Suppose someone called the grieving father on the phone and told him how happy the caller was to learn that his son was dead because that demonstrated G-d's anger over United States tolerance of homosexuality etc. Would that be actionable as IIED or, alternatively, telephone harassment? Either action would necessarily be content-based. Would it make any difference if the caller notified the press that they were placing such calls and received media attention for doing so?
Alan Brownstein From: [email protected] [mailto:[email protected]] On Behalf Of Marc Stern Sent: Monday, March 08, 2010 12:40 PM To: Law & Religion issues for Law Academics Subject: RE: Cert. granted in Snyder v. Phelps. Aren't we running issues together? The question of whether liability attaches for picketing at a funeral (assuming the statute creates a tort right of action)is different than the question of whether the First Amendment allows damages for later comments no matter how offensive on the internet. Second, the invasion of privacy here raises free speech issues which have been controversial since Time v Hill,which is whether a right to privacy exists in people who are ,voluntarily or not, in the public eye. Third, the question outrageous conduct may be a facially neutral rule,but inevitably in practice it involves subjective content based judgments. Would a jury have found that Snyder's' right to be free of outrageous conduct was violated by pickets bearing signs blaming Cheney for their son's death? if not,then isn't viewpoint discrimination inherent in the tort? I really don't know how this case should be decided,but it seems more complicated than the discussion so far.The case also should raises the question of whether,and if and if so when, bruised feeling ought to count for much in the context of regulating public debate. Marc Stern ________________________________ From: [email protected] [mailto:[email protected]] On Behalf Of Steven Jamar Sent: Monday, March 08, 2010 1:43 PM To: Law & Religion issues for Law Academics Subject: Re: Cert. granted in Snyder v. Phelps. The state could regulate all picketing by positive law such as a statute or a regulation, so long as it were content neutral, right? But can't use an established tort to accomplish the same thing in a much smaller set of cases? Is that your point Eugene? What is being regulated by the tort: outrageous invasion of privacy. Isn't that content neutral? Does a secondary effects analysis play here at all? The tort isn't targeting speech per se, nor the content of the speech in terms of the topic -- just the deleterious effects of it in a very limited circumstance. On another plane, should the Constitution protect this sort of conduct at all? And if not, is the distinction between a tort based claim used as a regulation and a legislative enactment or regulatory rule sufficiently meaningful to justify different results? Steve On Mon, Mar 8, 2010 at 1:34 PM, Volokh, Eugene <[email protected]<mailto:[email protected]>> wrote: My fear is that the Justices might just think the decision below is wrong; the cert petition only alleged a split with a Sixth Circuit case that upheld a content-neutral funeral picketing ordinance, which (as Chip implicitly suggests) is quite different from the content-based decision in this case. Nonetheless, there is a good deal of tension in lower court cases as to whether the IIED tort is unconstitutional only when the claim is brought by a public figure based on speech on matters of public concern, or also when it's brought by a private figure. I'm not sure that there's a square split among circuit cases and state supreme court cases, but I think there is plenty of disagreement among appellate cases generally, and possibly a square split that the clerk found, even if the petition didn't allege it. Eugene > -----Original Message----- > From: > [email protected]<mailto:[email protected]> > [mailto:religionlaw-<mailto:religionlaw-> > [email protected]<mailto:[email protected]>] On Behalf Of Ira > (Chip) Lupu > Sent: Monday, March 08, 2010 10:27 AM > To: Law & Religion issues for Law Academics > Subject: Re: Cert. granted in Snyder v. Phelps. > > The 4th Circuit held, on First Amendment grounds, that the state could not > attach > tort liability (intentional infliction of emotional distress, intrusion upon > seclusion, > and civil conspiracy) to the protests engaged in by Phelps and others near the > funeral of the deceased soldier, or to the later-posted comments on Phelps > website. Is there a Circuit split on cases of this sort? I am wondering > what led > four (or more) Justices to vote for a cert grant in this case (especially in > light of > what seems to be the well-recognized state power to create content-neutral and > viewpoint-neutral regulations about picketing in close proximity to a funeral > service). > > > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > > ---- Original message ---- > >Date: Mon, 8 Mar 2010 08:14:39 -0800 (PST) > >From: > >[email protected]<mailto:[email protected]> > > (on behalf of Jeffrey Shulman > <[email protected]<mailto:[email protected]>>) > >Subject: Cert. granted in Snyder v. Phelps. > >To: [email protected]<mailto:[email protected]> > > > > Though not framed by the Court as raising a question > > of religious liberty, this case will be of interest > > to those concerned with issues related`to religious > > speech. From ScotusBlog: "The Supreme Court, > > taking on the emotionally charged issue of picketing > > protests at the funerals of soldiers killed in > > wartime, agreed Monday to consider reinstating a $5 > > million damages verdict against a Kansas preacher > > and his anti-gay crusade. . . . The funeral > > picketing case (Snyder v. Phelps, et al., 09-751) > > focuses on a significant question of First Amendment > > law: the degree of constitutional protection given > > to private remarks made about a private person, > > occurring in a largely private setting. The family > > of the dead soldier had won a verdict before a jury, > > but that was overturned by the Fourth Circuit Court, > > finding that the signs displayed at the funeral in > > western Maryland and later comments on an anti-gay > > website were protected speech. The petition for > > review seeks the Court's protection for families > > attending a funeral from "unwanted" remarks or > > displays by protesters." > > > > Jeffrey Shulman > > > > Jeffrey Shulman > > Associate Professor > > Legal Research and Writing > > Georgetown University Law Center > >________________ > >_______________________________________________ > >To post, send message to > >[email protected]<mailto:[email protected]> > >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 > [email protected]<mailto:[email protected]> > 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 [email protected]<mailto:[email protected]> 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 Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc.
_______________________________________________ To post, send message to [email protected] 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.
