Re: Cert. granted in Snyder v. Phelps.

[Marc Stern]

So , Marci, you would allow this church to picket same sex weddings? And you 
would bar pickets from a funeral at which cheney spoke about the importance of 
the iraq war?
Marc

- Original Message -
From: religionlaw-boun...@lists.ucla.edu 
To: religionlaw@lists.ucla.edu 
Sent: Wed Mar 10 18:12:40 2010
Subject: Re: Cert. granted in Snyder v. Phelps.

Steve has said much more eloquently what I was trying to say to Eugene.  I 
agree with Steve that the categories drawn by Eugene are not as hard and fast 
as he has depicted them.   
 
This case is teed up to be one of those cases where law professors are 
"shocked" by the reasoning, but only because of unjustified assumptions about 
the rigidity and portent of previous precedents.  The bigger picture here is 
that tort law typically protects the vulnerable and funerals are a paradigmatic 
situation where the one being targeted by the speaker is in a vulnerable 
position deserving societal solicitude and protection.  (To Marc's point that 
there is too slippery of a slope here because if you include funerals you have 
to include marriages --  it seems to me that the reasoning assumes funerals are 
special because of their religious content. From the standpoint of tort law, I 
disagree.  Every person has to face funerals and death regardless of creed and 
it is uniformly a trying time; in contrast, celebrations do not put the 
individual in the position of vulnerability that facing death does).
 
Marci
 
 
 
 
In a message dated 3/10/2010 4:31:47 P.M. Eastern Standard Time, 
stevenja...@gmail.com writes:

Under international law, freedom of speech can be limited when it 
impinges the rights of others provided the limitations are part of the law of 
the country.  Surely that is sound principle that is in fact at least at part 
at work in many 1st Amendment speech cases that would otherwise be even more 
incoherent. 

There are interests other than defamation and triggers other than 
falsity, regardless of Eugene's fondness for staying so close to certain 
precedents and certain key factors or rules.

As we step into uncharted territory, I think the court has time and 
again demonstrated a willingness to find a new principle to justify its 
decision.  So even if Eugene's reading of prior cases is correct (I think it is 
correct as far as it goes, though a bit too cramped), I don't think that 
determines the case.  Nor should it.

I think hate speech impinges on the rights of others in much the same 
way as defamation does and furthermore has societal dimensions beyond the 
individual.  That is, the speech of some is limited by the rights of others and 
the interests of society.  We may treat hate speech as protected speech, but it 
is not so protected that we cannot recognize that a hate motivation proven by 
hate speech can enhance a criminal penalty.

Here, the disruption is invasive and the content of the speech is not 
the target of the tort -- the target of the tort is the right of privacy of the 
people attending the funeral.  That is an established, protected right.  The 
content of the words, as in the hate speech category, affect the result, but 
are not the essence of the invasion.

If we look at what is at stake for first amendment speech principles, 
and the other interests at stake, I think it plausible that the court will see 
this as not bound by Eugene's reading of precedent, but rather as yet another 
case of a different stripe with a different calculus applied.

As Eugene has repeatedly opined, the current free speech jurisprudence 
is largely based on categorizing the speech -- but that is not all there is to 
it.  One need not create another type of speech that is excluded from 
protection here -- or at least not in the categorical way I usually think of 
such exclusions -- but rather all that is needed is a recognition that in fact 
speech is not an absolute right and it may be restricted by a wide range of 
factors.  Thinking of the tort of invasion of privacy as a TPM restriction 
seems to make much more sense than treating it as strictly analogous to the 
defamation cases.

Steve

 
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Re: Cert. granted in Snyder v. Phelps.

[Hamilton02]

 
Steve has said much more eloquently what I was trying to say to  Eugene.  I 
agree with Steve that the categories drawn by Eugene  are not as hard and 
fast as he has depicted them.   
 
This case is teed up to be one of those cases where law professors are  
"shocked" by the reasoning, but only because of unjustified assumptions about  
the rigidity and portent of previous precedents.  The bigger picture here  
is that tort law typically protects the vulnerable and funerals are a  
paradigmatic situation where the one being targeted by the speaker is in a  
vulnerable position deserving societal solicitude and protection.  (To  Marc's 
point that there is too slippery of a slope here because if you include  
funerals you have to include marriages --  it seems to me that the  reasoning 
assumes funerals are special because of their religious  content. From the 
standpoint of tort law, I disagree.  Every person  has to face funerals and 
death 
regardless of creed and it is uniformly a trying  time; in contrast, 
celebrations do not put the individual in the  position of vulnerability that 
facing death does).
 
Marci
 
 
 
 
In a message dated 3/10/2010 4:31:47 P.M. Eastern Standard Time,  
stevenja...@gmail.com writes:

Under  international law, freedom of speech can be limited when it impinges 
the  rights of others provided the limitations are part of the law of the 
country.  Surely that is sound principle that is in fact at least at part at 
work  in many 1st Amendment speech cases that would otherwise be even more  
incoherent.  


There are interests other than defamation and triggers other than  falsity, 
regardless of Eugene's fondness for staying so close to certain  precedents 
and certain key factors or rules.


As we step into uncharted territory, I think the court has time and again  
demonstrated a willingness to find a new principle to justify its decision.  
So even if Eugene's reading of prior cases is correct (I think it is  
correct as far as it goes, though a bit too cramped), I don't think that  
determines the case.  Nor should it.


I think hate speech impinges on the rights of others in much the same way  
as defamation does and furthermore has societal dimensions beyond the  
individual.  That is, the speech of some is limited by the rights of  others 
and 
the interests of society.  We may treat hate speech as  protected speech, 
but it is not so protected that we cannot recognize that a  hate motivation 
proven by hate speech can enhance a criminal penalty.


Here, the disruption is invasive and the content of the speech is not the  
target of the tort -- the target of the tort is the right of privacy of the  
people attending the funeral.  That is an established, protected right.  
The content of the words, as in the hate speech category, affect the  result, 
but are not the essence of the invasion.


If we look at what is at stake for first amendment speech principles, and  
the other interests at stake, I think it plausible that the court will see  
this as not bound by Eugene's reading of precedent, but rather as yet 
another  case of a different stripe with a different calculus applied.


As Eugene has repeatedly opined, the current free speech jurisprudence is  
largely based on categorizing the speech -- but that is not all there is to  
it.  One need not create another type of speech that is excluded from  
protection here -- or at least not in the categorical way I usually think of  
such exclusions -- but rather all that is needed is a recognition that in fact 
 speech is not an absolute right and it may be restricted by a wide range 
of  factors.  Thinking of the tort of invasion of privacy as a TPM  
restriction seems to make much more sense than treating it as strictly  
analogous to 
the defamation cases.


Steve



 
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RE: Cert. granted in Snyder v. Phelps.

[Michael R. Masinter]

I share Eugene's hope that the Court does not deform current doctrine.  
 Although I am not at all confident that it will do so, the Court  
could reverse the fourth circuit on narrow grounds.  The Epic included  
what were alleged to be provably false statements of fact ("Albert and  
Julie . . . taught Matthew . . .to divorce, and to commit adultery.").  
 Writing narrowly, the Court could disagree with the panel's  
conclusion that those false statements of fact were obvious rhetorical  
hyperbole, and hold that they therefore lack any constitutional  
protection.


Whether particular false statements of fact are sufficient to support  
a defamation claim (the district court held they were not) is a  
different question from whether they are constitutionally protected  
speech.  Accordingly the Court could hold consistent with current  
doctrine that the state is free to provide tort remedies for injurious  
false statements of fact, and that whether it chooses to characterize  
the remedy it provides as defamation, IIED, or intrusion into  
seclusion is of no moment since the speech is constitutionally  
unprotected.


Having established that the judgment rests in part on constitutionally  
unprotected speech, the Court could then turn to jury instruction 21,  
agree with the panel that the giving of that instruction was  
reversible error, noting that it fails to distinguish between  
permissible (false statements) and impermissible (outrageously  
offensive statements) grounds for liability and perhaps that it  
delegates to a jury determinations of matters reserved to the court,  
and that therefore the giving of that instruction requires a new trial  
focused on the alleged false statements of fact.


