Re: Speech and conduct
No it is not being regulated just because of the content of the speech. That speech in other places, other times, other means is not banned or sanctioned. People disrupting a funeral even with entirely different words would still be disrupting a funeral. The disruption can be prohibited -- the conduct can be regulated. This was disruptive. Of course it was more than disruptive and the tort required the physical and the aural and the emotional aspects. But it is still a mischaracterization to call it purely or merely speech content regulation. Or to treat it as if that is all that is going on. Our free speech jurisprudence is neither as consistent nor as rigid as Eugene would like -- and that seems to be the bottom line here -- I prefer more play in the joints here for regulating this sort of thing (and would like to find some way to regulate hate speech more than we do -- though that is even more problematic for reasons often enough discussed -- though I think we could fashion something there involving targeting individuals or groups in ways calculated to cause various sorts of harms, but that is still much tougher than this case). I don't see an appellate court pushing the boundaries of free speech in the direction Eugene wants in this case. Indeed, I hope this one gets appealed because I think we could see some further recognition that society can demand some level of civility even where speech is concerned. I would expect this to be treated ultimately as closer to time-place-manner standard (innumerable alternative means available) than a straight-up content based regulation.Indeed, if one wants to establish the principle of no content-based regulation ever, this is about the worst case one can imagine in which to do it (short of genuine national security disclosures). Steve On 11/2/07, Volokh, Eugene [EMAIL PROTECTED] wrote: Setting aside all the other factors for now, I hope we could agree that viewing this sort of picketing as conduct is the wrong way for courts to go. The picketing is offensive precisely because of the message it communicates. The noncommunicative components (the presence of people, the fact that they occupy space on the sidewalk, the fact that they carry signs on sticks) are irrelevant here (unless the picketing somehow blocked the driveway into the cemetery or some such, which I don't believe it did). Treating this speech as conduct works as poorly, I think, as Justice Blackmun's view in Cohen v. California that Cohen's absurd and immature antic ... was mainly conduct and little speech. Whatever the bottom line, it seems to me that courts should confront the true nature of what's going on here, and what's going on here is speech that's offensive precisely because it's speech. Eugene Alan Brownstein writes: I think Eugene is right. This is, at its core, a content-based restriction on speech. The context, in my judgment, is primarily relevant to three questions: whether the penalty on speech can be justified because of the consequences of the speech, whether the context is such that we want to view this expression as something other than speech (some kind of conduct) or whether we view this as some kind of speech that is not protected by the first amendment. It is never been clear to me which of these reasons explains why certain kinds of expressive activities can be punished as harassment - but clearly it is permissible to punish harassment in certain circumstances. The tort of IIED raises a similar mystery. I'm not suggesting that there isn't an answer that justifies at least some applications of the cause of action. But I don't think courts have told us what that answer is yet. I would prefer that the situation in this case (and others like it) be resolved by statutory limits on disruptive speech on public property adjacent to places like cemeteries, funeral homes, hospitals etc.. The benefit of a statute is that it can designate the contexts which we consider totally inappropriate for extremely hurtful speech at specific times and places. IIED leaves that question up to the discretion of juries. ___ 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. -- Prof. Steven Jamar Howard University School of Law ___ 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
Re: Speech and conduct
It occurs to me that all of this could have been avoided if the father of the deceased soldier, in a fit of grief-driven rage, had taken Mr. Phelp's (or possibly Mr. Phelp's daughter's) life and then claimed temporary insanity. But then I might have been tempted to show up at the funeral with a sign that says God hates homobigots.Would the Westboro Baptist Church have the right to sue me for damages? Frankly, I suspect that this decision is going to be overturned, or at the very least, the amount will be lowered dramatically. All I can say it's a damn shame there's no law against malicious bad manners in this country. Jean Dudley You can't get blood from a turnip. P. S. Would someone kindly clue me in on what IIED stands for, please? ___ 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.
Funeral protests
Yesterday I was struck by the coincidence of the discussion of the Phelps' group's picketing at military funerals on the day that Paul Tibbets' death was being reported, as follows by a newswire service (AP, I think): COLUMBUS, Ohio - Paul Warfield Tibbets Jr., the pilot and commander of the B-29 that dropped the atomic bomb on Hiroshima, Japan, died Thursday, a spokesman said. He was 92. Tibbets died at his Columbus home after a two month decline from a variety of health problems, said Gerry Newhouse, a longtime friend. Tibbets had requested no funeral and no headstone, fearing it would provide his detractors with a place to protest, Newhouse said. He said Tibbets wanted to be cremated, his ashes scattered, but his family had not yet determined how he would be laid to rest. Obviously whatever speech rule applies to the Phelps' despicable protests has to apply to the protests that likely would have accompanied Tibbets' funeral, which is why I bring it to the list's attention. Kim Colby [EMAIL PROTECTED] ___ 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: IIED and vagueness
If the actual spatial relation between the location of the activity and those who are offended by it matters, it might be helpful for people to look at a map of Walter Reed Hospital, where the Code Pink demonstratins occurred, and compare the location to that in the funeral case. (The Code Pink demonstratinos occurred, as I recall, at the Georgia Avenue entrance to the Walter Reed grounds, and if so, they occurred at a location rather far removed from any building in which resturned soldiers stayed as a regular matter; the entrance is a bit closer to some outbuildings on the grounds, the functions of which I am ignorant.) Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Areeda 223 Cambridge, MA 02138 ph: 617-496-4451 (office); 202-374-9571 (mobile) From: [EMAIL PROTECTED] on behalf of Esenberg, Richard Sent: Fri 11/2/2007 9:20 AM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness As others have suggested, I think it goes like this. It seems quite possible to suppose that military families will be offended by demonstrators, either, as with Code Pink, outside a military hospital (or, say at a military funeral), who suggest that their loved ones were wounded or killed in vain. Heck, we don't even have to speculate because news reports about those demonstrations reflected that families and servicemen were mightily offended. If you want to say that there ought to be some rule that requires some level of nastiness that may not have been present at the Code Pink demonstrations, it's not hard to imagine (there are ample real world examples) that the demonstrators referred to soldiers as baby killers or to those who sent them overseas as war criminal. Incidentally, I would be interested in references to studies showing that violence and insult are not evenly distributed across the political spectrum. Rick Esenberg Marquette University School of Law From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Newsom Michael [EMAIL PROTECTED] Sent: Thursday, November 01, 2007 5:58 PM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness Could you be a bit more specific about the factual context of the Code Pink demonstrations? How is it analogous to Westboro's conduct? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Thursday, November 01, 2007 12:48 PM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness Well, it certainly seems outrageous to me but I suspect that other reasonable people might regard the Code Pink demonstrations outside the Walter Reed Army Medical Center as, if not equally outrageous, at least comparable in their tendency to upset those who are presumably in a place in which there is some expectation of privacy and repose. (Don't we regard hospitals, like funerals, as places in which a certain decorum can be expected?) A standard that would potentially restrict such protests seems problematic and, again, it seems even more troubling to make it, as seems to have been done here, a jury question. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Thursday, November 01, 2007 11:17 AM To: Law Religion issues for Law Academics Subject: Re: IIED and vagueness What makes it outrageous is not the content per se, but the content in the context. And doesn't the old workhorse, our erstwhile objective standard of outrageous to a reasonable person, save it from unconstitutional vagueness? Steve On 11/1/07, Volokh, Eugene [EMAIL PROTECTED] wrote: Isn't a restriction on speech that is outrageous, and inflicts severe emotional distress, where the speaker knows there's a high probability that severe emotional distress will be inflicted unconstitutionally vague, suffering from all three of the Grayned problems (risk of viewpoint discrimination in enforcement, difficulty of telling when one is complying with the law, and resulting deterrent effect)? 'Outrageousness' in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression. (I also think it's unconstitutionally even setting aside the vagueness, but as in many instances the vagueness is such an important problem that it makes it hard to do the rest of the constitutional analysis, since it's so hard to tell just what speech the law will restrict, even if limited to cases where plaintiffs are private figures.) Eugene -- Prof.
