The penultimate sentence of Alan's message ("Although there are important
limiting facts in this case that distinguish it from a clearer “picketing at a
funeral case,” at its core this case raises the question of whether speakers
can choose a location for their offensive speech that targets their victims in
an egregiously hurtful way when alternative sites for communicating their
message to the public are equally accessible and at least as likely to be heard
by potentially willing listeners") evokes for me the planned march by the
American Nazi party in Skokie, Illinois in the 1970's. But in that case, there
was reason to believe that the Nazi Party really wanted to reach (and frighten)
the Jews of Skokie as well as reach others. In Snyder, is there any reason to
think that Phelps and his crew wanted to reach the Snyder family (and other
funeral-goers) at all? Perhaps the inclusion by Phelps of anti-Catholic as
well as anti-gay messages suggests that the answer is yes.
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: Tue, 9 Mar 2010 13:13:32 -0800
>From: [email protected] (on behalf of "Brownstein, Alan"
><[email protected]>)
>Subject: RE: Cert. granted in Snyder v. Phelps.
>To: Law & Religion issues for Law Academics <[email protected]>
>
> Eugene notes an important distinction (between
> targeted speech and public speech) and I agree with
> a lot of what he says. But I still find this case to
> be a difficult one that lies somewhere between the
> dissent in Pacifica and the situation in Rowan. If
> making sure that people who are potentially willing
> to receive the speaker's message have an opportunity
> to do so is our primary concern, restricting
> picketing at a funeral allows the speaker the
> freedom to communicate his message everywhere else
> in the city through any medium that is available to
> communicate public messages. The choice of the
> funeral as the side for expression does not maximize
> the likelihood that the speech will be heard by
> potentially willing listeners. It probably does the
> reverse. It does maximize the offense and injury the
> speech will cause to the targeted audience.
>
>
>
> I think that bans on public broadcasting as in
> Pacifica are far more restrictive of speech to a
> willing audience than restricting speech at
> funerals. I agree with Eugene that speech on a labor
> picket line should be more protected than telephone
> calls to strikebreakers, but that is in part because
> the picket line directly addresses the people the
> union is trying to reach for legitimate, persuasive
> reasons - those who do business with the targeted
> company. "I'm glad your strikebreaker son is dead"
> signs at a strikebreaker's funeral would be a harder
> case for me.
>
>
>
> Although there are important limiting facts in this
> case that distinguish it from a clearer "picketing
> at a funeral case," at its core this case raises
> the question of whether speakers can choose a
> location for their offensive speech that targets
> their victims in an egregiously hurtful way when
> alternative sites for communicating their message to
> the public are equally accessible and at least as
> likely to be heard by potentially willing listeners.
> I'm still thinking about the answer to that
> question.
>
>
>
> Alan Brownstein
>
>
>
>
>
>
>
> From: [email protected]
> [mailto:[email protected]] On
> Behalf Of Volokh, Eugene
> Sent: Tuesday, March 09, 2010 11:36 AM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Cert. granted in Snyder v. Phelps.
>
>
>
> I've thought some about the problem, and
> my view is that there is a substantial difference
> between speech that is said just to a particular
> person who one is sure is not interested in hearing
> the message, and speech that is said to a broader
> group that might well include willing listeners.
> The former speech is likely to have at most modest
> value, at least to the listener; the latter speech
> might have considerably more value. That's a rough
> cut, and there might be a different result as to,
> for instance, speech to political candidates or
> political officials (see, e.g., the U.S. v. Popa
> telephone harassment case from the D.C. Circuit
> several years ago). And there might be some
> contexts where the listener would have to say no,
> and the speaker would thus get one bite at the
> apple, rather than having liability be imposed even
> for the first approach on the theory that the
> speaker must have known the listener was
> uninterested. But I think some such distinction is
> necessary, and is in fact doing the work here.
>
>
>
> One reason I think so flows from playing
> out this hypothetical in other contexts. Say, for
> instance, that union members call strikebreakers to
> tell them what scum the strikebreakers are; I'm
> pretty sure that this would rightly be restrictable
> under telephone harassment statutes, at least after
> the recipients say "stop calling me" and perhaps
> even before. Cf. Rowan v. U.S. Post Office Dep't,
> upholding householders' powers to stop further
> mailings to their homes. But I take it that the
> same speech said on the picket line would be
> protected. The difference, I think, is that at
> least some people who see the speech might be
> willing listeners (even if many of the target
> audience are not). Barring the speech to protect
> the unwilling listeners would interfere with speech
> to the willing listeners; barring telephone
> harassment would not, precisely because it is heard
> just by the unwilling listener.
>
>
>
> The same is true even for speech that
> isn't particularly offensive because of its content.
> If someone calls to tell me to repent and accept
> Jesus, and I tell him to stop calling me, I think
> the law can give my request legally binding effect
> (again, see Rowan). But billboards and
> demonstrations to that effect must be protected,
> even if I can't avoid seeing the message.
>
>
>
> Perhaps I'm wrong here; but I do think
> that Rowan supports such a distinction, and that the
> distinction is the best defense both for Rowan and
> for telephone harassment law. Justice Brennan's FCC
> v. Pacifica dissent likewise supports such a
> distinction: "In Rowan, the Court upheld a statute,
> permitting householders to require that mail
> advertisers stop sending them lewd or offensive
> materials and remove their names from mailing lists.
> Unlike the situation here, householders who wished
> to receive the sender's communications were not
> prevented from doing so." Of course, the majority
> took a different view, but only limited to
> vulgarities; I would think that even given Pacifica,
> speech on the radio would be much more protected
> against listener vetoes than telephone calls,
> precisely because giving a listener such a veto
> would interfere with speech to "[listeners] who
> wished to receive the [speaker's] communications."
>
>
>
> This leaves the question whether the
> speech in Snyder might still fit inside the "said
> just to a particular person" category, perhaps
> expanded to include all the people who are going to
> the funeral. I don't think so; while those might
> have been a special target of both the Web site and
> the demonstration 1000 feet from the funeral, the
> speech there seemed likely to also be seen by other
> listeners who are potentially willing to receive it,
> and intended to be seen by such listeners.
>
>
>
> Eugene
>
>
>
>
>
>
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