I would prefer to see the Court affirm the panel, but given that there  
is no obvious circuit conflict to resolve, it's tempting to speculate  
that it took the case to reverse.  But there are a range of ways to  
reverse, and, Citizens United notwithstanding, perhaps the Court will  
choose to write narrowly.



Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting "Volokh, Eugene" :

	Well, the premise of the constitutionality of libel law -- whether   
under an actual malice standard, a negligence standard, or a   
(possibly permissible) strict liability standard -- is that false   
statements of fact lack constitutional value; the mens rea standard   
is there chiefly to make sure that libel law doesn't unduly deter   
true statements of fact.


	Here, we don't have false statements of fact.  That the emotional   
distress tort requires recklessness or purpose as to another matter   
(the tendency of the speech to create severe emotional distress)   
doesn't validate it by analogy to libel law -- libel law asks not   
about mental state in the abstract, but about the mental state as to  
 the *false statement of fact*.


	Again, if one wants to argue for an exception for speech, whether   
opinion, true statement, or false statement, that inflicts severe   
emotional distress -- or just does so near a funeral, or just does   
so with regard to a recently dead person, or what have you -- that's  
 fine, and the question would then be what the exact boundaries of   
the exception are, and how the exception can be defended.  But libel  
 law does not offer a helpful analogy.


Eugene


-Original Message-
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Wednesday, March 10, 2010 12:58 PM
To: Law & Religion issues for Law Academics
Subject: Re: Cert. granted in Snyder v. Phelps.

I think Eugene has oversimplified defamation law here.  We hold   
some tortfeasors
to an actual malice standard while others are held to more lax   
standard.  So while
false statements of fact are a constant minimum element of proof   
(because they
lack value AND are very likely to cause harm to reputation) the   
tort liability is
determined according to the role played by the speaker and the role  
 played by the

recipient of the message.  And in private person victim cases a more onerous
standard than actual malice can be applied to the speaker.
  In these cases the tort must be intentional.  So you have already  
 limited the
impact if the tort considerably. I think when one adds that   
funerals and death are
instances where the victim is vulnerable and deserving of   
protection the argument

for liability in these cases is strong

Marci

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Re: Cert. granted in Snyder v. Phelps.

[Steven Jamar]

Under international law, freedom of speech can be limited when it impinges
the rights of others provided the limitations are part of the law of the
country.  Surely that is sound principle that is in fact at least at part at
work in many 1st Amendment speech cases that would otherwise be even more
incoherent.

There are interests other than defamation and triggers other than falsity,
regardless of Eugene's fondness for staying so close to certain precedents
and certain key factors or rules.

As we step into uncharted territory, I think the court has time and again
demonstrated a willingness to find a new principle to justify its decision.
 So even if Eugene's reading of prior cases is correct (I think it is
correct as far as it goes, though a bit too cramped), I don't think that
determines the case.  Nor should it.

I think hate speech impinges on the rights of others in much the same way as
defamation does and furthermore has societal dimensions beyond the
individual.  That is, the speech of some is limited by the rights of others
and the interests of society.  We may treat hate speech as protected speech,
but it is not so protected that we cannot recognize that a hate motivation
proven by hate speech can enhance a criminal penalty.

Here, the disruption is invasive and the content of the speech is not the
target of the tort -- the target of the tort is the right of privacy of the
people attending the funeral.  That is an established, protected right.  The
content of the words, as in the hate speech category, affect the result, but
are not the essence of the invasion.

If we look at what is at stake for first amendment speech principles, and
the other interests at stake, I think it plausible that the court will see
this as not bound by Eugene's reading of precedent, but rather as yet
another case of a different stripe with a different calculus applied.

As Eugene has repeatedly opined, the current free speech jurisprudence is
largely based on categorizing the speech -- but that is not all there is to
it.  One need not create another type of speech that is excluded from
protection here -- or at least not in the categorical way I usually think of
such exclusions -- but rather all that is needed is a recognition that in
fact speech is not an absolute right and it may be restricted by a wide
range of factors.  Thinking of the tort of invasion of privacy as a TPM
restriction seems to make much more sense than treating it as strictly
analogous to the defamation cases.

Steve


On Wed, Mar 10, 2010 at 4:08 PM, Volokh, Eugene  wrote:

>Well, the premise of the constitutionality of libel law -- whether
> under an actual malice standard, a negligence standard, or a (possibly
> permissible) strict liability standard -- is that false statements of fact
> lack constitutional value; the mens rea standard is there chiefly to make
> sure that libel law doesn't unduly deter true statements of fact.
>
>Here, we don't have false statements of fact.  That the emotional
> distress tort requires recklessness or purpose as to another matter (the
> tendency of the speech to create severe emotional distress) doesn't validate
> it by analogy to libel law -- libel law asks not about mental state in the
> abstract, but about the mental state as to the *false statement of fact*.
>
>Again, if one wants to argue for an exception for speech, whether
> opinion, true statement, or false statement, that inflicts severe emotional
> distress -- or just does so near a funeral, or just does so with regard to a
> recently dead person, or what have you -- that's fine, and the question
> would then be what the exact boundaries of the exception are, and how the
> exception can be defended.  But libel law does not offer a helpful analogy.
>
>Eugene
>
>
-- 
Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice
(IIPSJ) Inc.
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RE: Cert. granted in Snyder v. Phelps.

[Volokh, Eugene]

Well, the premise of the constitutionality of libel law -- whether 
under an actual malice standard, a negligence standard, or a (possibly 
permissible) strict liability standard -- is that false statements of fact lack 
constitutional value; the mens rea standard is there chiefly to make sure that 
libel law doesn't unduly deter true statements of fact.

Here, we don't have false statements of fact.  That the emotional 
distress tort requires recklessness or purpose as to another matter (the 
tendency of the speech to create severe emotional distress) doesn't validate it 
by analogy to libel law -- libel law asks not about mental state in the 
abstract, but about the mental state as to the *false statement of fact*.

Again, if one wants to argue for an exception for speech, whether 
opinion, true statement, or false statement, that inflicts severe emotional 
distress -- or just does so near a funeral, or just does so with regard to a 
recently dead person, or what have you -- that's fine, and the question would 
then be what the exact boundaries of the exception are, and how the exception 
can be defended.  But libel law does not offer a helpful analogy.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
> Sent: Wednesday, March 10, 2010 12:58 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Cert. granted in Snyder v. Phelps.
> 
> I think Eugene has oversimplified defamation law here.  We hold some 
> tortfeasors
> to an actual malice standard while others are held to more lax standard.  So 
> while
> false statements of fact are a constant minimum element of proof (because they
> lack value AND are very likely to cause harm to reputation) the tort 
> liability is
> determined according to the role played by the speaker and the role played by 
> the
> recipient of the message.  And in private person victim cases a more onerous
> standard than actual malice can be applied to the speaker.
>   In these cases the tort must be intentional.  So you have already limited 
> the
> impact if the tort considerably. I think when one adds that funerals and 
> death are
> instances where the victim is vulnerable and deserving of protection the 
> argument
> for liability in these cases is strong
> 
> Marci
___
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Anyone can subscribe to the list and read messages that are posted; people can 
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Re: Cert. granted in Snyder v. Phelps.

[hamilton02]

I think Eugene has oversimplified defamation law here.  We hold some 
tortfeasors to an actual malice standard while others are held to more lax 
standard.  So while false statements of fact are a constant minimum element of 
proof (because they lack value AND are very likely to cause harm to reputation) 
the tort liability is determined according to the role played by the speaker 
and the role played by the recipient of the message.  And in private person 
victim cases a more onerous standard than actual malice can be applied to the 
speaker.
  In these cases the tort must be intentional.  So you have already limited the 
impact if the tort considerably. I think when one adds that funerals and death 
are instances where the victim is vulnerable and deserving of protection the 
argument for liability in these cases is strong

Marci

 
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: "Volokh, Eugene" 
Date: Wed, 10 Mar 2010 12:08:25 
To: 'Law & Religion issues for Law Academics'
Subject: RE: Cert. granted in Snyder v. Phelps.