RE: Speech and conduct
I'm largely (90%?) in agreement with Eugene, but I'd add a slight caveat. I think that some (small?) part of the offensiveness or invasion of privacy here is, indeed, the mere presence of strangers in close proximity to the funeral - an event that, as a matter of social custom, decency, and respect for the dead and their families, ordinarily is confined to those who are in some broad sense invited guests who wish to participate in or observe the ceremony. Compare Frisby on targeted picketing. If my house is the target of picketing, I think that some (small?) part of the offensiveness or invasion-of-privacy concern is that a stranger is persistently standing right in front of my house - even though he is on public property and is not legally trespassing. It bothers me simply that he is *there*; that he's not moving on. (I'd be concerned even if the person carried a blank picket sign or carried no sign at all and said nothing at all.) To this limited extent, in both Frisby and in the funeral context, the harm is grounded in part on an intangible privacy concern about the presence of strangers, which might be characterized as a concern about conduct and which is independent of any message. Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 2:43 AM To: Law Religion issues for Law Academics Subject: Speech and conduct Setting aside all the other factors for now, I hope we could agree that viewing this sort of picketing as conduct is the wrong way for courts to go. The picketing is offensive precisely because of the message it communicates. The noncommunicative components (the presence of people, the fact that they occupy space on the sidewalk, the fact that they carry signs on sticks) are irrelevant here (unless the picketing somehow blocked the driveway into the cemetery or some such, which I don't believe it did). Treating this speech as conduct works as poorly, I think, as Justice Blackmun's view in Cohen v. California that Cohen's absurd and immature antic ... was mainly conduct and little speech. Whatever the bottom line, it seems to me that courts should confront the true nature of what's going on here, and what's going on here is speech that's offensive precisely because it's speech. Eugene Alan Brownstein writes: I think Eugene is right. This is, at its core, a content-based restriction on speech. The context, in my judgment, is primarily relevant to three questions: whether the penalty on speech can be justified because of the consequences of the speech, whether the context is such that we want to view this expression as something other than speech (some kind of conduct) or whether we view this as some kind of speech that is not protected by the first amendment. It is never been clear to me which of these reasons explains why certain kinds of expressive activities can be punished as harassment - but clearly it is permissible to punish harassment in certain circumstances. The tort of IIED raises a similar mystery. I'm not suggesting that there isn't an answer that justifies at least some applications of the cause of action. But I don't think courts have told us what that answer is yet. I would prefer that the situation in this case (and others like it) be resolved by statutory limits on disruptive speech on public property adjacent to places like cemeteries, funeral homes, hospitals etc.. The benefit of a statute is that it can designate the contexts which we consider totally inappropriate for extremely hurtful speech at specific times and places. IIED leaves that question up to the discretion of juries. ___ 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. ___ 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: IIED and vagueness
I agree that my vote for Hillary is not a great analogy, but I think this issue is more complicated than Eugene suggests in this and some of his prior posts. Rowan does not stand for the proposition that speech can be punished whenever the person being spoken to asks the speaker to stop contacting him. It involves the home and sexualy pandering speech. And it creates a mechanism for avoiding future communications, not punishment for continuing contact just because the the recipient asks not not be contacted again. Telephone harassment statutes apply outside the home (to places of business for example) and although I don't know of any cases, I would assume that they would apply to cell phones as well -- which would mean that they apply everywhere. And as Eugene recognizes, they apply to much more than speech with sexual content. Also, telephone harassment is clearly content based. If I call Eugene at 3:00 am to tell him his house is on fire, or a friend needs a ride home and is too intoxicated to drive or any of several other arguably reasonable messages, it isn't harassment. What makes telephone calls harassment is precisely the offensiveness of their message in the context in which it is delivered (e.g. the more neutral or reasonable the message, the greater the repetition before it would be held to be harassment and vice versa.) Nor do I think a speaker's irrational link between his message and the audience being addressed (and the identity of the person being buried) resolves the problem of these protests. Anyone can decide irrationally that another person's suffering or misfortune reflects G-d's just punishment for the wrongs of their country, their religious community, their ethnic group, people who work in the same vocation, etc. If that's all it takes to justify disrupting funerals or tormenting patients in hospitals, if that is enough to establish a connection between speaker and victim, then we are making eveyone fair game for malicious tormentors. As Mark suggests, the speech here is not persuasive speech intended to inform or change the behavior of the mourners (as is true with labor picketing and abortion protests). The mourners are conscripted against their consent to serve as a backdrop for the display of the protestors' vile message. I also do not think that harassment is limited to private circumstances. If that were true, nothing protestors might do to patients trying to enter a medical clinic could ever constitute harassment. Publicly humiliating a person, following them in public to express your contempt for their rleigious beliefs, job, political positions, decision to have an abortion etc. can constitute harassment. It may be easier to establish harassment if it is directed at a person's home, but that does not suggest that it can never occur in a public venue. More to say, but classes to teach. Alan Brownstein From: [EMAIL PROTECTED] on behalf of Volokh, Eugene Sent: Thu 11/1/2007 9:34 PM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness It seems to me that this would make matter of public concern even mushier and viewpoint-based than it already is (or perhaps it would just illustrate the mushiness and potential for viewpoint discrimination). As best I can tell, the protesters are arguing that the nation has sinned by allowing homosexuality, or allowing gays in the military, or what have you, and the death of soldiers is God's righteous judgment on the country. That's their viewpoint, vile and illogical as it is. I take it we'd agree that a demonstration outside a military funeral saying God bless American soldiers is on a matter of a public concern. So, I assume, is a demonstration saying President Bush killed this soldier. So, I assume, is a demonstration saying Soldiers are murderers, and deserve to die (again, reprehensible as such a demonstration would be). The relationship between this matter and the funeral of the soldier, who after all had been exercising government power on behalf of our nation, seems hardly attenuated. Phelps et al.'s view may be irrational, but the connection between it and the funeral of the soldier is more attenuated or irrelevant only because we don't believe his logic. The 3 am calls strike me as a rather weak analogy. The problem there isn't that the relationship between the speech and me is attenuated, or that the message is irrelevant. If you called me at 3 am each morning to tell me that my publicly expressed views in some First Amendment debate are unsound -- assume I'm even a limited public figure as to that debate -- that would also be punishable, even though the speech is closely related to me and my public commentary. It might be punishable under a Rowan-like rationale, especially once I tell you stop bothering me, since restricting the speech to me doesn't at all interfere with your conveying the
Re: Speech and conduct
I assumed it's Intentional Infliction of Emotional Distress. I would assume the damages will be dramatically reduced, but the point's been made. As with OJ, the defendants haven't anything like the assets needed to satisfy even the actual damages part of the award. Susan Jean Dudley wrote: It occurs to me that all of this could have been avoided if the father of the deceased soldier, in a fit of grief-driven rage, had taken Mr. Phelp's (or possibly Mr. Phelp's daughter's) life and then claimed temporary insanity. But then I might have been tempted to show up at the funeral with a sign that says God hates homobigots.Would the Westboro Baptist Church have the right to sue me for damages? Frankly, I suspect that this decision is going to be overturned, or at the very least, the amount will be lowered dramatically. All I can say it's a damn shame there's no law against malicious bad manners in this country. Jean Dudley You can't get blood from a turnip. P. S. Would someone kindly clue me in on what IIED stands for, please? ___ 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. ___ 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: IIED and vagueness
Maybe the Code Pink demonstrators were further away than the Phelps group (who I think were 1000 feet from the grave site.) On the other hand, I assume that they were seen by family members and soldiers because we know that family members and soldiers were offended. Besides, it is easy to imagine that sharply worded and potentially offensive protests aimed at sympathetic people would be so close that these sympathetic people (e.g., mourners or wounded veterans) could not avoid it. What principle separates what is actionable from what is not while respecting first amendment values? Is it mere proximity? And, if it is, doesn't that have to be defined beforehand rather than resolved by a jury after the fact? The idea that this is targeted at individuals in a way that other protests are not is attractive but ultimately unsatisfying. Phelps is using families of deceased soldiers as props. He's not directing the protest at them personally. While you could argue that the fact that there are not other funerals going on makes it more likely that the attendees at the targeted funeral will be personally offended, I am not sure that this distinguishes abortion protests or labor picketing. The protesters may have a wider audience in mind, but the folks on the scene are not going to be terribly comforted by that. Part of the struggle here seems to be a sense that Phelps is sui generis. He literally has no friends anywhere. People on the religious right - even those who oppose same sex marriage and other laws seen as beneficial to gays and lesbians - can't stand him and that revulsion seems to go beyond simple considerations of political strategy. But does that undercut or underscore the need for first amendment protection? There is also a sense - particularly if you have ever seen these idiots (and, as I mentioned, they picketed my church once and I had to stand outside and direct people around them) that this isn't about politics but reflects a certain psychopathology. They are scary not simply because what they say is disgusting but because there is a Night of the Living Dead quality about them. But what legal principle could distinguish that? Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Mark Tushnet Sent: Friday, November 02, 2007 9:26 AM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness If the actual spatial relation between the location of the activity and those who are offended by it matters, it might be helpful for people to look at a map of Walter Reed Hospital, where the Code Pink demonstratins occurred, and compare the location to that in the funeral case. (The Code Pink demonstratinos occurred, as I recall, at the Georgia Avenue entrance to the Walter Reed grounds, and if so, they occurred at a location rather far removed from any building in which resturned soldiers stayed as a regular matter; the entrance is a bit closer to some outbuildings on the grounds, the functions of which I am ignorant.) Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Areeda 223 Cambridge, MA 02138 ph: 617-496-4451 (office); 202-374-9571 (mobile) From: [EMAIL PROTECTED] on behalf of Esenberg, Richard Sent: Fri 11/2/2007 9:20 AM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness As others have suggested, I think it goes like this. It seems quite possible to suppose that military families will be offended by demonstrators, either, as with Code Pink, outside a military hospital (or, say at a military funeral), who suggest that their loved ones were wounded or killed in vain. Heck, we don't even have to speculate because news reports about those demonstrations reflected that families and servicemen were mightily offended. If you want to say that there ought to be some rule that requires some level of nastiness that may not have been present at the Code Pink demonstrations, it's not hard to imagine (there are ample real world examples) that the demonstrators referred to soldiers as baby killers or to those who sent them overseas as war criminal. Incidentally, I would be interested in references to studies showing that violence and insult are not evenly distributed across the political spectrum. Rick Esenberg Marquette University School of Law From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Newsom Michael [EMAIL PROTECTED] Sent: Thursday, November 01, 2007 5:58 PM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness Could you be a bit more specific about the factual context of the Code Pink demonstrations? How is it analogous to Westboro's conduct? -Original
RE: IIED and vagueness
As others have suggested, I think it goes like this. It seems quite possible to suppose that military families will be offended by demonstrators, either, as with Code Pink, outside a military hospital (or, say at a military funeral), who suggest that their loved ones were wounded or killed in vain. Heck, we don't even have to speculate because news reports about those demonstrations reflected that families and servicemen were mightily offended. If you want to say that there ought to be some rule that requires some level of nastiness that may not have been present at the Code Pink demonstrations, it's not hard to imagine (there are ample real world examples) that the demonstrators referred to soldiers as baby killers or to those who sent them overseas as war criminal. Incidentally, I would be interested in references to studies showing that violence and insult are not evenly distributed across the political spectrum. Rick Esenberg Marquette University School of Law From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Newsom Michael [EMAIL PROTECTED] Sent: Thursday, November 01, 2007 5:58 PM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness Could you be a bit more specific about the factual context of the Code Pink demonstrations? How is it analogous to Westboro's conduct? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Thursday, November 01, 2007 12:48 PM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness Well, it certainly seems outrageous to me but I suspect that other reasonable people might regard the Code Pink demonstrations outside the Walter Reed Army Medical Center as, if not equally outrageous, at least comparable in their tendency to upset those who are presumably in a place in which there is some expectation of privacy and repose. (Don't we regard hospitals, like funerals, as places in which a certain decorum can be expected?) A standard that would potentially restrict such protests seems problematic and, again, it seems even more troubling to make it, as seems to have been done here, a jury question. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Thursday, November 01, 2007 11:17 AM To: Law Religion issues for Law Academics Subject: Re: IIED and vagueness What makes it outrageous is not the content per se, but the content in the context. And doesn't the old workhorse, our erstwhile objective standard of outrageous to a reasonable person, save it from unconstitutional vagueness? Steve On 11/1/07, Volokh, Eugene [EMAIL PROTECTED] wrote: Isn't a restriction on speech that is outrageous, and inflicts severe emotional distress, where the speaker knows there's a high probability that severe emotional distress will be inflicted unconstitutionally vague, suffering from all three of the Grayned problems (risk of viewpoint discrimination in enforcement, difficulty of telling when one is complying with the law, and resulting deterrent effect)? 'Outrageousness' in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression. (I also think it's unconstitutionally even setting aside the vagueness, but as in many instances the vagueness is such an important problem that it makes it hard to do the rest of the constitutional analysis, since it's so hard to tell just what speech the law will restrict, even if limited to cases where plaintiffs are private figures.) Eugene -- Prof. Steven Jamar Howard University School of Law ___ 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. ___ 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
Re: IIED and vagueness
On Nov 2, 2007, at Friday,November 2, 2007,7:14 AM, Scarberry, Mark wrote: I don't know that it's possible to discuss whether fighting words are involved without discussing outrageousness. It is largely the outrage caused by personally targeted speech that potentially makes it fighting words. Let me say, though, that speech targeting a dead soldier's family during a funeral is particularly likely to stir up the very strong violence-inducing emotions that are associated with fighting words. To the extent that a balancing is involved, of the likelihood of the stirring up of such strong emotions versus the speaker's need to engage in targeted speech at that time and place, I'd suggest that labor picketing and abortion protests both are aimed at those who, if persuaded, could act directly or relatively directly on the message to change things in the world. Abortion clinic patients (or would-be patients) and workers could decide against having, or participating in the providing of, abortions. Employers might decide to give the workers the contract they want, and customers, by staying away from the business that is being picketed, may in a relatively direct way affect the decision of the business. By contrast, the families of dead soldiers have no direct say in the military's policy on gays and lesbians. They have even less ability indirectly to affect such policies than they would to affect whether we continue our involvement in Iraq -- on that latter issue they might have an influential voice (though that still would be much more indirect than the abortion clinic or labor picketing examples). Mark Scarberry Pepperdine Something that has not been brought up in this discussion is the factor of the nature of grieving in our culture. As a society, we tend to subdue our public grieving, making funerals solemn affairs. Yes, there are exceptions to this tendancy; the famous New Orleans tradition of jazz bands at funeral processions is one. It seems to me that this is part and parcel (if oddly reversed) to the clause pursuit of happiness. Grievers have the right to conduct their rituals of mourning as they see fit, without disruption from uninvited parties. What laws provide assurance of this? In Rhode Island, it is illegal to interrupt a funeral procession on the streets, to cut across the line of cars in a funeral procession. Conversely, there are laws regulating the procession, what roads can be utilized. These laws are in place to protect the dignity and sanctity of the funeral rite. In contrast, Planned Parenthood clinics are places of business, and do not have the implied privacy of grieving. Laws have been put in place to limit the access of protesters; when a protester verbally assaults a client of the clinic, that is actionable as assault. While I'm not familiar with the legal implication of fighting words, it seems to me that given the fragile and volatile nature of grieving, specifically targeting a particular funeral with words intended to hurt could be construed as aggravated assault. The same should be true of when a protester shouts baby killer in the face of a woman who is going to the clinic to renew her prescription of HIV medications and contraceptives. Jean Dudley I still think Mr. Phelps is lucky he wasn't attacked by the grieving relatives of the soldier. There's a clear case of Yer honor, he needed killin' if I ever saw one. ___ 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: Speech and conduct
No, we don't all agree on a rigid speech-conduct distinction. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 2:43 AM To: Law Religion issues for Law Academics Subject: Speech and conduct Setting aside all the other factors for now, I hope we could agree that viewing this sort of picketing as conduct is the wrong way for courts to go. The picketing is offensive precisely because of the message it communicates. The noncommunicative components (the presence of people, the fact that they occupy space on the sidewalk, the fact that they carry signs on sticks) are irrelevant here (unless the picketing somehow blocked the driveway into the cemetery or some such, which I don't believe it did). Treating this speech as conduct works as poorly, I think, as Justice Blackmun's view in Cohen v. California that Cohen's absurd and immature antic ... was mainly conduct and little speech. Whatever the bottom line, it seems to me that courts should confront the true nature of what's going on here, and what's going on here is speech that's offensive precisely because it's speech. Eugene Alan Brownstein writes: I think Eugene is right. This is, at its core, a content-based restriction on speech. The context, in my judgment, is primarily relevant to three questions: whether the penalty on speech can be justified because of the consequences of the speech, whether the context is such that we want to view this expression as something other than speech (some kind of conduct) or whether we view this as some kind of speech that is not protected by the first amendment. It is never been clear to me which of these reasons explains why certain kinds of expressive activities can be punished as harassment - but clearly it is permissible to punish harassment in certain circumstances. The tort of IIED raises a similar mystery. I'm not suggesting that there isn't an answer that justifies at least some applications of the cause of action. But I don't think courts have told us what that answer is yet. I would prefer that the situation in this case (and others like it) be resolved by statutory limits on disruptive speech on public property adjacent to places like cemeteries, funeral homes, hospitals etc.. The benefit of a statute is that it can designate the contexts which we consider totally inappropriate for extremely hurtful speech at specific times and places. IIED leaves that question up to the discretion of juries. ___ 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. ___ 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: IIED and vagueness
