person victim cases a more onerous standard than actual malice can be applied to the speaker. In these cases the tort must be intentional. So you have already limited the impact if the tort considerably. I think when one adds that funerals and death are instances where the victim is vulnerable and deserving of protection the argument for liability in these cases is strong Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Volokh, Eugene vol...@law.ucla.edu Date: Wed, 10 Mar 2010 12:08:25 To: 'Law Religion issues for Law Academics'religionlaw@lists.ucla.edu Subject: RE: Cert. granted in Snyder v. Phelps. I should think that I'd be extremely distressed to see an article in a magazine -- even a clearly non-factual article -- that talked about my supposed sexual encounter with my mother, however fictional the encounter would clearly be. The jury found that Falwell was indeed seriously distressed, and I can't say such a conclusion is unreasonable. I also don't quite see what it means to say that defamation is not solely about the speech. No speech restriction is solely about the speech; all speech restrictions punish speech because they see the speech as causing some harm, directly or indirectly. But what makes defamation law permissible is that it applies to a category of speech that is generally seen as being of no or very low value -- false statements of fact, especially ones said with the requisite mens rea. (I stress just the low value of the speech, and not its supposedly great harm, because statements that offend someone by putting him in a false light, see Time v. Hill and Cantrell v. Forest City Publishing, are restrictable under the same standards. But in any event, the falsity of the statement is necessary for liability to be constitutionally permissible under this exception, whether or not such falsity is generally sufficient.) I can understand arguments that there should be a special First Amendment exception for funerals, or for certain kinds of speech about a person who has recently died, even if the speech isn't near a funeral (again, recall that this case involved speech on a Web site as well), though I'd like to know more about the proposed scope of the exception and the specific justification for the exception. But the defamation analogy doesn't work here, I think, just as the Ward v. Rock Against Racism analogy doesn't work. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Wednesday, March 10, 2010 12:01 PM To: Law Religion issues for Law Academics Subject: Re: Cert. granted in Snyder v. Phelps. I think the argument for liability in Hustler was considerably weaker. What actual harm did Falwell experience? Nobody reading Hustler could have expected the piece was factual. Different set of parameters I also think that the doctrine of defamation is not solely about the speech but also about the value in protecting reputations related to one's livelihood. Perhaps Eugene is suggesting these cases can be decided on speech category and characteristics without reference to context or balancing against government interest? I don't see how and I think the government has a compelling interest in protecting people from intentional torts when they are in a weakened state as one is with the death of a family member or comrade. Funerals are special Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Volokh, Eugene vol...@law.ucla.edu Date: Wed, 10 Mar 2010 11:20:31 To: 'Law Religion issues for Law Academics'religionlaw@lists.ucla.edu Subject: RE: Cert. granted in Snyder v. Phelps. I sympathize with the sentiment in favor of liability here (as I did in Hustler v. Falwell), though I ultimately disagree with it. But I would hope that arguments for liability could be made without too much deforming of existing doctrine. The Rock Against Racism cases are expressly focused on *content-neutral* restrictions that are aimed at effects of the speech caused by things other than its content (e.g., noise). Whatever might be the result here, Rock Against Racism can be of no help. Likewise, defamation liability is premised on the assertion that false statements of fact lack constitutional value (Gertz). But that very paragraph in Gertz starts this way:
RE: Cert. granted in Snyder v. Phelps.
Well, the premise of the constitutionality of libel law -- whether under an actual malice standard, a negligence standard, or a (possibly permissible) strict liability standard -- is that false statements of fact lack constitutional value; the mens rea standard is there chiefly to make sure that libel law doesn't unduly deter true statements of fact. Here, we don't have false statements of fact. That the emotional distress tort requires recklessness or purpose as to another matter (the tendency of the speech to create severe emotional distress) doesn't validate it by analogy to libel law -- libel law asks not about mental state in the abstract, but about the mental state as to the *false statement of fact*. Again, if one wants to argue for an exception for speech, whether opinion, true statement, or false statement, that inflicts severe emotional distress -- or just does so near a funeral, or just does so with regard to a recently dead person, or what have you -- that's fine, and the question would then be what the exact boundaries of the exception are, and how the exception can be defended. But libel law does not offer a helpful analogy. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Wednesday, March 10, 2010 12:58 PM To: Law Religion issues for Law Academics Subject: Re: Cert. granted in Snyder v. Phelps. I think Eugene has oversimplified defamation law here. We hold some tortfeasors to an actual malice standard while others are held to more lax standard. So while false statements of fact are a constant minimum element of proof (because they lack value AND are very likely to cause harm to reputation) the tort liability is determined according to the role played by the speaker and the role played by the recipient of the message. And in private person victim cases a more onerous standard than actual malice can be applied to the speaker. In these cases the tort must be intentional. So you have already limited the impact if the tort considerably. I think when one adds that funerals and death are instances where the victim is vulnerable and deserving of protection the argument for liability in these cases is strong Marci ___ 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: Cert. granted in Snyder v. Phelps.