I should think that I'd be extremely distressed to see an article in a 
magazine -- even a clearly non-factual article -- that talked about my supposed 
sexual encounter with my mother, however fictional the encounter would clearly 
be.  The jury found that Falwell was indeed seriously distressed, and I can't 
say such a conclusion is unreasonable.

I also don't quite see what it means to say that defamation "is not 
solely about the speech."  No speech restriction is solely about the speech; 
all speech restrictions punish speech because they see the speech as causing 
some harm, directly or indirectly.  But what makes defamation law permissible 
is that it applies to a category of speech that is generally seen as being of 
no or very low value -- false statements of fact, especially ones said with the 
requisite mens rea.  (I stress just the low value of the speech, and not its 
supposedly great harm, because statements that offend someone by putting him in 
a false light, see Time v. Hill and Cantrell v. Forest City Publishing, are 
restrictable under the same standards.  But in any event, the falsity of the 
statement is necessary for liability to be constitutionally permissible under 
this exception, whether or not such falsity is generally sufficient.)

I can understand arguments that there should be a special First 
Amendment exception for funerals, or for certain kinds of speech about a person 
who has recently died, even if the speech isn't near a funeral (again, recall 
that this case involved speech on a Web site as well), though I'd like to know 
more about the proposed scope of the exception and the specific justification 
for the exception.  But the defamation analogy doesn't work here, I think, just 
as the Ward v. Rock Against Racism analogy doesn't work.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
> Sent: Wednesday, March 10, 2010 12:01 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Cert. granted in Snyder v. Phelps.
>
> I think the argument for liability in Hustler was considerably weaker.   What 
> actual
> harm did Falwell experience?   Nobody reading Hustler could have expected the
> piece was factual. Different set of parameters
>
> I also think that the doctrine of defamation is not solely about the speech 
> but also
> about the value in protecting reputations related to one's livelihood.  
> Perhaps
> Eugene is suggesting these cases can be decided on speech category and
> characteristics without reference to context or balancing against government
> interest?  I don't see how and I  think the government has a compelling 
> interest in
> protecting people from intentional torts when they are in a weakened state as 
> one
> is with the death of a family member or comrade.  Funerals are special
>
> Marci
> Sent from my Verizon Wireless BlackBerry
>
> -Original Message-
> From: "Volokh, Eugene" 
> Date: Wed, 10 Mar 2010 11:20:31
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Cert. granted in Snyder v. Phelps.
>
> I sympathize with the sentiment in favor of liability here (as I did in 
> Hustler v.
> Falwell), though I ultimately disagree with it.
>
> But I would hope that arguments for liability could be made without too 
> much
> deforming of existing doctrine.  The Rock Against Racism cases are expressly
> focused on *content-neutral* restrictions that are aimed at effects of the 
> speech
> caused by things other than its content (e.g., noise).  Whatever might be the
> result here, Rock Against Racism can be of no help.
>
> Likewise, defamation liability is premised on the assertion that false 
> statements
> of fact lack constitutional value (Gertz).  But that very paragraph in Gertz 
> starts
> this way:  "We begin with the common grou

RE: Cert. granted in Snyder v. Phelps.

[Volokh, Eugene]

I should think that I'd be extremely distressed to see an article in a 
magazine -- even a clearly non-factual article -- that talked about my supposed 
sexual encounter with my mother, however fictional the encounter would clearly 
be.  The jury found that Falwell was indeed seriously distressed, and I can't 
say such a conclusion is unreasonable.

I also don't quite see what it means to say that defamation "is not 
solely about the speech."  No speech restriction is solely about the speech; 
all speech restrictions punish speech because they see the speech as causing 
some harm, directly or indirectly.  But what makes defamation law permissible 
is that it applies to a category of speech that is generally seen as being of 
no or very low value -- false statements of fact, especially ones said with the 
requisite mens rea.  (I stress just the low value of the speech, and not its 
supposedly great harm, because statements that offend someone by putting him in 
a false light, see Time v. Hill and Cantrell v. Forest City Publishing, are 
restrictable under the same standards.  But in any event, the falsity of the 
statement is necessary for liability to be constitutionally permissible under 
this exception, whether or not such falsity is generally sufficient.)

I can understand arguments that there should be a special First 
Amendment exception for funerals, or for certain kinds of speech about a person 
who has recently died, even if the speech isn't near a funeral (again, recall 
that this case involved speech on a Web site as well), though I'd like to know 
more about the proposed scope of the exception and the specific justification 
for the exception.  But the defamation analogy doesn't work here, I think, just 
as the Ward v. Rock Against Racism analogy doesn't work.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
> Sent: Wednesday, March 10, 2010 12:01 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Cert. granted in Snyder v. Phelps.
>
> I think the argument for liability in Hustler was considerably weaker.   What 
> actual
> harm did Falwell experience?   Nobody reading Hustler could have expected the
> piece was factual. Different set of parameters
>
> I also think that the doctrine of defamation is not solely about the speech 
> but also
> about the value in protecting reputations related to one's livelihood.  
> Perhaps
> Eugene is suggesting these cases can be decided on speech category and
> characteristics without reference to context or balancing against government
> interest?  I don't see how and I  think the government has a compelling 
> interest in
> protecting people from intentional torts when they are in a weakened state as 
> one
> is with the death of a family member or comrade.  Funerals are special
>
> Marci
> Sent from my Verizon Wireless BlackBerry
>
> -Original Message-
> From: "Volokh, Eugene" 
> Date: Wed, 10 Mar 2010 11:20:31
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Cert. granted in Snyder v. Phelps.
>
> I sympathize with the sentiment in favor of liability here (as I did in 
> Hustler v.
> Falwell), though I ultimately disagree with it.
>
> But I would hope that arguments for liability could be made without too 
> much
> deforming of existing doctrine.  The Rock Against Racism cases are expressly
> focused on *content-neutral* restrictions that are aimed at effects of the 
> speech
> caused by things other than its content (e.g., noise).  Whatever might be the
> result here, Rock Against Racism can be of no help.
>
> Likewise, defamation liability is premised on the assertion that false 
> statements
> of fact lack constitutional value (Gertz).  But that very paragraph in Gertz 
> starts
> this way:  "We begin with the common ground.  Under the First Amendment there
> is no such thing as a false idea.  However pernicious an opinion may seem, we
> depend for its correction not on the conscience of judges and juries but on 
> the
> competition of other ideas."  Whatever limits one might urge on this principle
> based on the supposedly special status of funerals, and speech that is about 
> the
> recently deceased (recall that in this case the liability was based partly on 
> the
> speech on the Web site, so it isn't even limited to speech near a funeral),
> defamation liability is not a helpful analogy here.
>
> Eugene
>
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
> > Sent: Wednesday, March 10, 2010 11:14 AM
> > To: Law & Religion issues for Law Academics
> > Subject: Re: Cert. granted in Snyder v. Phelps.
> >
> > The more I think about twos the less I am inclined to agree with Eugene on 
> > this
> > one
> > I don't think Skokie is an apt analogy because the speec

RE: Cert. granted in Snyder v. Phelps.

[Volokh, Eugene]

Eric Rassbach writes:

> Eugene is right -- I was asking about the sound aspect, i.e. could the 
> protest be
> heard during the funeral ceremony, were they using megaphones, etc.
> 
> Eugene -- if the shouting could be heard during the funeral ceremony, do you 
> think
> IIED liability would be constitutional, in addition to TMP regulations, which 
> I gather
> you think are okay?  And could a jury constitutionally decide to give 
> additional
> damages based on hateful content, or even just content that runs contrary to 
> the
> message of the ceremony (honoring vs. dishonoring the soldier's sacrifice)?