1. Much as Michael and I disagree, at least our disagreement is *not*, I think, about whether the speech touches on a matter of public concern. My post, to which Michael responds, focuses on that question, and challenges Alan's claim that this speech can be dismissed as not on a matter of public concern. I pointed to Phelps' logic (such as it is) because it was relevant to the public concern question -- Alan's claim that the speech has at most an attenuated connection to the fallen soldier, or is irrelevan[t] or largely unrelated rests on an implicit conclusion that Phelps' logic is mistaken, and that is a conclusion that I think courts evaluating the First Amendment claim ought not draw. 2. Michael seems to be calling for a new First Amendment exception here, but I'm not quite sure what it is. Is it for speech that clearly is meant to insult, at least in the context of a funeral (to be precise, outside the funeral)? Is it just for speech that might offend ..., insult ..., or harass [mourners] in the context of a funeral? Is it for any speech that is obscene (in what sense?) targeted (in what sense?) insult-as-violence (in what sense?)? Is it only for such speech in the context of a funeral? I'd feel more comfortable with various proposed First Amendment exceptions if I had a better sense of just what was being proposed. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, November 02, 2007 11:37 AM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness 1.The Phelps group is doing more than just arguing a point of view regarding sin and homosexuality. 2.There is a difference between saying God bless American soldiers and Bush killed this soldier. The second clearly is meant to insult. The relevant question is whether, in the context of a funeral, the mourners have to put up with stuff that might offend them, insult them, or harass them at a time of great grief and sorrow. 3.The relevant question ought to be not whether we believe Phelps' logic, but whether the Constitution forbids protecting people at a time of great sorrow and grief from obscene, targeted insult-as-violence. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 12:35 AM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness It seems to me that this would make matter of public concern even mushier and viewpoint-based than it already is (or perhaps it would just illustrate the mushiness and potential for viewpoint discrimination). As best I can tell, the protesters are arguing that the nation has sinned by allowing homosexuality, or allowing gays in the military, or what have you, and the death of soldiers is God's righteous judgment on the country. That's their viewpoint, vile and illogical as it is. I take it we'd agree that a demonstration outside a military funeral saying God bless American soldiers is on a matter of a public concern. So, I assume, is a demonstration saying President Bush killed this soldier. So, I assume, is a demonstration saying Soldiers are murderers, and deserve to die (again, reprehensible as such a demonstration would be). The relationship between this matter and the funeral of the soldier, who after all had been exercising government power on behalf of our nation, seems hardly attenuated. Phelps et al.'s view may be irrational, but the connection between it and the funeral of the soldier is more attenuated or irrelevant only because we don't believe his logic. The 3 am calls strike me as a rather weak analogy. The problem there isn't that the relationship between the speech and me is attenuated, or that the message is irrelevant. If you called me at 3 am each morning to tell me that my publicly expressed views in some First Amendment debate are unsound -- assume I'm even a limited public figure as to that debate -- that would also be punishable, even though the speech is closely related to me and my public commentary. It might be punishable under a Rowan-like rationale, especially once I tell you stop bothering me, since restricting the speech to me doesn't at all interfere with your conveying the message to others. It might be punishable under some rule that bars repeated unsolicited phone calls during certain hours. But the rationale here would be genuinely unrelated to any message that I might be conveying, to its supposed irrelevance to my participation in a matter of public concern, or the tendency of the message (even coupled with the time, place, and manner in which it's delivered) to offend me because of what it says. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL
Phelps, IIED, offensiveness, and precedent
RE: IIED and vaguenessI've been following this issue with great interest as a conservative evangelical who considers the Phelps gang (I refuse to call them a church) truly evil and indefensible and who (and I realize this is probably not Christ-like love) likes to contemplate Mr. Phelps ultimate appearance before the highest Judge of all. A couple of different questions came to mind as I've been reading the discussion, though. First, a number of people have characterized the protests as offensive, and it's true, they are. However, it seems to me that the fact that they are offensive is not the real issue. I've seen protestors outside Promise Keepers events that I have attended which I found offensive. I've also seen protestors that oppose abortion (which I do, too) that have protested in ways which I thought were offensive. I'm not familiar with the Code Pink protests, but the description of them here sounds like something I would find offensive. There is a difference, though, between that which offends and that which causes pain. If Phelps' band of idiots wants to demonstrate in front of a recruiting center, that's one thing. But when they picket a funeral and intrude on the family's time to bid farewell to their loved ones, that is designed to cause harm and inflict pain on the grieving. That's where the idea of a claim based on IIED has a lot of appeal to me. Isn't it possible to make the legal distinction between offensive and painful, or does that merely invite somebody to make the argument (a baseless one, to my mind) that simply being offended is painful? The other question that comes to mind regards the potential precedent being set here. In my 17 years working at a major university, I saw the assertion made on many occasions that anybody who says that sexual intimacy between two member of the same sex is wrong is both offensive and guilty of hate speech. If this verdict stands (and I do hope there is a way for it to not only stand but be etched in stone), how can it be done without opening a Pandora's box for a lawsuit against any minister who preaches a sermon in which he states that sex outside of a heterosexual marriage is sin, on the grounds that it was deemed offensive and unprotected hate speech? And if so, wouldn't that set a dangerous precedent (i.e., if what Phelps said was offensive and therefore actionable, why shouldn't what Pastor X says be actionable if somebody finds it offensive)? For example, if a practicing homosexual could file a hate speech suit against a minister who preaches that homosexual behavior is sin, what is to stop the practicing adulterer from filing suit using the same rationale against a minister who preaches against adultery? Brad Pardee___ 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: IIED and vagueness
Could you please provide a full and complete factual description of the Code Pink conduct? I need to understand how it is analogous, in concrete, factual terms, with the behavior of the Phelps group. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Friday, November 02, 2007 9:20 AM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness As others have suggested, I think it goes like this. It seems quite possible to suppose that military families will be offended by demonstrators, either, as with Code Pink, outside a military hospital (or, say at a military funeral), who suggest that their loved ones were wounded or killed in vain. Heck, we don't even have to speculate because news reports about those demonstrations reflected that families and servicemen were mightily offended. If you want to say that there ought to be some rule that requires some level of nastiness that may not have been present at the Code Pink demonstrations, it's not hard to imagine (there are ample real world examples) that the demonstrators referred to soldiers as baby killers or to those who sent them overseas as war criminal. Incidentally, I would be interested in references to studies showing that violence and insult are not evenly distributed across the political spectrum. Rick Esenberg Marquette University School of Law From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Newsom Michael [EMAIL PROTECTED] Sent: Thursday, November 01, 2007 5:58 PM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness Could you be a bit more specific about the factual context of the Code Pink demonstrations? How is it analogous to Westboro's conduct? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Thursday, November 01, 2007 12:48 PM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness Well, it certainly seems outrageous to me but I suspect that other reasonable people might regard the Code Pink demonstrations outside the Walter Reed Army Medical Center as, if not equally outrageous, at least comparable in their tendency to upset those who are presumably in a place in which there is some expectation of privacy and repose. (Don't we regard hospitals, like funerals, as places in which a certain decorum can be expected?) A standard that would potentially restrict such protests seems problematic and, again, it seems even more troubling to make it, as seems to have been done here, a jury question. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Thursday, November 01, 2007 11:17 AM To: Law Religion issues for Law Academics Subject: Re: IIED and vagueness What makes it outrageous is not the content per se, but the content in the context. And doesn't the old workhorse, our erstwhile objective standard of outrageous to a reasonable person, save it from unconstitutional vagueness? Steve On 11/1/07, Volokh, Eugene [EMAIL PROTECTED] wrote: Isn't a restriction on speech that is outrageous, and inflicts severe emotional distress, where the speaker knows there's a high probability that severe emotional distress will be inflicted unconstitutionally vague, suffering from all three of the Grayned problems (risk of viewpoint discrimination in enforcement, difficulty of telling when one is complying with the law, and resulting deterrent effect)? 'Outrageousness' in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression. (I also think it's unconstitutionally even setting aside the vagueness, but as in many instances the vagueness is such an important problem that it makes it hard to do the rest of the constitutional analysis, since it's so hard to tell just what speech the law will restrict, even if limited to cases where plaintiffs are private figures.) Eugene -- Prof. Steven Jamar Howard University School of Law ___ 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. ___ To
RE: Is First Amendment viewpoint-discriminatory against antigay speech
David has it right: a compelling governmental interest in protecting a discrete and insular minority -- one that is routinely victimized. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of David Cruz Sent: Thursday, November 01, 2007 8:12 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigay speech I too found that comment a little cryptic. If Michael meant to be doctrinal rather than just attitudinally predictive, my guess would be that he didn't mean that a different First Amendment rule would apply, but that those decisions might somehow justify a conclusion that there's a compelling governmental interest present. But it wasn't at all clear to me, so perhaps Michael might clarify. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, November 01, 2007 4:43 PM To: Law Religion issues for Law Academics Subject: Is First Amendment viewpoint-discriminatory against antigay speech I'm puzzled -- do Romer and Lawrence really justify not just protection of gays against governmental discrimination, but a different First Amendment rule for antigay speech than for pro-gay-rights speech or a wide range of other speech? Eugene Michael Newsom writes: That said, I have no idea of what the Court would do with this case, but my guess is that the Court would overturn the jury verdict 5-4, although Kennedy, on the strength of Romer and Lawrence, might vote with the moderates and the case would come out the other way, 5-4 to uphold the jury verdict (although the punitive damages might be reduced, the Court likely to send a signal, I think, in the Valdez case that it is prepared to rein in punitive damages). ___ 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. ___ 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. ___ 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: Is First Amendment viewpoint-discriminatory against antigay speech
