RE: Cert. granted in Snyder v. Phelps.
Figuring out the just how far picketers can be kept from a funeral, assuming they can be kept some distance away at all), is going to be hard to determine, as Eugene suggests. I might argue that the distances addressed in Frisby and Madsen are distinguishable in at least one sense. In both cases the area in which speech could be legitimately restricted was based pretty exclusively on place parameters. Because there are special privacy interests inherent in one's home, residential picketing can be restricted to a limited extent. There was no suggestion in Frisby that the privacy interests of the captive audience changed significantly with time. Picketing at a funeral implicates time as well as place. There is a certain period of time, during the funeral, when the mourners are uniquely vulnerable and deserve special respect for their privacy. Restrictions on picketing at a cemetery targeting a gravesite after the funeral is over might require a different analysis and have to be reduced in scope or perhaps rejected entirely. Conversely, the state might be justified in restricting picketing at a greater distance that was accepted in Frisby during the relatively brief time the funeral takes place. It is also often the case that cemeteries are generally very open spaces where visual lines of sight extend for a significant distance. Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, March 11, 2010 10:08 AM To: 'Law & Religion issues for Law Academics' Subject: RE: Cert. granted in Snyder v. Phelps. I appreciate Alan's arguments, but let me probe the Frisby v. Schultz analogy a bit: The Court stressed in Frisby that the law was constitutional partly because it left open ample alternative channels, including the ability to march through the neighborhood. And Madsen v. Women's Health Center struck down a ban on picketing (albeit contained in a content-neutral injunction rather than a content-neutral ordinance) within 300 feet of a residence. Finally, Frisby followed Carey v. Brown, which struck down a content-based residential picketing ban, and Frisby stressed the neutrality of the Brookfield ordinance in distinguishing Carey. So this suggests that, even when it comes to content-neutral restrictions (as opposed to the content-based one involved in this case), Frisby doesn't justify a restriction on speech that's some distance from the funeral; where the line would be drawn is hard to tell, but it seems that 1000 feet is pretty far outside the line. Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan > Sent: Wednesday, March 10, 2010 11:43 AM > To: Law & Religion issues for Law Academics > Subject: RE: Cert. granted in Snyder v. Phelps. > > 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 &g
RE: Cert. granted in Snyder v. Phelps.
I appreciate Alan's arguments, but let me probe the Frisby v. Schultz analogy a bit: The Court stressed in Frisby that the law was constitutional partly because it left open ample alternative channels, including the ability to march through the neighborhood. And Madsen v. Women's Health Center struck down a ban on picketing (albeit contained in a content-neutral injunction rather than a content-neutral ordinance) within 300 feet of a residence. Finally, Frisby followed Carey v. Brown, which struck down a content-based residential picketing ban, and Frisby stressed the neutrality of the Brookfield ordinance in distinguishing Carey. So this suggests that, even when it comes to content-neutral restrictions (as opposed to the content-based one involved in this case), Frisby doesn't justify a restriction on speech that's some distance from the funeral; where the line would be drawn is hard to tell, but it seems that 1000 feet is pretty far outside the line. Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan > Sent: Wednesday, March 10, 2010 11:43 AM > To: Law & Religion issues for Law Academics > Subject: RE: Cert. granted in Snyder v. Phelps. > > 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 soldie
Re: Cert. granted in Snyder v. Phelps.
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 ___ 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.
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 ___ 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.
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
___
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
Re: Cert. granted in Snyder v. Phelps.
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. ___ 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.
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 ___ 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.
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
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 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
RE: Cert. granted in Snyder v. Phelps.
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 ___ 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.
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 no
RE: Cert. granted in Snyder v. Phelps.
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
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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 o
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 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'
> &g
RE: Cert. granted in Snyder v. Phelps.
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 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.
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
> >
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 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
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 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
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 > 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. > _
RE: Cert. granted in Snyder v. Phelps.
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. > ___
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. ___ 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.
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.
By egregiously hurtful, I intended to suggest expressive conduct that is
hurtful in ways that exceed the more common discomfort people experience when
they are confronted with offensive and disturbing speech in a public venue. As
I recall, the Nazi march in Skokie was through the main public streets of the
town. I don't doubt that this conduct caused distress and anger to the Jewish
residents of Skokie. But I believe that Nazi pickets rejoicing in the death of
Jews and insulting the mourners at Jewish funerals would cause a special kind
of harm to people who are uniquely vulnerable at the time.