I think a content-neutral TPM regulation would be constitutional, but 
it seems to me that IIED liability with no standard other than "outrageousness" 
would very likely end up being content-based.  I suppose that if the jury were 
instructed that they could find liability solely if they concluded that the 
audibility of *any* sound during a funeral ceremony was outrageous, and caused 
severe emotional distress simply because some sound was audible, that would be 
a content-neutral basis for liability -- but I also can't see how a reasonable 
jury could conclude that those elements could be met simply based on the 
audibility of a sound.

Eugene 
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RE: Cert. granted in Snyder v. Phelps.

[Marc Stern]

I had a bit role at the margins of the Skokie litigation. Teh Holocaust 
survivors in Skokie surely took the march in  Skokie as being aimed at them 
personally and sought to ban it for just that reason. As a result, though lots 
of other towns simply ignored the Nazi request to march, Skokie felt obligated 
to formally reject the Nazi's desire to march-a decision that spurred 
litigation-though the silence of the others towns elicited no response. How, 
without engaging in very subjective decision-making to we decide that some 
events are entitled to protection from free speech and others are not. IS  
funeral protected but not a bar mitzvah? What about weekly mass?
Marc stern

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Wednesday, March 10, 2010 2:14 PM
To: Law & Religion issues for Law Academics
Subject: Re: Cert. granted in Snyder v. Phelps.

The more I think about twos the less I am inclined to agree with Eugene on this 
one I don't think Skokie is an apt analogy because the speech there was not 
directed at any one person or persons.  Nor was it intended to disrupt or 
impact one of life's most sacred and solemn events.  The speakers have chosen 
funerals as their targets to improve tje effectiveness of their essay This is 
more like defamation or perhaps rock against racism.  You have a right to speak 
but no right to optimal delivery or harming others intentionally. 
Marci
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: "Volokh, Eugene" 
Date: Wed, 10 Mar 2010 10:57:22
To: 'Law & Religion issues for Law Academics'
Subject: RE: Cert. granted in Snyder v. Phelps.

I take it that the analogy would have been disruption by sound:  The 
government is certainly entitled to restrict speech that interferes with 
others' speech (or other matters) because of the noise that it creates, and 
many such restrictions are content-neutral.  The disruption there is unrelated 
to the content of the speech, and consists simply of the distraction created by 
the sound, and in extreme cases the inability to hear the other sounds.

But I agree that in the absence of loud noise (Eric asked whether there was 
such noise that could be heard from the funeral, but I think there wasn't), 
there is no analogy:  The alleged disruption did not involve the 
content-neutral distraction caused by the sound, but rather the offense caused 
by the content of the speech.  That makes the restriction unconstitutional, 
though punishment of people ("constituents of an institution" or otherwise) for 
shouting down a speaker generally would be constitutional.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- 
> boun...@lists.ucla.edu] On Behalf Of Steve Sanders
> Sent: Wednesday, March 10, 2010 12:45 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Cert. granted in Snyder v. Phelps.
> 
> I'm scratching my head at Eric's analogy; perhaps he could elaborate?  
> On the one hand, we have constituents of an institution disrupting 
> (however
> inappropriately) an institutional ceremony to protest an institutional 
> policy.  On the other hand, we have outsiders directing a crude and 
> emotionally disturbing message toward a private religious service.  
> The two situations are analogous how?
> 
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu
> > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric 
> > Rassbach
> > Sent: Wednesday, March 10, 2010 10:01 AM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Cert. granted in Snyder v. Phelps.
> >
> >
> > I am sorry if this fact has already been circulated on the list, but 
> > was the protest at issue loud enough to be heard at the location of, 
> > and during, the funeral ceremony?  If so, would this fact pattern be 
> > analogous to disruption of a public university graduation ceremony 
> > by students protesting tuition hikes?
> >
> >
> >
> > PLEASE NOTE NEW ADDRESS
> >
> > Eric Rassbach
> > National Litigation Director
> > The Becket Fund for Religious Liberty 3000 K St. NW, Suite 220 
> > Washington, DC 20007 USA
> > +1.202.349.7214 (tel.)
> > +1.202.955.0090 (fax)
> > www.becketfund.org
> >
> > NOTICE:  This e-mail is from a law firm, The Becket Fund for 
> > Religious Liberty, and is intended solely for the use of the
> > person(s) to whom it is addressed.  If you believe you received this 
> > e-mail in error, please notify the sender immediately, delete the 
> > e-mail from your computer and do not copy or disclose it to anyone 
> > else.  If you are not an existing client of The Becket Fund, do not 
> > construe anything in this e-mail to make you a client unless it 
> > contains a specific statement to that effect and do not disclose 
> > anything to The Becket Fund in reply that you expect or want it to 
> > hold in confi

RE: Cert. granted in Snyder v. Phelps.

[Eric Rassbach]

Eugene is right -- I was asking about the sound aspect, i.e. could the protest 
be heard during the funeral ceremony, were they using megaphones, etc.

Eugene -- if the shouting could be heard during the funeral ceremony, do you 
think IIED liability would be constitutional, in addition to TMP regulations, 
which I gather you think are okay?  And could a jury constitutionally decide to 
give additional damages based on hateful content, or even just content that 
runs contrary to the message of the ceremony (honoring vs. dishonoring the 
soldier's sacrifice)?



PLEASE NOTE NEW ADDRESS

Eric Rassbach
National Litigation Director
The Becket Fund for Religious Liberty
3000 K St. NW, Suite 220
Washington, DC 20007
USA
+1.202.349.7214 (tel.)
+1.202.955.0090 (fax)
www.becketfund.org

NOTICE:  This e-mail is from a law firm, The Becket Fund for Religious Liberty, 
and is intended solely for the use of the person(s) to whom it is addressed.  
If you believe you received this e-mail in error, please notify the sender 
immediately, delete the e-mail from your computer and do not copy or disclose 
it to anyone else.  If you are not an existing client of The Becket Fund, do 
not construe anything in this e-mail to make you a client unless it contains a 
specific statement to that effect and do not disclose anything to The Becket 
Fund in reply that you expect or want it to hold in confidence.  If you 
properly received this e-mail as a client, co-counsel or retained expert of The 
Becket Fund, you should maintain its contents in confidence in order to 
preserve the attorney-client or work product privilege that may be available to 
protect confidentiality.


-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, March 10, 2010 1:57 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Cert. granted in Snyder v. Phelps.

I take it that the analogy would have been disruption by sound:  The 
government is certainly entitled to restrict speech that interferes with 
others' speech (or other matters) because of the noise that it creates, and 
many such restrictions are content-neutral.  The disruption there is unrelated 
to the content of the speech, and consists simply of the distraction created by 
the sound, and in extreme cases the inability to hear the other sounds.

But I agree that in the absence of loud noise (Eric asked whether there 
was such noise that could be heard from the funeral, but I think there wasn't), 
there is no analogy:  The alleged disruption did not involve the 
content-neutral distraction caused by the sound, but rather the offense caused 
by the content of the speech.  That makes the restriction unconstitutional, 
though punishment of people ("constituents of an institution" or otherwise) for 
shouting down a speaker generally would be constitutional.


Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Steve Sanders
> Sent: Wednesday, March 10, 2010 12:45 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Cert. granted in Snyder v. Phelps.
> 
> I'm scratching my head at Eric's analogy; perhaps he could elaborate?  On
> the one hand, we have constituents of an institution disrupting (however
> inappropriately) an institutional ceremony to protest an institutional
> policy.  On the other hand, we have outsiders directing a crude and
> emotionally disturbing message toward a private religious service.  The two
> situations are analogous how?
> 
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu
> > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> > Sent: Wednesday, March 10, 2010 10:01 AM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Cert. granted in Snyder v. Phelps.
> >
> >
> > I am sorry if this fact has already been circulated on the
> > list, but was the protest at issue loud enough to be heard at
> > the location of, and during, the funeral ceremony?  If so,
> > would this fact pattern be analogous to disruption of a
> > public university graduation ceremony by students protesting
> > tuition hikes?
> >
> >
> >
> > PLEASE NOTE NEW ADDRESS
> >
> > Eric Rassbach
> > National Litigation Director
> > The Becket Fund for Religious Liberty
> > 3000 K St. NW, Suite 220
> > Washington, DC 20007
> > USA
> > +1.202.349.7214 (tel.)
> > +1.202.955.0090 (fax)
> > www.becketfund.org
> >
> > NOTICE:  This e-mail is from a law firm, The Becket Fund for
> > Religious Liberty, and is intended solely for the use of the
> > person(s) to whom it is addressed.  If you believe you
> > received this e-mail in error, please notify the sender
> > immediately, delete the e-mail from your computer and do not
> > copy or disclose it to anyone else.  If you are not an
> > existing client of The Becket Fund, do not co

Re: Cert. granted in Snyder v. Phelps.