Wow, that really is a remarkable First Amendment position: The government is constitutionally permitted to ban antigay speech (all antigay speech? some antigay speech? only antigay speech at funerals?), but I take it constitutionally forbidden from banning progay speech, anticapitalist speech, anti-Christian speech, and so on. Might as well chuck all the Court's pretensions to viewpoint neutrality out the window if that sort of exception is accepted (though fortunately I can't count a single vote for it on today's Court). Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, November 02, 2007 11:29 AM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigay speech David has it right: a compelling governmental interest in protecting a discrete and insular minority -- one that is routinely victimized. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of David Cruz Sent: Thursday, November 01, 2007 8:12 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigay speech I too found that comment a little cryptic. If Michael meant to be doctrinal rather than just attitudinally predictive, my guess would be that he didn't mean that a different First Amendment rule would apply, but that those decisions might somehow justify a conclusion that there's a compelling governmental interest present. But it wasn't at all clear to me, so perhaps Michael might clarify. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, November 01, 2007 4:43 PM To: Law Religion issues for Law Academics Subject: Is First Amendment viewpoint-discriminatory against antigay speech I'm puzzled -- do Romer and Lawrence really justify not just protection of gays against governmental discrimination, but a different First Amendment rule for antigay speech than for pro-gay-rights speech or a wide range of other speech? Eugene Michael Newsom writes: That said, I have no idea of what the Court would do with this case, but my guess is that the Court would overturn the jury verdict 5-4, although Kennedy, on the strength of Romer and Lawrence, might vote with the moderates and the case would come out the other way, 5-4 to uphold the jury verdict (although the punitive damages might be reduced, the Court likely to send a signal, I think, in the Valdez case that it is prepared to rein in punitive damages). ___ 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. ___ 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. ___ 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. ___ 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: IIED and vagueness
1. The Phelps group is doing more than just arguing a point of view regarding sin and homosexuality. 2. There is a difference between saying God bless American soldiers and Bush killed this soldier. The second clearly is meant to insult. The relevant question is whether, in the context of a funeral, the mourners have to put up with stuff that might offend them, insult them, or harass them at a time of great grief and sorrow. 3. The relevant question ought to be not whether we believe Phelps' logic, but whether the Constitution forbids protecting people at a time of great sorrow and grief from obscene, targeted insult-as-violence. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 12:35 AM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness It seems to me that this would make matter of public concern even mushier and viewpoint-based than it already is (or perhaps it would just illustrate the mushiness and potential for viewpoint discrimination). As best I can tell, the protesters are arguing that the nation has sinned by allowing homosexuality, or allowing gays in the military, or what have you, and the death of soldiers is God's righteous judgment on the country. That's their viewpoint, vile and illogical as it is. I take it we'd agree that a demonstration outside a military funeral saying God bless American soldiers is on a matter of a public concern. So, I assume, is a demonstration saying President Bush killed this soldier. So, I assume, is a demonstration saying Soldiers are murderers, and deserve to die (again, reprehensible as such a demonstration would be). The relationship between this matter and the funeral of the soldier, who after all had been exercising government power on behalf of our nation, seems hardly attenuated. Phelps et al.'s view may be irrational, but the connection between it and the funeral of the soldier is more attenuated or irrelevant only because we don't believe his logic. The 3 am calls strike me as a rather weak analogy. The problem there isn't that the relationship between the speech and me is attenuated, or that the message is irrelevant. If you called me at 3 am each morning to tell me that my publicly expressed views in some First Amendment debate are unsound -- assume I'm even a limited public figure as to that debate -- that would also be punishable, even though the speech is closely related to me and my public commentary. It might be punishable under a Rowan-like rationale, especially once I tell you stop bothering me, since restricting the speech to me doesn't at all interfere with your conveying the message to others. It might be punishable under some rule that bars repeated unsolicited phone calls during certain hours. But the rationale here would be genuinely unrelated to any message that I might be conveying, to its supposed irrelevance to my participation in a matter of public concern, or the tendency of the message (even coupled with the time, place, and manner in which it's delivered) to offend me because of what it says. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Thursday, November 01, 2007 2:58 PM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness I understand that there is a clear sense in which the protestors comments involve speech on a matter of public concern. But the relationship between that matter of public concern and the family whose son has died and is being buried is pretty attenuated. If the protestors just said John Doe should rot in Hell, that would not be a matter of public concern. Does adding Because we think the U.S. is immoral, John Doe should rot in Hell change the statement enough to make a difference. (By analogy, if I call Eugene up at 3:00 am each morning to tell him to vote for Hillary Clinton, should it be harder for courts to hold me liable for harassment because my statements are a matter of public concern -- indeed they are pure political speech.) I guess what I am asking is whether the impropriety and irrelevance of the circumstance should influence our conclusion as to whether what is being said is a matter of public concern. If these protestors show up at the funeral of any citizen with similar signs and argue that it is good whenever any American dies because our country does not hate gay people enough, should that alter the analysis? Isn't there a sense that these people are just using the emotional pain they cause and the anger generated by their outrageous activities to gain attention for their message? Should speakers be allowed to use the distress caused to patients at hospitals or mourners at funerals as a way of amplifying their largely unrelated speech on matters of public
RE: Phelps, IIED, offensiveness, and precedent
The Phelps case is easy because of the unique facts. I don't think that the Code Pink protests come close to matching the Phelps' protests. Several writers in this thread have made the point that there is something special about funerals, and ceremony, and ritual, and grief, and that the law ought to be able to accommodate that special quality of funerals. It is not enough to suppose that first amendment principles (if that means free speech only) trump everything else because then we have privileged every imaginable and horrible type of bullying, harassment or worse. Of course, it is easy enough to say that at some point speech becomes action and therefore subject to regulation and prohibition of a sort not typically associated with speech. But a more straightforward approach would recognize that some speech needs to be regulated, even prohibited. The only question that remains is where might one draw lines, a concern that is important, but hardly controlling. It is enough to focus on the social, cultural, and psychological reality of funerals. That really cannot be all that difficult to do, can it? Has not the law acquitted itself well if it does that? From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad Linda Sent: Friday, November 02, 2007 1:00 PM To: Law Religion issues for Law Academics Subject: Phelps, IIED, offensiveness, and precedent I've been following this issue with great interest as a conservative evangelical who considers the Phelps gang (I refuse to call them a church) truly evil and indefensible and who (and I realize this is probably not Christ-like love) likes to contemplate Mr. Phelps ultimate appearance before the highest Judge of all. A couple of different questions came to mind as I've been reading the discussion, though. First, a number of people have characterized the protests as offensive, and it's true, they are. However, it seems to me that the fact that they are offensive is not the real issue. I've seen protestors outside Promise Keepers events that I have attended which I found offensive. I've also seen protestors that oppose abortion (which I do, too) that have protested in ways which I thought were offensive. I'm not familiar with the Code Pink protests, but the description of them here sounds like something I would find offensive. There is a difference, though, between that which offends and that which causes pain. If Phelps' band of idiots wants to demonstrate in front of a recruiting center, that's one thing. But when they picket a funeral and intrude on the family's time to bid farewell to their loved ones, that is designed to cause harm and inflict pain on the grieving. That's where the idea of a claim based on IIED has a lot of appeal to me. Isn't it possible to make the legal distinction between offensive and painful, or does that merely invite somebody to make the argument (a baseless one, to my mind) that simply being offended is painful? The other question that comes to mind regards the potential precedent being set here. In my 17 years working at a major university, I saw the assertion made on many occasions that anybody who says that sexual intimacy between two member of the same sex is wrong is both offensive and guilty of hate speech. If this verdict stands (and I do hope there is a way for it to not only stand but be etched in stone), how can it be done without opening a Pandora's box for a lawsuit against any minister who preaches a sermon in which he states that sex outside of a heterosexual marriage is sin, on the grounds that it was deemed offensive and unprotected hate speech? And if so, wouldn't that set a dangerous precedent (i.e., if what Phelps said was offensive and therefore actionable, why shouldn't what Pastor X says be actionable if somebody finds it offensive)? For example, if a practicing homosexual could file a hate speech suit against a minister who preaches that homosexual behavior is sin, what is to stop the practicing adulterer from filing suit using the same rationale against a minister who preaches against adultery? Brad Pardee ___ 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: Is First Amendment viewpoint-discriminatory against antigay speech