Chip is right that public speech targeting particular victims is protected
expression. Targeting in private may be proscribed (as in telephone harassment
laws.) Restrictions on targeting in public are harder to justify. The Phelps
case involves targeting in public that is egregiously hurtful because of the
place and time that it occurs and the vulnerability of its victims. It turns at
least in part on the idea that there is something different about funerals as
activities, cemeteries as locations, and mourners as people and that free
speech doctrine can take that difference into account. If that idea is
mistaken, and speech targeting mourners at a funeral is not considered
especially egregious expressive conduct, than the case is more easily resolved.
As an aside, the Phelps crew has added Jews to the groups it hates. Recent
protests take place outside synagogues and Jewish organizations. It is hard to
argue that they are not targeting Jews in doing so.
Alan Brownstein
Chip Lupu wrote,
The penultimate sentence of Alan's message ("Although there are important
limiting facts in this case that distinguish it from a clearer “picketing at a
funeral case,” at its core this case raises the question of whether speakers
can choose a location for their offensive speech that targets their victims in
an egregiously hurtful way when alternative sites for communicating their
message to the public are equally accessible and at least as likely to be heard
by potentially willing listeners") evokes for me the planned march by the
American Nazi party in Skokie, Illinois in the 1970's. But in that case, there
was reason to believe that the Nazi Party really wanted to reach (and frighten)
the Jews of Skokie as well as reach others. In Snyder, is there any reason to
think that Phelps and his crew wanted to reach the Snyder family (and other
funeral-goers) at all? Perhaps the inclusion by Phelps of anti-Catholic as
well as anti-gay messages suggests that the answer is yes.
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
Original message
>Date: Tue, 9 Mar 2010 13:13:32 -0800
>From: religionlaw-boun...@lists.ucla.edu (on behalf of "Brownstein, Alan"
>)
>Subject: RE: Cert. granted in Snyder v. Phelps.
>To: Law & Religion issues for Law Academics
>
> Eugene notes an important distinction (between
> targeted speech and public speech) and I agree with
> a lot of what he says. But I still find this case to
> be a difficult one that lies somewhere between the
> dissent in Pacifica and the situation in Rowan. If
> making sure that people who are potentially willing
> to receive the speaker's message have an opportunity
> to do so is our primary concern, restricting
> picketing at a funeral allows the speaker the
> freedom to communicate his message everywhere else
> in the city through any medium that is available to
> communicate public messages. The choice of the
> funeral as the side for expression does not maximize
> the likelihood that the speech will be heard by
> potentially willing listeners. It probably does the
> reverse. It does maximize the offense and injury the
> speech will cause to the targeted audience.
>
>
>
> I think that bans on public broadcasting as in
> Pacifica are far more restrictive of speech to a
> willing audience than restricting speech at
> funerals. I agree with Eugene that speech on a labor
> picket line should be more protected than telephone
> calls to strikebreakers, but that is in part because
> the picket line directly addresses the people the
> union is trying to reach for legitimate, persuasive
> reasons - those who do business with the targeted
> company. "I'm glad your strikebreaker son is dead"
> signs at a strikebreaker's funeral would be a harder
> case for me.
>
>
>
> Although there are important limiting facts in this
> case that distinguish it from a clearer "picketing
> a
RE: Cert. granted in Snyder v. Phelps.
The penultimate sentence of Alan's message ("Although there are important
limiting facts in this case that distinguish it from a clearer “picketing at a
funeral case,” at its core this case raises the question of whether speakers
can choose a location for their offensive speech that targets their victims in
an egregiously hurtful way when alternative sites for communicating their
message to the public are equally accessible and at least as likely to be heard
by potentially willing listeners") evokes for me the planned march by the
American Nazi party in Skokie, Illinois in the 1970's. But in that case, there
was reason to believe that the Nazi Party really wanted to reach (and frighten)
the Jews of Skokie as well as reach others. In Snyder, is there any reason to
think that Phelps and his crew wanted to reach the Snyder family (and other
funeral-goers) at all? Perhaps the inclusion by Phelps of anti-Catholic as
well as anti-gay messages suggests that the answer is yes.
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
Original message
>Date: Tue, 9 Mar 2010 13:13:32 -0800
>From: religionlaw-boun...@lists.ucla.edu (on behalf of "Brownstein, Alan"
>)
>Subject: RE: Cert. granted in Snyder v. Phelps.