[hamilton02]

I think the argument for liability in Hustler was considerably weaker.   What 
actual harm did Falwell experience?   Nobody reading Hustler could have 
expected the piece was factual. Different set of parameters

I also think that the doctrine of defamation is not solely about the speech but 
also about the value in protecting reputations related to one's livelihood.  
Perhaps Eugene is suggesting these cases can be decided on speech category and 
characteristics without reference to context or balancing against government 
interest?  I don't see how and I  think the government has a compelling 
interest in protecting people from intentional torts when they are in a 
weakened state as one is with the death of a family member or comrade.  
Funerals are special

Marci
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: "Volokh, Eugene" 
Date: Wed, 10 Mar 2010 11:20:31 
To: 'Law & Religion issues for Law Academics'
Subject: RE: Cert. granted in Snyder v. Phelps.

I sympathize with the sentiment in favor of liability here (as I did in 
Hustler v. Falwell), though I ultimately disagree with it.

But I would hope that arguments for liability could be made without too 
much deforming of existing doctrine.  The Rock Against Racism cases are 
expressly focused on *content-neutral* restrictions that are aimed at effects 
of the speech caused by things other than its content (e.g., noise).  Whatever 
might be the result here, Rock Against Racism can be of no help.

Likewise, defamation liability is premised on the assertion that false 
statements of fact lack constitutional value (Gertz).  But that very paragraph 
in Gertz starts this way:  "We begin with the common ground.  Under the First 
Amendment there is no such thing as a false idea.  However pernicious an 
opinion may seem, we depend for its correction not on the conscience of judges 
and juries but on the competition of other ideas."  Whatever limits one might 
urge on this principle based on the supposedly special status of funerals, and 
speech that is about the recently deceased (recall that in this case the 
liability was based partly on the speech on the Web site, so it isn't even 
limited to speech near a funeral), defamation liability is not a helpful 
analogy here.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
> Sent: Wednesday, March 10, 2010 11:14 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Cert. granted in Snyder v. Phelps.
> 
> The more I think about twos the less I am inclined to agree with Eugene on 
> this
> one
> I don't think Skokie is an apt analogy because the speech there was not 
> directed
> at any one person or persons.  Nor was it intended to disrupt or impact one of
> life's most sacred and solemn events.  The speakers have chosen funerals as
> their targets to improve tje effectiveness of their essay
> This is more like defamation or perhaps rock against racism.  You have a 
> right to
> speak but no right to optimal delivery or harming others intentionally.
> Marci
> Sent from my Verizon Wireless BlackBerry
> 
> -Original Message-
> From: "Volokh, Eugene" 
> Date: Wed, 10 Mar 2010 10:57:22
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Cert. granted in Snyder v. Phelps.
> 
> I take it that the analogy would have been disruption by sound:  The
> government is certainly entitled to restrict speech that interferes with 
> others'
> speech (or other matters) because of the noise that it creates, and many such
> restrictions are content-neutral.  The disruption there is unrelated to the 
> content of
> the speech, and consists simply of the distraction created by the sound, and 
> in
> extreme cases the inability to hear the other sounds.
> 
> But I agree that in the absence of loud noise (Eric asked whether there 
> was
> such noise that could be heard from the funeral, but I think there wasn't), 
> there is
> no analogy:  The alleged disruption did not involve the content-neutral 
> distraction
> caused by the sound, but rather the offense caused by the content of the 
> speech.
> That makes the restriction unconstitutional, though punishment of people
> ("constituents of an institution" or otherwise) for shouting down a speaker
> generally would be constitutional.
> 
> Eugene
> 
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of Steve Sanders
> > Sent: Wednesday, March 10, 2010 12:45 PM
> > To: 'Law & Religion issues for Law Academics'
> > Subject: RE: Cert. granted in Snyder v. Phelps.
> >
> > I'm scratching my head at Eric's analogy; perhaps he could elaborate?  On
> > the one hand, we have constituents of an institution disrupting (however
> > inappropriately) an institutional ceremony to protest an institutional
> > policy.  On the other h

RE: Cert. granted in Snyder v. Phelps.

[Brownstein, Alan]

As always, Eugene raises good points and asks good questions. He is 
correct that I would not consider speech expressed on a web site to be covered 
by my analysis.

As to the question of whether it is possible that some attendees might 
be open to the protestor's message, a court is going to have to reach some 
conclusion about the social reality of the situation. In Frisby v. Shultz, for 
example, the Court concluded that residential picketers "generally do not seek 
to disseminate a message to the general public, but to intrude upon the 
targeted resident and to do so in an especially offensive way." Perhaps a 
similar conclusion about the social reality of the situation might apply to 
picketers at a funeral. 

The Court went on to say in Frisby that "even if some such picketers 
have a broader communicative purpose, their activity nonetheless inherently and 
offensively intrudes on residential privacy." I take that language to means 
that the Court will balance what it believes is the picketers' relatively 
limited interest in communicating to the general public against the egregious 
and offensive means they employ in targeting homeowners (in Frisby) or mourners 
at a funeral (in this case) in order to communicate that public message.

Of course, Frisby involves a content-neutral speech regulation, not a 
content-based penalty. Justifying civil liability based on the content of a 
speaker's message raises more serious free speech concerns. But Frisby involves 
a content-neutral regulation of speech that almost always communicates a 
negative message. (Not too many people picket in front of someone's home to 
express compliments to the homeowner.) Perhaps there is less analytic distance 
in these cases between content-based and content-neutral regulations than is 
true in other cases involving generic time, place, and manner regulations.

Alan Brownstein





-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, March 10, 2010 9:25 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Cert. granted in Snyder v. Phelps.

I appreciate Alan's points (though I probably disagree with him on the 
bottom line), and they might have been relevant to picketing in front of the 
funeral.  But here, as Alan's first sentence acknowledges, liability was based 
partly on the Web site and partly on speech a thousand feet from the funeral.  
I take it that Alan agrees that the first class of speech wouldn't be covered 
by his theory.

But beyond this, let me ask:  I take it that some of the attendees at 
the funeral -- for instance, the decedent's comrades in arms -- might indeed be 
open to the proposition that God disapproves of America's tolerance for 
homosexuality, and that God rightly retaliates against America because of that. 
 Those are certainly not my views, but I can certainly imagine a considerable 
number of people, including fellow soldiers, having them (though only a tiny 
fraction would actually express them on the occasion of the funeral).  
Presumably some of those fellow soldiers, even if upset by the speech, might 
thus be "potentially willing" to hear it (especially since a funeral tends to 
draw many attendees, and not just a very small circle), just as some of the 
residents of Skokie might have been anti-Semites even while many others were 
Jews.  To what extent should that be relevant under Alan's analysis?

Eugene

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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: Cert. granted in Snyder v. Phelps.

[Volokh, Eugene]

I sympathize with the sentiment in favor of liability here (as I did in 
Hustler v. Falwell), though I ultimately disagree with it.

But I would hope that arguments for liability could be made without too 
much deforming of existing doctrine.  The Rock Against Racism cases are 
expressly focused on *content-neutral* restrictions that are aimed at effects 
of the speech caused by things other than its content (e.g., noise).  Whatever 
might be the result here, Rock Against Racism can be of no help.