No, not remarkable. Viewpoint neutrality is a chimera and an illusion, in my opinion. I do agree that the Court is not likely to agree, but that does not mean that the Court is right, but merely that the Court has spoken -- wrongheadedly. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 2:56 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigay speech Wow, that really is a remarkable First Amendment position: The government is constitutionally permitted to ban antigay speech (all antigay speech? some antigay speech? only antigay speech at funerals?), but I take it constitutionally forbidden from banning progay speech, anticapitalist speech, anti-Christian speech, and so on. Might as well chuck all the Court's pretensions to viewpoint neutrality out the window if that sort of exception is accepted (though fortunately I can't count a single vote for it on today's Court). Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, November 02, 2007 11:29 AM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigay speech David has it right: a compelling governmental interest in protecting a discrete and insular minority -- one that is routinely victimized. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of David Cruz Sent: Thursday, November 01, 2007 8:12 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigay speech I too found that comment a little cryptic. If Michael meant to be doctrinal rather than just attitudinally predictive, my guess would be that he didn't mean that a different First Amendment rule would apply, but that those decisions might somehow justify a conclusion that there's a compelling governmental interest present. But it wasn't at all clear to me, so perhaps Michael might clarify. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, November 01, 2007 4:43 PM To: Law Religion issues for Law Academics Subject: Is First Amendment viewpoint-discriminatory against antigay speech I'm puzzled -- do Romer and Lawrence really justify not just protection of gays against governmental discrimination, but a different First Amendment rule for antigay speech than for pro-gay-rights speech or a wide range of other speech? Eugene Michael Newsom writes: That said, I have no idea of what the Court would do with this case, but my guess is that the Court would overturn the jury verdict 5-4, although Kennedy, on the strength of Romer and Lawrence, might vote with the moderates and the case would come out the other way, 5-4 to uphold the jury verdict (although the punitive damages might be reduced, the Court likely to send a signal, I think, in the Valdez case that it is prepared to rein in punitive damages). ___ 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. ___ 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. ___ 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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change
RE: IIED and vagueness
My understanding is that Code Pink demonstrators deployed mock caskets and held up signs saying that soldiers had died or been maimed for a lie along with other attacks on the war in Iraq, describing it, for example, as a war for oil. Here is one description: http://www.cnsnews.com/ViewSpecialReports.asp?Page=%5CSpecialReports%5Carchive%5C200508%5CSPE20050825a.html. Is that as bad as what Phelps did? Probably not, but what constitutional test ought to be proposed to determine what goes over the outer boundary of civility? We certainly know that, even if the Code Pink demonstrations weren't as outrageous as Phelps' behavior, it was outrageous enough to deeply offend and wound those at whom it was directed. I am puzzled by the notion that the constitutional test should turn on the nature of the group victimized. First, who was victimized in the Phelps case: gays and lesbians (who are not the ones who sued) or the families of a soldier who were told that God wanted their son or daughter to die? If it's the latter, is there a difference between telling them God wanted their loved one to die and telling them that their loved one's death (or injury) or the death or injury of one's fellow soldiers was in vain? I suspect that they are likely to be as offended by the latter as by the former. Second, there is the old problem around which groups are sufficiently discrete and insular to deserve special protection. That choice is necessarily ideological. Would it include, for example, rural working class whites and born again Christians? If the choice is ideological, then the first amendment is no longer a guarantee of liberty, but a weapon for political warfare. I appreciate that some folks believe that it cannot be otherwise, but I disagree. There is some force behind the notion that funerals are unique, although it's not clear that those things that make funerals unique wouldn't also apply to hospitals where soldiers are recuperating. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, November 02, 2007 1:53 PM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness Could you please provide a full and complete factual description of the Code Pink conduct? I need to understand how it is analogous, in concrete, factual terms, with the behavior of the Phelps group. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Friday, November 02, 2007 9:20 AM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness As others have suggested, I think it goes like this. It seems quite possible to suppose that military families will be offended by demonstrators, either, as with Code Pink, outside a military hospital (or, say at a military funeral), who suggest that their loved ones were wounded or killed in vain. Heck, we don't even have to speculate because news reports about those demonstrations reflected that families and servicemen were mightily offended. If you want to say that there ought to be some rule that requires some level of nastiness that may not have been present at the Code Pink demonstrations, it's not hard to imagine (there are ample real world examples) that the demonstrators referred to soldiers as baby killers or to those who sent them overseas as war criminal. Incidentally, I would be interested in references to studies showing that violence and insult are not evenly distributed across the political spectrum. Rick Esenberg Marquette University School of Law From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Newsom Michael [EMAIL PROTECTED] Sent: Thursday, November 01, 2007 5:58 PM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness Could you be a bit more specific about the factual context of the Code Pink demonstrations? How is it analogous to Westboro's conduct? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Thursday, November 01, 2007 12:48 PM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness Well, it certainly seems outrageous to me but I suspect that other reasonable people might regard the Code Pink demonstrations outside the Walter Reed Army Medical Center as, if not equally outrageous, at least comparable in their tendency to upset those who are presumably in a place in which there is some expectation of privacy and repose. (Don't we regard hospitals, like funerals, as places in which a certain decorum can be expected?) A standard that would potentially restrict such protests seems problematic and, again, it seems even more troubling to
RE: IIED and vagueness
Eugene's comments have really helped me to think about this issue. I think part of what makes this issue complicated for me (obviously I can't speak for Eugene) is that the protestors are really engaged in two communicative acts. 1. There is the message to the mourners. The core of that message is We are glad your son is dead. And G-d punished your son because of America's wrongdoing regarding Gay rights. Here, the language about Gay rights, I think, is largely irrelevant to what makes the protestors speech so horrible. The protestors could be talking about any of a laundry list of America's perceived failings, all of which had virtually nothing to do the dead soldier's mission in Iraq. The core message is We are glad your son is dead and G-d punished your son because of America's wrongdoing. Whatever those messages to the mourners expresses about a matter of public concern is so limited and so overshadowed by the personal invective that is being communicated that I assign it little weight. Maybe this would be a different case if there was some connection between the dead soldier's conduct or the mourners' conduct and the protestors message. But these isn't any such connection. Or to put it another way, whatever reasons there are for distinguishing between matters of public concerns and matters that are not of public concern are not furthered by protecting the communications to the mourners in this case. 2. There is also the message to the general public. Here the message about G-d punishing America because of its perceived support of Gay rights seems more of a matter of public concern. It is related to the country's public culture and law. The problem here, as Rick Esenberg suggested, is that the mourners are being used as props to help the protestors communicate their message. It is the conscription of the mourners and their agony into the protestors' message that is problematic. By analogy, I would concede that racists can express hateful messages about the members of a racial minority and hold a racial group up to public ridicule and contempt under the protection of the First Amendment. I understand the argument that such speech can be described as a matter of public concern. But I am not convinced that this means that racists can publicly harass a black person and publicly humiliate him or her to express their message. I'm not at all sure that they should be allowed to defend their conduct and distinguish their acts from more private speech and targeting (which is more generally recognized to be subject to sanction) by arguing that they are engaging in public harassment of individuals to help publicize their racist message -- which is a matter of public concern. Alan Brownstein -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 11:52 AM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness 1. Much as Michael and I disagree, at least our disagreement is *not*, I think, about whether the speech touches on a matter of public concern. My post, to which Michael responds, focuses on that question, and challenges Alan's claim that this speech can be dismissed as not on a matter of public concern. I pointed to Phelps' logic (such as it is) because it was relevant to the public concern question -- Alan's claim that the speech has at most an attenuated connection to the fallen soldier, or is irrelevan[t] or largely unrelated rests on an implicit conclusion that Phelps' logic is mistaken, and that is a conclusion that I think courts evaluating the First Amendment claim ought not draw. 2. Michael seems to be calling for a new First Amendment exception here, but I'm not quite sure what it is. Is it for speech that clearly is meant to insult, at least in the context of a funeral (to be precise, outside the funeral)? Is it just for speech that might offend ..., insult ..., or harass [mourners] in the context of a funeral? Is it for any speech that is obscene (in what sense?) targeted (in what sense?) insult-as-violence (in what sense?)? Is it only for such speech in the context of a funeral? I'd feel more comfortable with various proposed First Amendment exceptions if I had a better sense of just what was being proposed. 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: Anti-gay church verdict
That's easy for YOU to say. At 11:33 AM 11/1/07 -0500, you wrote: Bsog Joel L. Sogol 811 21st Ave. Tuscaloosa, ALabama 35401 ph (205) 345-0966 fx (205) 345-0971 email: [EMAIL PROTECTED] Ben Franklin observed that truth wins a fair fight - which is why we have evidence rules in U.S. courts. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Thursday, November 01, 2007 11:22 AM To: Law Religion issues for Law Academics Subject: Re: Anti-gay church verdict Could we not ban ALL demonstrations at funerals of private people? That would be content neutral. And we can ban the greater, can we not also ban the lesser? (And you know I hate referencing a Scalian argument!) Steve On 11/1/07, Conkle, Daniel O. [EMAIL PROTECTED] wrote: Isn't this analogous to Frisby, approving a ban on targeted picketing as content-neutral even though the privacy interest being protected in Frisby was, in reality, linked in substantial part to protecting homeowners' from being offended by the content of picketers' speech? In Frisby, the Court cited Kovacs (yes, a regulation of loudspeaker noise indeed is content-neutral) but also Pacifica, which plainly turned on content. See also Madsen and the other, more recent anti-abortion picketing cases, also finding prohibitions content-neutral when, in reality, a good part of the harm being averted by the laws or injunctions in reality depended on content. So, yes, the interest and harm in this case in reality are linked in substantial part to content, albeit content in the particularly offensive context of a funeral, but I can well imagine the reasoning of Frisby and the anti-abortion picketing cases being extended to support a content-neutral conclusion. Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** -- Prof. Steven Jamar Howard University School of Law ___ 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. ___ 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. ___ 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.
