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.
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