Likewise, defamation liability is premised on the assertion that false 
statements of fact lack constitutional value (Gertz).  But that very paragraph 
in Gertz starts this way:  "We begin with the common ground.  Under the First 
Amendment there is no such thing as a false idea.  However pernicious an 
opinion may seem, we depend for its correction not on the conscience of judges 
and juries but on the competition of other ideas."  Whatever limits one might 
urge on this principle based on the supposedly special status of funerals, and 
speech that is about the recently deceased (recall that in this case the 
liability was based partly on the speech on the Web site, so it isn't even 
limited to speech near a funeral), defamation liability is not a helpful 
analogy here.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
> Sent: Wednesday, March 10, 2010 11:14 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Cert. granted in Snyder v. Phelps.
> 
> The more I think about twos the less I am inclined to agree with Eugene on 
> this
> one
> I don't think Skokie is an apt analogy because the speech there was not 
> directed
> at any one person or persons.  Nor was it intended to disrupt or impact one of
> life's most sacred and solemn events.  The speakers have chosen funerals as
> their targets to improve tje effectiveness of their essay
> This is more like defamation or perhaps rock against racism.  You have a 
> right to
> speak but no right to optimal delivery or harming others intentionally.
> Marci
> Sent from my Verizon Wireless BlackBerry
> 
> -Original Message-
> From: "Volokh, Eugene" 
> Date: Wed, 10 Mar 2010 10:57:22
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Cert. granted in Snyder v. Phelps.
> 
> I take it that the analogy would have been disruption by sound:  The
> government is certainly entitled to restrict speech that interferes with 
> others'
> speech (or other matters) because of the noise that it creates, and many such
> restrictions are content-neutral.  The disruption there is unrelated to the 
> content of
> the speech, and consists simply of the distraction created by the sound, and 
> in
> extreme cases the inability to hear the other sounds.
> 
> But I agree that in the absence of loud noise (Eric asked whether there 
> was
> such noise that could be heard from the funeral, but I think there wasn't), 
> there is
> no analogy:  The alleged disruption did not involve the content-neutral 
> distraction
> caused by the sound, but rather the offense caused by the content of the 
> speech.
> That makes the restriction unconstitutional, though punishment of people
> ("constituents of an institution" or otherwise) for shouting down a speaker
> generally would be constitutional.
> 
> Eugene
> 
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of Steve Sanders
> > Sent: Wednesday, March 10, 2010 12:45 PM
> > To: 'Law & Religion issues for Law Academics'
> > Subject: RE: Cert. granted in Snyder v. Phelps.
> >
> > I'm scratching my head at Eric's analogy; perhaps he could elaborate?  On
> > the one hand, we have constituents of an institution disrupting (however
> > inappropriately) an institutional ceremony to protest an institutional
> > policy.  On the other hand, we have outsiders directing a crude and
> > emotionally disturbing message toward a private religious service.  The two
> > situations are analogous how?
> >
> > > -Original Message-
> > > From: religionlaw-boun...@lists.ucla.edu
> > > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> > > Sent: Wednesday, March 10, 2010 10:01 AM
> > > To: Law & Religion issues for Law Academics
> > > Subject: RE: Cert. granted in Snyder v. Phelps.
> > >
> > >
> > > I am sorry if this fact has already been circulated on the
> > > list, but was the protest at issue loud enough to be heard at
> > > the location of, and during, the funeral ceremony?  If so,
> > > would this fact pattern be analogous to disruption of a
> > > public university graduation ceremony by students protesting
> > > tuition hikes?
> > >
> > >
> > >
> > > PLEASE NOTE NEW ADDRESS
> > >
> > > Eric Rassbach
> > > National Litigation Director
> > > The Becket Fund for Religious Li

Re: Cert. granted in Snyder v. Phelps.

[hamilton02]

The more I think about twos the less I am inclined to agree with Eugene on this 
one
I don't think Skokie is an apt analogy because the speech there was not 
directed at any one person or persons.  Nor was it intended to disrupt or 
impact one of life's most sacred and solemn events.  The speakers have chosen 
funerals as their targets to improve tje effectiveness of their essay
This is more like defamation or perhaps rock against racism.  You have a right 
to speak but no right to optimal delivery or harming others intentionally. 
Marci
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: "Volokh, Eugene" 
Date: Wed, 10 Mar 2010 10:57:22 
To: 'Law & Religion issues for Law Academics'
Subject: RE: Cert. granted in Snyder v. Phelps.

I take it that the analogy would have been disruption by sound:  The 
government is certainly entitled to restrict speech that interferes with 
others' speech (or other matters) because of the noise that it creates, and 
many such restrictions are content-neutral.  The disruption there is unrelated 
to the content of the speech, and consists simply of the distraction created by 
the sound, and in extreme cases the inability to hear the other sounds.

But I agree that in the absence of loud noise (Eric asked whether there was 
such noise that could be heard from the funeral, but I think there wasn't), 
there is no analogy:  The alleged disruption did not involve the 
content-neutral distraction caused by the sound, but rather the offense caused 
by the content of the speech.  That makes the restriction unconstitutional, 
though punishment of people ("constituents of an institution" or otherwise) for 
shouting down a speaker generally would be constitutional.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Steve Sanders
> Sent: Wednesday, March 10, 2010 12:45 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Cert. granted in Snyder v. Phelps.
> 
> I'm scratching my head at Eric's analogy; perhaps he could elaborate?  On
> the one hand, we have constituents of an institution disrupting (however
> inappropriately) an institutional ceremony to protest an institutional
> policy.  On the other hand, we have outsiders directing a crude and
> emotionally disturbing message toward a private religious service.  The two
> situations are analogous how?
> 
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu
> > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> > Sent: Wednesday, March 10, 2010 10:01 AM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Cert. granted in Snyder v. Phelps.
> >
> >
> > I am sorry if this fact has already been circulated on the
> > list, but was the protest at issue loud enough to be heard at
> > the location of, and during, the funeral ceremony?  If so,
> > would this fact pattern be analogous to disruption of a
> > public university graduation ceremony by students protesting
> > tuition hikes?
> >
> >
> >
> > PLEASE NOTE NEW ADDRESS
> >
> > Eric Rassbach
> > National Litigation Director
> > The Becket Fund for Religious Liberty
> > 3000 K St. NW, Suite 220
> > Washington, DC 20007
> > USA
> > +1.202.349.7214 (tel.)
> > +1.202.955.0090 (fax)
> > www.becketfund.org
> >
> > NOTICE:  This e-mail is from a law firm, The Becket Fund for
> > Religious Liberty, and is intended solely for the use of the
> > person(s) to whom it is addressed.  If you believe you
> > received this e-mail in error, please notify the sender
> > immediately, delete the e-mail from your computer and do not
> > copy or disclose it to anyone else.  If you are not an
> > existing client of The Becket Fund, do not construe anything
> > in this e-mail to make you a client unless it contains a
> > specific statement to that effect and do not disclose
> > anything to The Becket Fund in reply that you expect or want
> > it to hold in confidence.  If you properly received this
> > e-mail as a client, co-counsel or retained expert of The
> > Becket Fund, you should maintain its contents in confidence
> > in order to preserve the attorney-client or work product
> > privilege that may be available to protect confidentiality.
> >
> >
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu
> > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of
> > Volokh, Eugene
> > Sent: Wednesday, March 10, 2010 12:25 PM
> > To: 'Law & Religion issues for Law Academics'
> > Subject: RE: Cert. granted in Snyder v. Phelps.
> >
> > I appreciate Alan's points (though I probably disagree
> > with him on the bottom line), and they might have been
> > relevant to picketing in front of the funeral.  But here, as
> > Alan's first sentence acknowledges, liability was based
> > partly on the Web site and partly on speech a thousand feet
> > from the funeral.  I take it that Alan agrees that the fir

RE: Cert. granted in Snyder v. Phelps.

[Volokh, Eugene]

I take it that the analogy would have been disruption by sound:  The 
government is certainly entitled to restrict speech that interferes with 
others' speech (or other matters) because of the noise that it creates, and 
many such restrictions are content-neutral.  The disruption there is unrelated 
to the content of the speech, and consists simply of the distraction created by 
the sound, and in extreme cases the inability to hear the other sounds.