Of Phelps and Persecution
The judgment against Westboro and Phelps was $11 million. Someone said that the jury picked this number to make sure that Westboro loses all its assets. I don't know whether that's true, but it wouldn't surprise me, and I would expect a sensible plaintiff's attorney to have suggested as much in their arguments about the need for punitive damages here. The Hare Krishnas and Unification Churches faced similarly devastating verdicts because of IIED and invasion-of-privacy claims brought by private individuals who wanted their destruction, and that reflected how neutral and generally applicable tort rules could combine with jury discretion to be devastingly non-neutral. If I'm remembering Doug Laycock's Remnants piece right, all of Krishna's land holdings in the United States were put into receivership to secure just one of the judgments. We've only talked about the Maryland case. But Phelps is having to defend a number of lawsuits in a number of places. Sometimes these cases are obvious and deliberate abuses. Phelps' daughter is being prosecuted in Nebraska for flag mutilation, negligent child abuse, contributing to the deliquency of a minor, and disturbing the peace * all apparently for having her 10-year-old son stand on a flag during a protest. The district attorney there said, when asked about the potential rights of the Westboro believers, they don't really deserve the protection of freedom of speech, freedom of religion. Some want to punish Phelps because he went over the line here. But most just want to punish Phelps, and either don't care about the line or will draw it post hoc to make sure Phelps' actions end up on the unprotected side. All this is to say that I am much less confident now than I was at the start of this thread that what is happening to Phelps is the product of neutral principles of law. Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) ___ 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: Is First Amendment viewpoint-discriminatory against antigay speech?
OK, let me present it from a different perspective: Many traditionalist Christians have argued that civil rights victories for the gay rights movement mean losses for traditionalist Christians -- in particular, loss of free speech and the right to spread their religious views. Many have responded that this isn't so, or is at least overstated: That of course Christians can keep their free speech rights and the rights to spread their religious views, and gays and lesbians can have the right to sexual autonomy, the right to marry free of government constraint, and so on. But I take it that Michael disagrees: His view is that Romer and Lawrence should indeed lead the Court to uphold restrictions on antigay speech, which I take it would include antigay religious teachings. Moreover, I take it that the assertedly compelling government interest in protecting gays is *much* more jeopardized by mainstream antigay teachings (even when they are comparatively politely framed), from groups such as traditionalist Protestants, Catholics, Muslims, and orthodox Jews, than by Phelps' gang of kooks (which if anything would lead to some extra sympathy for gay rights, by tying extremist antigay bigotry to extreme anti-Americanism). So under his rationale, the Court should uphold general bans on anti-gay-rights teachings, including religious teachings. If that's right, then weren't the traditionalist Christian views who complained about the gay rights movement, and in particular about the indirect consequences of its validation in cases such as Romer and Lawrence, quite prescient? If Michael's views are to prevail, then it really is a question of choosing whose rights we protect -- the sexual autonomy and equality of gays and lesbians, or the free speech and the religious speech rights of traditionalist Christians. When the first group wins, the second loses (again, if Michael's views are to be accepted). Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, November 02, 2007 12:41 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigay speech No, not remarkable. Viewpoint neutrality is a chimera and an illusion, in my opinion. I do agree that the Court is not likely to agree, but that does not mean that the Court is right, but merely that the Court has spoken -- wrongheadedly. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 2:56 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigay speech Wow, that really is a remarkable First Amendment position: The government is constitutionally permitted to ban antigay speech (all antigay speech? some antigay speech? only antigay speech at funerals?), but I take it constitutionally forbidden from banning progay speech, anticapitalist speech, anti-Christian speech, and so on. Might as well chuck all the Court's pretensions to viewpoint neutrality out the window if that sort of exception is accepted (though fortunately I can't count a single vote for it on today's Court). Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, November 02, 2007 11:29 AM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigay speech David has it right: a compelling governmental interest in protecting a discrete and insular minority -- one that is routinely victimized. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of David Cruz Sent: Thursday, November 01, 2007 8:12 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigay speech I too found that comment a little cryptic. If Michael meant to be doctrinal rather than just attitudinally predictive, my guess would be that he didn't mean that a different First Amendment rule would apply, but that those decisions might somehow justify a conclusion that there's a compelling governmental interest present. But it wasn't at all clear to me, so perhaps Michael might clarify. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, November 01, 2007 4:43 PM To: Law Religion issues for Law Academics Subject: Is First Amendment viewpoint-discriminatory against antigay speech I'm puzzled -- do Romer and Lawrence really justify not just
Two Big Victories for Prayer In Jesus' Name
Two major victories for public prayer in Jesus' name were just declared in the Indiana and Ohio legislatures, but three new battles rage in Pennsylvania, Florida and North Carolina where legislators are considering banning Jesus prayers. Please enjoy my WND commentary, pasted belowalso online at: http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=58464 In Jesus name, Chaplain Gordon James Klingenschmitt -- This is a WorldNetDaily printer-friendly version of the article which follows. To view this item online, visit http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=58464 Friday, November 2, 2007 - - 2 victories for Jesus prayers - Posted: November 2, 2007 1:00 a.m. Eastern By Gordon James Klingenschmitt - © 2007 Two major victories for public prayer in Jesus' name were just declared in the Indiana and Ohio legislatures, but three new battles rage in Pennsylvania, Florida and North Carolina where legislators are considering banning Jesus prayers. In Indiana, the ACLU lost another lawsuit, when the 7th Circuit Court of Appeals overturned a bad ruling by a liberal judge who had ordered praying to Jesus was illegal on the floor of the Indiana House. The appeals court restored liberty this week, ruling that easily offended bystanders have no legal standing to sue, since no taxpayer dollars were spent promoting prayer. Judge Roy Moore, who filed an amicus brief to defend the courageous former Republican Speaker Brian Bosma and current Democrat Speaker B. Patrick Bauer, said of the victory: Thankfully, the Court of Appeals in Hinrichs [v. Indiana Speaker Bosma] reversed the absurd prayer censorship order of the lower court, which means the Indiana House of Representatives does not have to tell its invited clergy that the name of Jesus cannot be uttered in their prayers. Undaunted, the ACLU vowed to sue Indiana again soon. In Ohio, Republican House Speaker Jon Husted reversed his temporary ban on Jesus prayers, overruling the easily offended Minority Leader Chris Redfern, who had walked out in protest when a pastor prayed in Jesus' name. When two WorldNetDaily commentaries by myself and Janet Folger exposed Refern as a whiner, Speaker Husted was besieged by phone calls from pastors and citizens who demanded liberty be restored. After hearing Ohio Christian Alliance director Chris Long, Speaker Husted found his backbone and restored liberty, saying: I will not allow for our prayers to be censored prayer is a time of reflection and guidance, a time which should not be governed by political advocacy or personal opinion. Perhaps he realized 85 to 94 percent of voters want to give chaplains freedom. Former Ohio ACLU legal director Raymond Vasvari admitted that government inviting a minister to speak and then vetting the prayer is akin to illegal prior restraint. (Apparently, that's why he's former legal director too Christian for ACLU?) Despite these victories, Pennsylvania legislators are considering abolishing prayer in Jesus' name under fear of lawsuits. This week, the anti-Jesus group Americans United (To Abolish the Church with State Sword?) intimidated four Keystone state senators, demanding they ban prayers to Jesus on the Senate floor. These four senators might cave in just to avoid offending AU's professional complainers. But I wonder if Pennsylvania voters will contact their senators like those courageous Ohioans? And I wonder if these Pennsylvania senators will find the nerve to win a lawsuit like the courageous bipartisan Indiana speakers did? The Alliance Defense Fund offers them pro-bono defense. I've written my personal letter and e-mailed and phoned these four senators. Now I'm forwarding this article to every Pennsylvania citizen (especially pastors) I can. Will everybody do the same? AU also threatened Florida commissioners in Osceola County to ban Jesus prayers, saying they hope things will be resolved without any legal action, but they aren't sure what they will do next. I pray Floridians will encourage these commissioners to defend free speech. In North Carolina, two town councils in Fayetteville and Cumberland County recently banned Jesus prayers. By selectively misquoting two contradictory rulings by the 4th Circuit Court of Appeals, the big-city ACLU lawyers apparently confused the small-town country lawyers into frightened submission. Yes, it's true the 4th Circuit prevented a legislature from requiring ALL prayers MUST end in Jesus' name (2004 Wynne v. Town of Great Falls). But they essentially reversed themselves in 2005, opening a big loophole (Simpson v. Chesterfield), ruling diverse prayers to the God of Abraham, of Moses,
RE: Speech and conduct