Under international law, freedom of speech can be limited when it impinges the rights of others provided the limitations are part of the law of the country. Surely that is sound principle that is in fact at least at part at work in many 1st Amendment speech cases that would otherwise be even more incoherent. There are interests other than defamation and triggers other than falsity, regardless of Eugene's fondness for staying so close to certain precedents and certain key factors or rules. As we step into uncharted territory, I think the court has time and again demonstrated a willingness to find a new principle to justify its decision. So even if Eugene's reading of prior cases is correct (I think it is correct as far as it goes, though a bit too cramped), I don't think that determines the case. Nor should it. I think hate speech impinges on the rights of others in much the same way as defamation does and furthermore has societal dimensions beyond the individual. That is, the speech of some is limited by the rights of others and the interests of society. We may treat hate speech as protected speech, but it is not so protected that we cannot recognize that a hate motivation proven by hate speech can enhance a criminal penalty. Here, the disruption is invasive and the content of the speech is not the target of the tort -- the target of the tort is the right of privacy of the people attending the funeral. That is an established, protected right. The content of the words, as in the hate speech category, affect the result, but are not the essence of the invasion. If we look at what is at stake for first amendment speech principles, and the other interests at stake, I think it plausible that the court will see this as not bound by Eugene's reading of precedent, but rather as yet another case of a different stripe with a different calculus applied. As Eugene has repeatedly opined, the current free speech jurisprudence is largely based on categorizing the speech -- but that is not all there is to it. One need not create another type of speech that is excluded from protection here -- or at least not in the categorical way I usually think of such exclusions -- but rather all that is needed is a recognition that in fact speech is not an absolute right and it may be restricted by a wide range of factors. Thinking of the tort of invasion of privacy as a TPM restriction seems to make much more sense than treating it as strictly analogous to the defamation cases. Steve On Wed, Mar 10, 2010 at 4:08 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Well, the premise of the constitutionality of libel law -- whether under an actual malice standard, a negligence standard, or a (possibly permissible) strict liability standard -- is that false statements of fact lack constitutional value; the mens rea standard is there chiefly to make sure that libel law doesn't unduly deter true statements of fact. Here, we don't have false statements of fact. That the emotional distress tort requires recklessness or purpose as to another matter (the tendency of the speech to create severe emotional distress) doesn't validate it by analogy to libel law -- libel law asks not about mental state in the abstract, but about the mental state as to the *false statement of fact*. Again, if one wants to argue for an exception for speech, whether opinion, true statement, or false statement, that inflicts severe emotional distress -- or just does so near a funeral, or just does so with regard to a recently dead person, or what have you -- that's fine, and the question would then be what the exact boundaries of the exception are, and how the exception can be defended. But libel law does not offer a helpful analogy. Eugene -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc. ___ 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: Cert. granted in Snyder v. Phelps.