But I agree that in the absence of loud noise (Eric asked whether there 
was such noise that could be heard from the funeral, but I think there wasn't), 
there is no analogy:  The alleged disruption did not involve the 
content-neutral distraction caused by the sound, but rather the offense caused 
by the content of the speech.  That makes the restriction unconstitutional, 
though punishment of people ("constituents of an institution" or otherwise) for 
shouting down a speaker generally would be constitutional.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Steve Sanders
> Sent: Wednesday, March 10, 2010 12:45 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Cert. granted in Snyder v. Phelps.
> 
> I'm scratching my head at Eric's analogy; perhaps he could elaborate?  On
> the one hand, we have constituents of an institution disrupting (however
> inappropriately) an institutional ceremony to protest an institutional
> policy.  On the other hand, we have outsiders directing a crude and
> emotionally disturbing message toward a private religious service.  The two
> situations are analogous how?
> 
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu
> > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> > Sent: Wednesday, March 10, 2010 10:01 AM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Cert. granted in Snyder v. Phelps.
> >
> >
> > I am sorry if this fact has already been circulated on the
> > list, but was the protest at issue loud enough to be heard at
> > the location of, and during, the funeral ceremony?  If so,
> > would this fact pattern be analogous to disruption of a
> > public university graduation ceremony by students protesting
> > tuition hikes?
> >
> >
> >
> > PLEASE NOTE NEW ADDRESS
> >
> > Eric Rassbach
> > National Litigation Director
> > The Becket Fund for Religious Liberty
> > 3000 K St. NW, Suite 220
> > Washington, DC 20007
> > USA
> > +1.202.349.7214 (tel.)
> > +1.202.955.0090 (fax)
> > www.becketfund.org
> >
> > NOTICE:  This e-mail is from a law firm, The Becket Fund for
> > Religious Liberty, and is intended solely for the use of the
> > person(s) to whom it is addressed.  If you believe you
> > received this e-mail in error, please notify the sender
> > immediately, delete the e-mail from your computer and do not
> > copy or disclose it to anyone else.  If you are not an
> > existing client of The Becket Fund, do not construe anything
> > in this e-mail to make you a client unless it contains a
> > specific statement to that effect and do not disclose
> > anything to The Becket Fund in reply that you expect or want
> > it to hold in confidence.  If you properly received this
> > e-mail as a client, co-counsel or retained expert of The
> > Becket Fund, you should maintain its contents in confidence
> > in order to preserve the attorney-client or work product
> > privilege that may be available to protect confidentiality.
> >
> >
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu
> > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of
> > Volokh, Eugene
> > Sent: Wednesday, March 10, 2010 12:25 PM
> > To: 'Law & Religion issues for Law Academics'
> > Subject: RE: Cert. granted in Snyder v. Phelps.
> >
> > I appreciate Alan's points (though I probably disagree
> > with him on the bottom line), and they might have been
> > relevant to picketing in front of the funeral.  But here, as
> > Alan's first sentence acknowledges, liability was based
> > partly on the Web site and partly on speech a thousand feet
> > from the funeral.  I take it that Alan agrees that the first
> > class of speech wouldn't be covered by his theory.
> >
> > But beyond this, let me ask:  I take it that some of
> > the attendees at the funeral -- for instance, the decedent's
> > comrades in arms -- might indeed be open to the proposition
> > that God disapproves of America's tolerance for
> > homosexuality, and that God rightly retaliates against
> > America because of that.  Those are certainly not my views,
> > but I can certainly imagine a considerable number of people,
> > including fellow soldiers, having them (though only a tiny
> > fraction would actually express them on the occasion of the
> > funeral).  Presumably some of those fellow soldiers, even if
> > upset by the speech, might thus be "potentially willing" to
> > h

RE: Cert. granted in Snyder v. Phelps.

[Steve Sanders]

I'm scratching my head at Eric's analogy; perhaps he could elaborate?  On
the one hand, we have constituents of an institution disrupting (however
inappropriately) an institutional ceremony to protest an institutional
policy.  On the other hand, we have outsiders directing a crude and
emotionally disturbing message toward a private religious service.  The two
situations are analogous how?  

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> Sent: Wednesday, March 10, 2010 10:01 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Cert. granted in Snyder v. Phelps.
> 
> 
> I am sorry if this fact has already been circulated on the 
> list, but was the protest at issue loud enough to be heard at 
> the location of, and during, the funeral ceremony?  If so, 
> would this fact pattern be analogous to disruption of a 
> public university graduation ceremony by students protesting 
> tuition hikes?  
> 
> 
> 
> PLEASE NOTE NEW ADDRESS
> 
> Eric Rassbach
> National Litigation Director
> The Becket Fund for Religious Liberty
> 3000 K St. NW, Suite 220
> Washington, DC 20007
> USA
> +1.202.349.7214 (tel.)
> +1.202.955.0090 (fax)
> www.becketfund.org
> 
> NOTICE:  This e-mail is from a law firm, The Becket Fund for 
> Religious Liberty, and is intended solely for the use of the 
> person(s) to whom it is addressed.  If you believe you 
> received this e-mail in error, please notify the sender 
> immediately, delete the e-mail from your computer and do not 
> copy or disclose it to anyone else.  If you are not an 
> existing client of The Becket Fund, do not construe anything 
> in this e-mail to make you a client unless it contains a 
> specific statement to that effect and do not disclose 
> anything to The Becket Fund in reply that you expect or want 
> it to hold in confidence.  If you properly received this 
> e-mail as a client, co-counsel or retained expert of The 
> Becket Fund, you should maintain its contents in confidence 
> in order to preserve the attorney-client or work product 
> privilege that may be available to protect confidentiality.
> 
> 
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 
> Volokh, Eugene
> Sent: Wednesday, March 10, 2010 12:25 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Cert. granted in Snyder v. Phelps.
> 
>   I appreciate Alan's points (though I probably disagree 
> with him on the bottom line), and they might have been 
> relevant to picketing in front of the funeral.  But here, as 
> Alan's first sentence acknowledges, liability was based 
> partly on the Web site and partly on speech a thousand feet 
> from the funeral.  I take it that Alan agrees that the first 
> class of speech wouldn't be covered by his theory.
> 
>   But beyond this, let me ask:  I take it that some of 
> the attendees at the funeral -- for instance, the decedent's 
> comrades in arms -- might indeed be open to the proposition 
> that God disapproves of America's tolerance for 
> homosexuality, and that God rightly retaliates against 
> America because of that.  Those are certainly not my views, 
> but I can certainly imagine a considerable number of people, 
> including fellow soldiers, having them (though only a tiny 
> fraction would actually express them on the occasion of the 
> funeral).  Presumably some of those fellow soldiers, even if 
> upset by the speech, might thus be "potentially willing" to 
> hear it (especially since a funeral tends to draw many 
> attendees, and not just a very small circle), just as some of 
> the residents of Skokie might have been anti-Semites even 
> while many others were Jews.  To what extent should that be 
> relevant under Alan's analysis?
> 
>   Eugene
> 
> Alan Brownstein writes:
> 
> > >   Although there are important limiting facts in this
> > >   case that distinguish it from a clearer "picketing
> > >   at a funeral case,"  at its core this case raises
> > >   the question of whether speakers can choose a
> > >   location for their offensive speech that  targets
> > >   their victims in an egregiously hurtful way when
> > >   alternative sites for communicating their message to
> > >   the public are equally accessible and at least as
> > >   likely to be heard by potentially willing listeners.
> > >   I'm still thinking about the answer to that
> > >   question.
> ___
> 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) forw

RE: Cert. granted in Snyder v. Phelps.

[Volokh, Eugene]

I know of nothing in the case that suggests this.  The protest was 1000 
feet away from the funeral, so that makes it unlikely that it could be heard 
inside.  And the concurrence states that "Snyder admits he could not see the 
protest"; I take it that if Snyder heard the protest, the opinion would have 
mentioned it.