I appreciate Dan's point; but I think that if the mere presence of strangers is a factor here, it's a small factor indeed. If there were a half dozen people standing on the street corner near the funeral talking to each other, the attendees to the funeral might be very slightly put off, but very slightly. If there were people engaged in labor picketing against the cemetery's practices, they might think it's mildly disrespectful, but not remotely outrageous. If there were people standing with signs saying Our condolences for your and our nation's loss, the attendees would likely be pleased, unless they were a very private sort of people, in which case they might find this a little tacky or annoying. What makes the behavior allegedly outrageous infliction of severe emotional distress (or for that matter an actionable invasion of privacy) is precisely the speech. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Conkle, Daniel O. Sent: Friday, November 02, 2007 6:47 AM To: 'Law Religion issues for Law Academics' Subject: RE: Speech and conduct I'm largely (90%?) in agreement with Eugene, but I'd add a slight caveat. I think that some (small?) part of the offensiveness or invasion of privacy here is, indeed, the mere presence of strangers in close proximity to the funeral - an event that, as a matter of social custom, decency, and respect for the dead and their families, ordinarily is confined to those who are in some broad sense invited guests who wish to participate in or observe the ceremony. Compare Frisby on targeted picketing. If my house is the target of picketing, I think that some (small?) part of the offensiveness or invasion-of-privacy concern is that a stranger is persistently standing right in front of my house - even though he is on public property and is not legally trespassing. It bothers me simply that he is *there*; that he's not moving on. (I'd be concerned even if the person carried a blank picket sign or carried no sign at all and said nothing at all.) To this limited extent, in both Frisby and in the funeral context, the harm is grounded in part on an intangible privacy concern about the presence of strangers, which might be characterized as a concern about conduct and which is independent of any message. Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 2:43 AM To: Law Religion issues for Law Academics Subject: Speech and conduct Setting aside all the other factors for now, I hope we could agree that viewing this sort of picketing as conduct is the wrong way for courts to go. The picketing is offensive precisely because of the message it communicates. The noncommunicative components (the presence of people, the fact that they occupy space on the sidewalk, the fact that they carry signs on sticks) are irrelevant here (unless the picketing somehow blocked the driveway into the cemetery or some such, which I don't believe it did). Treating this speech as conduct works as poorly, I think, as Justice Blackmun's view in Cohen v. California that Cohen's absurd and immature antic ... was mainly conduct and little speech. Whatever the bottom line, it seems to me that courts should confront the true nature of what's going on here, and what's going on here is speech that's offensive precisely because it's speech. Eugene Alan Brownstein writes: I think Eugene is right. This is, at its core, a content-based restriction on speech. The context, in my judgment, is primarily relevant to three questions: whether the penalty on speech can be justified because of the consequences of the speech, whether the context is such that we want to view this expression as something other than speech (some kind of conduct) or whether we view this as some kind of speech that is not protected by the first amendment. It is never been clear to me which of these reasons explains why certain kinds of expressive activities can be punished as harassment - but clearly it is permissible to punish harassment in certain circumstances. The tort of IIED raises a similar mystery. I'm not suggesting that there isn't an answer that justifies at least some applications of the cause of action. But I don't think courts have told us what that answer is yet. I would prefer that the situation in this case (and others like it) be resolved by statutory limits on disruptive speech on public property adjacent to
RE: Speech and conduct
A content-based ban on speech isn't a conduct ban just because speech in other places, other times, other means is not banned or sanctioned. It's just a content-based restriction rather than a categorical content-based prohibition. And that it leaves open ample alternative channels is *not* enough to save it if it's content-based. See, e.g., Boos v. Barry; Carey v. Brown; and many more. Moreover, the speakers here are disrupting a funeral precisely because of what they say, as well as where they say it. IIED liability would surely not have been imposed here if the speakers carried signs saying This cemetery is unfair to labor, or Our condolences to you and to our nation. So it's a classic example of a content-based restriction, even if one limited by place; that's no more a permissible time, place, and manner restriction than is a ban on antiwar demonstrations in front of government buildings, or antigovernment parades (while antigovernment billboards are allowed), or profanity on jackets (if spoken profanity were permitted). Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Friday, November 02, 2007 4:30 AM To: Law Religion issues for Law Academics Subject: Re: Speech and conduct No it is not being regulated just because of the content of the speech. That speech in other places, other times, other means is not banned or sanctioned. People disrupting a funeral even with entirely different words would still be disrupting a funeral. The disruption can be prohibited -- the conduct can be regulated. This was disruptive. Of course it was more than disruptive and the tort required the physical and the aural and the emotional aspects. But it is still a mischaracterization to call it purely or merely speech content regulation. Or to treat it as if that is all that is going on. Our free speech jurisprudence is neither as consistent nor as rigid as Eugene would like -- and that seems to be the bottom line here -- I prefer more play in the joints here for regulating this sort of thing (and would like to find some way to regulate hate speech more than we do -- though that is even more problematic for reasons often enough discussed -- though I think we could fashion something there involving targeting individuals or groups in ways calculated to cause various sorts of harms, but that is still much tougher than this case). I don't see an appellate court pushing the boundaries of free speech in the direction Eugene wants in this case. Indeed, I hope this one gets appealed because I think we could see some further recognition that society can demand some level of civility even where speech is concerned. I would expect this to be treated ultimately as closer to time-place-manner standard (innumerable alternative means available) than a straight-up content based regulation.Indeed, if one wants to establish the principle of no content-based regulation ever, this is about the worst case one can imagine in which to do it (short of genuine national security disclosures). Steve On 11/2/07, Volokh, Eugene [EMAIL PROTECTED] wrote: Setting aside all the other factors for now, I hope we could agree that viewing this sort of picketing as conduct is the wrong way for courts to go. The picketing is offensive precisely because of the message it communicates. The noncommunicative components (the presence of people, the fact that they occupy space on the sidewalk, the fact that they carry signs on sticks) are irrelevant here (unless the picketing somehow blocked the driveway into the cemetery or some such, which I don't believe it did). Treating this speech as conduct works as poorly, I think, as Justice Blackmun's view in Cohen v. California that Cohen's absurd and immature antic ... was mainly conduct and little speech. Whatever the bottom line, it seems to me that courts should confront the true nature of what's going on here, and what's going on here is speech that's offensive precisely because it's speech. Eugene Alan Brownstein writes: I think Eugene is right. This is, at its core, a content-based restriction on speech. The context, in my judgment, is primarily relevant to three questions: whether the penalty on speech can be justified because of the consequences of the speech, whether the context is such that we want to view this expression as something other than speech (some kind of conduct) or whether we view this as some kind of speech that is not protected by the first amendment. It is never been clear to me which of these reasons explains why certain kinds of expressive activities can be punished as harassment - but clearly it is permissible to punish harassment in certain circumstances. The
RE: Of Phelps and Persecution
Picking up on Marci's comment, suppose a town enacted an ordinance that prohibited the display of signs or banners that held the decedent up to contempt or ridicule (or expressed the message that the decedent deserved to die or was unworthy to be mourned) within 1000 feet of a burial service. Something like the law at issue in Boos v. Barry, but with the goal of protecting the privacy and dignity of the service and mourners. It is a content discriminatory law and should be subjected to strict scrutiny. Does the state have a compelling interest in protecting grieving family members and friends so that they can bury their dead in peace and without offensive disturbances? Alan Brownstein From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Fri 11/2/2007 3:24 PM To: religionlaw@lists.ucla.edu Subject: Re: Of Phelps and Persecution Chris Lund has put the cart before the horse here. Measuring the neutrality of the law according to whether the organizations' assets are exhausted is backward. Strong impact of a neutral law does not prove by itself that it is not neutral -- it just may prove that the religious entity acted in ways that severely harm others. It is simply a fact that religious organizations -- just like businesses -- may cause such harm that losing all of their assets even falls short of what they should owe society for what they have done. Thus, the impact of the law may well prove a lot more about the wrongdoing within the organization than the law's neutrality. It is not unconstitutional for a religious organization to be put out of business by the operation of neutral, generally applicable laws when the behavior has been as execrable as the behavior is here. Now, if the tort law ONLY impacted religious organizations and no secular organizations (like the law banning sacrifice in Lukumi), there might be some argument about neutrality, but I have yet to see the tort law that is directed solely at or works only against religious organizations. For what it's worth, the speech issue in my view is limited solely to place analysis. Those arguing that there is something especially problematic in the delivery of this personal message against a family at this location are very persuasive. If this group wants to make these points on the apron in front of the Supreme Court or other public place removed from the family's observance, they deserve protection, despite the ugliness of their message. Doing it in physical proximity of a mourning family observing their religious obligations to their dead is a very different matter. The First Amendment does not guarantee anyone the optimal location for speech, even when the speech is otherwise highly protected. Marci Marci A. Hamilton Visiting Professor of Public Affairs Kathleen and Martin Crane Senior Research Fellow Program in Law and Public Affairs Woodrow Wilson School Princeton University The Hare Krishnas and Unification Churches faced similarly devastating verdicts because of IIED and invasion-of-privacy claims brought by private individuals who wanted their destruction, and that reflected how neutral and generally applicable tort rules could combine with jury discretion to be devastingly non-neutral. If I'm remembering Doug Laycock's Remnants piece right, all of Krishna's land holdings in the United States were put into receivership to secure just one of the judgments. See what's new at AOL.com http://www.aol.com/?NCID=AOLCMP0030001170 and Make AOL Your Homepage http://www.aol.com/mksplash.adp?NCID=AOLCMP0030001169 . winmail.dat___ 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.