I share Eugene's hope that the Court does not deform current doctrine. Although I am not at all confident that it will do so, the Court could reverse the fourth circuit on narrow grounds. The Epic included what were alleged to be provably false statements of fact (Albert and Julie . . . taught Matthew . . .to divorce, and to commit adultery.). Writing narrowly, the Court could disagree with the panel's conclusion that those false statements of fact were obvious rhetorical hyperbole, and hold that they therefore lack any constitutional protection. Whether particular false statements of fact are sufficient to support a defamation claim (the district court held they were not) is a different question from whether they are constitutionally protected speech. Accordingly the Court could hold consistent with current doctrine that the state is free to provide tort remedies for injurious false statements of fact, and that whether it chooses to characterize the remedy it provides as defamation, IIED, or intrusion into seclusion is of no moment since the speech is constitutionally unprotected. Having established that the judgment rests in part on constitutionally unprotected speech, the Court could then turn to jury instruction 21, agree with the panel that the giving of that instruction was reversible error, noting that it fails to distinguish between permissible (false statements) and impermissible (outrageously offensive statements) grounds for liability and perhaps that it delegates to a jury determinations of matters reserved to the court, and that therefore the giving of that instruction requires a new trial focused on the alleged false statements of fact. I would prefer to see the Court affirm the panel, but given that there is no obvious circuit conflict to resolve, it's tempting to speculate that it took the case to reverse. But there are a range of ways to reverse, and, Citizens United notwithstanding, perhaps the Court will choose to write narrowly. Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting Volokh, Eugene vol...@law.ucla.edu: Well, the premise of the constitutionality of libel law -- whether under an actual malice standard, a negligence standard, or a (possibly permissible) strict liability standard -- is that false statements of fact lack constitutional value; the mens rea standard is there chiefly to make sure that libel law doesn't unduly deter true statements of fact. Here, we don't have false statements of fact. That the emotional distress tort requires recklessness or purpose as to another matter (the tendency of the speech to create severe emotional distress) doesn't validate it by analogy to libel law -- libel law asks not about mental state in the abstract, but about the mental state as to the *false statement of fact*. Again, if one wants to argue for an exception for speech, whether opinion, true statement, or false statement, that inflicts severe emotional distress -- or just does so near a funeral, or just does so with regard to a recently dead person, or what have you -- that's fine, and the question would then be what the exact boundaries of the exception are, and how the exception can be defended. But libel law does not offer a helpful analogy. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Wednesday, March 10, 2010 12:58 PM To: Law Religion issues for Law Academics Subject: Re: Cert. granted in Snyder v. Phelps. I think Eugene has oversimplified defamation law here. We hold some tortfeasors to an actual malice standard while others are held to more lax standard. So while false statements of fact are a constant minimum element of proof (because they lack value AND are very likely to cause harm to reputation) the tort liability is determined according to the role played by the speaker and the role played by the recipient of the message. And in private person victim cases a more onerous standard than actual malice can be applied to the speaker. In these cases the tort must be intentional. So you have already limited the impact if the tort considerably. I think when one adds that funerals and death are instances where the victim is vulnerable and deserving of protection the argument for liability in these cases is strong Marci ___ 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
Re: Cert. granted in Snyder v. Phelps.
Steve has said much more eloquently what I was trying to say to Eugene. I agree with Steve that the categories drawn by Eugene are not as hard and fast as he has depicted them. This case is teed up to be one of those cases where law professors are shocked by the reasoning, but only because of unjustified assumptions about the rigidity and portent of previous precedents. The bigger picture here is that tort law typically protects the vulnerable and funerals are a paradigmatic situation where the one being targeted by the speaker is in a vulnerable position deserving societal solicitude and protection. (To Marc's point that there is too slippery of a slope here because if you include funerals you have to include marriages -- it seems to me that the reasoning assumes funerals are special because of their religious content. From the standpoint of tort law, I disagree. Every person has to face funerals and death regardless of creed and it is uniformly a trying time; in contrast, celebrations do not put the individual in the position of vulnerability that facing death does). Marci In a message dated 3/10/2010 4:31:47 P.M. Eastern Standard Time, stevenja...@gmail.com writes: Under international law, freedom of speech can be limited when it impinges the rights of others provided the limitations are part of the law of the country. Surely that is sound principle that is in fact at least at part at work in many 1st Amendment speech cases that would otherwise be even more incoherent. There are interests other than defamation and triggers other than falsity, regardless of Eugene's fondness for staying so close to certain precedents and certain key factors or rules. As we step into uncharted territory, I think the court has time and again demonstrated a willingness to find a new principle to justify its decision. So even if Eugene's reading of prior cases is correct (I think it is correct as far as it goes, though a bit too cramped), I don't think that determines the case. Nor should it. I think hate speech impinges on the rights of others in much the same way as defamation does and furthermore has societal dimensions beyond the individual. That is, the speech of some is limited by the rights of others and the interests of society. We may treat hate speech as protected speech, but it is not so protected that we cannot recognize that a hate motivation proven by hate speech can enhance a criminal penalty. Here, the disruption is invasive and the content of the speech is not the target of the tort -- the target of the tort is the right of privacy of the people attending the funeral. That is an established, protected right. The content of the words, as in the hate speech category, affect the result, but are not the essence of the invasion. If we look at what is at stake for first amendment speech principles, and the other interests at stake, I think it plausible that the court will see this as not bound by Eugene's reading of precedent, but rather as yet another case of a different stripe with a different calculus applied. As Eugene has repeatedly opined, the current free speech jurisprudence is largely based on categorizing the speech -- but that is not all there is to it. One need not create another type of speech that is excluded from protection here -- or at least not in the categorical way I usually think of such exclusions -- but rather all that is needed is a recognition that in fact speech is not an absolute right and it may be restricted by a wide range of factors. Thinking of the tort of invasion of privacy as a TPM restriction seems to make much more sense than treating it as strictly analogous to the defamation cases. Steve ___ 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: Cert. granted in Snyder v. Phelps.