Eugene


> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> Sent: Wednesday, March 10, 2010 10:01 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Cert. granted in Snyder v. Phelps.
> 
> 
> I am sorry if this fact has already been circulated on the list, but was the 
> protest at
> issue loud enough to be heard at the location of, and during, the funeral
> ceremony?  If so, would this fact pattern be analogous to disruption of a 
> public
> university graduation ceremony by students protesting tuition hikes?
> 
> 
> 
> PLEASE NOTE NEW ADDRESS
> 
> Eric Rassbach
> National Litigation Director
> The Becket Fund for Religious Liberty
> 3000 K St. NW, Suite 220
> Washington, DC 20007
> USA
> +1.202.349.7214 (tel.)
> +1.202.955.0090 (fax)
> www.becketfund.org
> 
> NOTICE:  This e-mail is from a law firm, The Becket Fund for Religious 
> Liberty,
> and is intended solely for the use of the person(s) to whom it is addressed.  
> If you
> believe you received this e-mail in error, please notify the sender 
> immediately,
> delete the e-mail from your computer and do not copy or disclose it to anyone
> else.  If you are not an existing client of The Becket Fund, do not construe
> anything in this e-mail to make you a client unless it contains a specific 
> statement
> to that effect and do not disclose anything to The Becket Fund in reply that 
> you
> expect or want it to hold in confidence.  If you properly received this 
> e-mail as a
> client, co-counsel or retained expert of The Becket Fund, you should maintain 
> its
> contents in confidence in order to preserve the attorney-client or work 
> product
> privilege that may be available to protect confidentiality.
> 
> 
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Wednesday, March 10, 2010 12:25 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Cert. granted in Snyder v. Phelps.
> 
>   I appreciate Alan's points (though I probably disagree with him on the
> bottom line), and they might have been relevant to picketing in front of the 
> funeral.
> But here, as Alan's first sentence acknowledges, liability was based partly 
> on the
> Web site and partly on speech a thousand feet from the funeral.  I take it 
> that Alan
> agrees that the first class of speech wouldn't be covered by his theory.
> 
>   But beyond this, let me ask:  I take it that some of the attendees at 
> the
> funeral -- for instance, the decedent's comrades in arms -- might indeed be 
> open
> to the proposition that God disapproves of America's tolerance for 
> homosexuality,
> and that God rightly retaliates against America because of that.  Those are
> certainly not my views, but I can certainly imagine a considerable number of
> people, including fellow soldiers, having them (though only a tiny fraction 
> would
> actually express them on the occasion of the funeral).  Presumably some of 
> those
> fellow soldiers, even if upset by the speech, might thus be "potentially 
> willing" to
> hear it (especially since a funeral tends to draw many attendees, and not 
> just a
> very small circle), just as some of the residents of Skokie might have been 
> anti-
> Semites even while many others were Jews.  To what extent should that be
> relevant under Alan's analysis?
> 
>   Eugene
> 
> Alan Brownstein writes:
> 
> > >   Although there are important limiting facts in this
> > >   case that distinguish it from a clearer "picketing
> > >   at a funeral case,"  at its core this case raises
> > >   the question of whether speakers can choose a
> > >   location for their offensive speech that  targets
> > >   their victims in an egregiously hurtful way when
> > >   alternative sites for communicating their message to
> > >   the public are equally accessible and at least as
> > >   likely to be heard by potentially willing listeners.
> > >   I'm still thinking about the answer to that
> > >   question.
> ___
> 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: Cert. granted in Snyder v. Phelps.

[Eric Rassbach]

I am sorry if this fact has already been circulated on the list, but was the 
protest at issue loud enough to be heard at the location of, and during, the 
funeral ceremony?  If so, would this fact pattern be analogous to disruption of 
a public university graduation ceremony by students protesting tuition hikes?  



PLEASE NOTE NEW ADDRESS

Eric Rassbach
National Litigation Director
The Becket Fund for Religious Liberty
3000 K St. NW, Suite 220
Washington, DC 20007
USA
+1.202.349.7214 (tel.)
+1.202.955.0090 (fax)
www.becketfund.org

NOTICE:  This e-mail is from a law firm, The Becket Fund for Religious Liberty, 
and is intended solely for the use of the person(s) to whom it is addressed.  
If you believe you received this e-mail in error, please notify the sender 
immediately, delete the e-mail from your computer and do not copy or disclose 
it to anyone else.  If you are not an existing client of The Becket Fund, do 
not construe anything in this e-mail to make you a client unless it contains a 
specific statement to that effect and do not disclose anything to The Becket 
Fund in reply that you expect or want it to hold in confidence.  If you 
properly received this e-mail as a client, co-counsel or retained expert of The 
Becket Fund, you should maintain its contents in confidence in order to 
preserve the attorney-client or work product privilege that may be available to 
protect confidentiality.


-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, March 10, 2010 12:25 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Cert. granted in Snyder v. Phelps.

I appreciate Alan's points (though I probably disagree with him on the 
bottom line), and they might have been relevant to picketing in front of the 
funeral.  But here, as Alan's first sentence acknowledges, liability was based 
partly on the Web site and partly on speech a thousand feet from the funeral.  
I take it that Alan agrees that the first class of speech wouldn't be covered 
by his theory.

But beyond this, let me ask:  I take it that some of the attendees at 
the funeral -- for instance, the decedent's comrades in arms -- might indeed be 
open to the proposition that God disapproves of America's tolerance for 
homosexuality, and that God rightly retaliates against America because of that. 
 Those are certainly not my views, but I can certainly imagine a considerable 
number of people, including fellow soldiers, having them (though only a tiny 
fraction would actually express them on the occasion of the funeral).  
Presumably some of those fellow soldiers, even if upset by the speech, might 
thus be "potentially willing" to hear it (especially since a funeral tends to 
draw many attendees, and not just a very small circle), just as some of the 
residents of Skokie might have been anti-Semites even while many others were 
Jews.  To what extent should that be relevant under Alan's analysis?

Eugene

Alan Brownstein writes:

> >   Although there are important limiting facts in this
> >   case that distinguish it from a clearer "picketing
> >   at a funeral case,"  at its core this case raises
> >   the question of whether speakers can choose a
> >   location for their offensive speech that  targets
> >   their victims in an egregiously hurtful way when
> >   alternative sites for communicating their message to
> >   the public are equally accessible and at least as
> >   likely to be heard by potentially willing listeners.
> >   I'm still thinking about the answer to that
> >   question.
___
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: Cert. granted in Snyder v. Phelps.

[Volokh, Eugene]

I appreciate Alan's points (though I probably disagree with him on the 
bottom line), and they might have been relevant to picketing in front of the 
funeral.  But here, as Alan's first sentence acknowledges, liability was based 
partly on the Web site and partly on speech a thousand feet from the funeral.  
I take it that Alan agrees that the first class of speech wouldn't be covered 
by his theory.

But beyond this, let me ask:  I take it that some of the attendees at 
the funeral -- for instance, the decedent's comrades in arms -- might indeed be 
open to the proposition that God disapproves of America's tolerance for 
homosexuality, and that God rightly retaliates against America because of that. 
 Those are certainly not my views, but I can certainly imagine a considerable 
number of people, including fellow soldiers, having them (though only a tiny 
fraction would actually express them on the occasion of the funeral).  
Presumably some of those fellow soldiers, even if upset by the speech, might 
thus be "potentially willing" to hear it (especially since a funeral tends to 
draw many attendees, and not just a very small circle), just as some of the 
residents of Skokie might have been anti-Semites even while many others were 
Jews.  To what extent should that be relevant under Alan's analysis?

Eugene

Alan Brownstein writes:

> >   Although there are important limiting facts in this
> >   case that distinguish it from a clearer "picketing
> >   at a funeral case,"  at its core this case raises
> >   the question of whether speakers can choose a
> >   location for their offensive speech that  targets
> >   their victims in an egregiously hurtful way when
> >   alternative sites for communicating their message to
> >   the public are equally accessible and at least as
> >   likely to be heard by potentially willing listeners.
> >   I'm still thinking about the answer to that
> >   question.
___
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.