I can't speak for Marty, but Chip is correct regarding my position regarding the constitutionality of an IIED claim arising out of a funeral protest that violated a valid, content-neutral time place and manner law. Vik Amar and I take this position in an article, "Death, Grief, and Freedom of Speech: Does the First Amendment Permit Protection Against the Harassment and Commandeering of Funeral Mourners" in the Funerals, Fire & Brimstone symposium issue of Cardozo Law Review de novo. Like Chip, we would be far more uncertain about an IIED claim without a valid time and place law that provided guidance to protestors as to "where they had no right to be." Perhaps there should be an exception for public figures. But maybe the First Amendment wouldn't be turned upside down if a former Secretary of State was attending the funeral of his son or daughter and protestors were told they could not come closer than 100 or 200 feet to the grieving parent to tell him (or her) that they were thanking G-d for his child's death.
Courts would still have to carefully monitor the application of the tort to expressive activities. Not every violation of a time, place and manner law can be the basis of an IIED claim. I think death and mourning at funerals is sufficiently different and deserving of special respect that a claim might be permitted in this narrow circumstance. Eugene is clearly correct that we have no working operational definition of harassment and the term is often used imprecisely and inconsistently. But the Court discusses preventing harassment as part of its justification for upholding the content neutral speech regulations at issue in Frisby and Hill v. Colorado. It is vague and indeterminate, but there is a sense that certain expressive activities in particular locations and circumstances are so deliberately and unacceptably hurtful and disruptive of the target's ability to do things of special value (obtaining medical care, finding refuge in the sanctity of one's home, and, here, mourning the death of family and friends at funeral services) that they can be prohibited -- notwithstanding the fact that the speech is on a matter of public concern. Because harassment is so hard to define, we are often better off protecting victims from it through formally neutral time, place and manner regulations instead of anti-harassment laws. The clarity and generality of the time, place, and manner law outweighs the lilihood that the law may be prohibiting more speech than is necessary to accomplish its anti-harassment objective. But no one really believes that these time, place, and manner regulations are going to be applied without regard to the content of the speech being expressed. (Who thinks anti-residential picketing laws will be applied against friends and neighbors standing in front of a person's home holding signs that say "Happy Anniversary.") Alan Brownstein ________________________________ From: [email protected] [[email protected]] On Behalf Of Ira Lupu [[email protected]] Sent: Thursday, March 03, 2011 5:13 PM To: Law & Religion issues for Law Academics Cc: [email protected] Subject: Re: "Harassment" It sounds like Marty Lederman and Alan Brownstein both think that the Phelps (carrying the same signs as in the Snyder case) would have no First Amendment defense to an IIED suit that arose from their protesting immediately in front of a building in which a funeral service was being held, especially if a valid, content-neutral state law prohibited such protests (that is, a time and place law). And it sounds like Eugene thinks they would have a valid First Amendment defense to tort liability on those facts. Am I assessing those positions correctly? I think the Court left that question open (the case I put would have the Phelps "where they had no right to be" if the time/place law is valid). I think I side with what I am assuming is the Lederman-Brownstein position, but I'm not sure, and I'd be interested to read more. (I'm even less certain about the right result if there were no such time/place law, but the protest was right in the face of the mourners at the funeral service.) On Thu, Mar 3, 2011 at 7:55 PM, Volokh, Eugene <[email protected]<mailto:[email protected]>> wrote: I don’t think “harassment” is a sufficiently well-defined legal term to be helpful here. To be sure, it is defined – though vaguely and very broadly – in hostile environment harassment law, but that definition isn’t applicable here. There’s also telephone harassment law, but that is (rightly) limited to speech that is said to a particular unwilling person, and not to other, potentially willing, listeners. And occasionally one has anti-“harassment” orders, which tend to be pretty vaguely defined. One way or the other, I don’t think that the term “harassment,” given its many definitions, each of which is not terribly clear (except possibly telephone harassment), is that helpful to the discussion. Persistent following is a different story. I’m inclined to say that persistently following someone, whether to speak to him or not, could indeed be banned, though I haven’t thought enough about the subject to determine where the line between punishable following and unpunishable following should be drawn. Likewise, perhaps there are other bases on which certain kinds of speech, even on matters of public concern, could be restricted; I’d just like to see a more specific proposed definition. Eugene
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