So , Marci, you would allow this church to picket same sex weddings? And you would bar pickets from a funeral at which cheney spoke about the importance of the iraq war? Marc - Original Message - From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu To: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu Sent: Wed Mar 10 18:12:40 2010 Subject: Re: Cert. granted in Snyder v. Phelps. Steve has said much more eloquently what I was trying to say to Eugene. I agree with Steve that the categories drawn by Eugene are not as hard and fast as he has depicted them. This case is teed up to be one of those cases where law professors are shocked by the reasoning, but only because of unjustified assumptions about the rigidity and portent of previous precedents. The bigger picture here is that tort law typically protects the vulnerable and funerals are a paradigmatic situation where the one being targeted by the speaker is in a vulnerable position deserving societal solicitude and protection. (To Marc's point that there is too slippery of a slope here because if you include funerals you have to include marriages -- it seems to me that the reasoning assumes funerals are special because of their religious content. From the standpoint of tort law, I disagree. Every person has to face funerals and death regardless of creed and it is uniformly a trying time; in contrast, celebrations do not put the individual in the position of vulnerability that facing death does). Marci In a message dated 3/10/2010 4:31:47 P.M. Eastern Standard Time, stevenja...@gmail.com writes: Under international law, freedom of speech can be limited when it impinges the rights of others provided the limitations are part of the law of the country. Surely that is sound principle that is in fact at least at part at work in many 1st Amendment speech cases that would otherwise be even more incoherent. There are interests other than defamation and triggers other than falsity, regardless of Eugene's fondness for staying so close to certain precedents and certain key factors or rules. As we step into uncharted territory, I think the court has time and again demonstrated a willingness to find a new principle to justify its decision. So even if Eugene's reading of prior cases is correct (I think it is correct as far as it goes, though a bit too cramped), I don't think that determines the case. Nor should it. I think hate speech impinges on the rights of others in much the same way as defamation does and furthermore has societal dimensions beyond the individual. That is, the speech of some is limited by the rights of others and the interests of society. We may treat hate speech as protected speech, but it is not so protected that we cannot recognize that a hate motivation proven by hate speech can enhance a criminal penalty. Here, the disruption is invasive and the content of the speech is not the target of the tort -- the target of the tort is the right of privacy of the people attending the funeral. That is an established, protected right. The content of the words, as in the hate speech category, affect the result, but are not the essence of the invasion. If we look at what is at stake for first amendment speech principles, and the other interests at stake, I think it plausible that the court will see this as not bound by Eugene's reading of precedent, but rather as yet another case of a different stripe with a different calculus applied. As Eugene has repeatedly opined, the current free speech jurisprudence is largely based on categorizing the speech -- but that is not all there is to it. One need not create another type of speech that is excluded from protection here -- or at least not in the categorical way I usually think of such exclusions -- but rather all that is needed is a recognition that in fact speech is not an absolute right and it may be restricted by a wide range of factors. Thinking of the tort of invasion of privacy as a TPM restriction seems to make much more sense than treating it as strictly analogous to the defamation cases. Steve ___ 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.