>To: Law & Religion issues for Law Academics
>
> Eugene notes an important distinction (between
> targeted speech and public speech) and I agree with
> a lot of what he says. But I still find this case to
> be a difficult one that lies somewhere between the
> dissent in Pacifica and the situation in Rowan. If
> making sure that people who are potentially willing
> to receive the speaker's message have an opportunity
> to do so is our primary concern, restricting
> picketing at a funeral allows the speaker the
> freedom to communicate his message everywhere else
> in the city through any medium that is available to
> communicate public messages. The choice of the
> funeral as the side for expression does not maximize
> the likelihood that the speech will be heard by
> potentially willing listeners. It probably does the
> reverse. It does maximize the offense and injury the
> speech will cause to the targeted audience.
>
>
>
> I think that bans on public broadcasting as in
> Pacifica are far more restrictive of speech to a
> willing audience than restricting speech at
> funerals. I agree with Eugene that speech on a labor
> picket line should be more protected than telephone
> calls to strikebreakers, but that is in part because
> the picket line directly addresses the people the
> union is trying to reach for legitimate, persuasive
> reasons - those who do business with the targeted
> company. "I'm glad your strikebreaker son is dead"
> signs at a strikebreaker's funeral would be a harder
> case for me.
>
>
>
> Although there are important limiting facts in this
> case that distinguish it from a clearer "picketing
> at a funeral case," at its core this case raises
> the question of whether speakers can choose a
> location for their offensive speech that targets
> their victims in an egregiously hurtful way when
> alternative sites for communicating their message to
> the public are equally accessible and at least as
> likely to be heard by potentially willing listeners.
> I'm still thinking about the answer to that
> question.
>
>
>
> Alan Brownstein
>
>
>
>
>
>
>
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On
> Behalf Of Volokh, Eugene
> Sent: Tuesday, March 09, 2010 11:36 AM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Cert. granted in Snyder v. Phelps.
>
>
>
> I've thought some about the problem, and
> my view is that there is a substantial difference
> between speech that is said just to a particular
> person who one is sure is not interested in hearing
> the message, and speech that is said to a broader
> group that might well include willing listeners.
> The former speech is likely to have at most modest
> value, at least to the listener; the latter speech
> might have considerably more value. That's a rough
> cut, and there might be a different result as to,
> for instance, speech to political candidates or
> political officials (see, e.g., the U.S. v. Popa
> telephone harassment case from the D.C. Circuit
>
RE: Cert. granted in Snyder v. Phelps.
Eugene notes an important distinction (between targeted speech and public speech) and I agree with a lot of what he says. But I still find this case to be a difficult one that lies somewhere between the dissent in Pacifica and the situation in Rowan. If making sure that people who are potentially willing to receive the speaker's message have an opportunity to do so is our primary concern, restricting picketing at a funeral allows the speaker the freedom to communicate his message everywhere else in the city through any medium that is available to communicate public messages. The choice of the funeral as the side for expression does not maximize the likelihood that the speech will be heard by potentially willing listeners. It probably does the reverse. It does maximize the offense and injury the speech will cause to the targeted audience. I think that bans on public broadcasting as in Pacifica are far more restrictive of speech to a willing audience than restricting speech at funerals. I agree with Eugene that speech on a labor picket line should be more protected than telephone calls to strikebreakers, but that is in part because the picket line directly addresses the people the union is trying to reach for legitimate, persuasive reasons - those who do business with the targeted company. "I'm glad your strikebreaker son is dead" signs at a strikebreaker's funeral would be a harder case for me. Although there are important limiting facts in this case that distinguish it from a clearer "picketing at a funeral case," at its core this case raises the question of whether speakers can choose a location for their offensive speech that targets their victims in an egregiously hurtful way when alternative sites for communicating their message to the public are equally accessible and at least as likely to be heard by potentially willing listeners. I'm still thinking about the answer to that question. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, March 09, 2010 11:36 AM To: 'Law & Religion issues for Law Academics' Subject: RE: Cert. granted in Snyder v. Phelps. I've thought some about the problem, and my view is that there is a substantial difference between speech that is said just to a particular person who one is sure is not interested in hearing the message, and speech that is said to a broader group that might well include willing listeners. The former speech is likely to have at most modest value, at least to the listener; the latter speech might have considerably more value. That's a rough cut, and there might be a different result as to, for instance, speech to political candidates or political officials (see, e.g., the U.S. v. Popa telephone harassment case from the D.C. Circuit several years ago). And there might be some contexts where the listener would have to say no, and the speaker would thus get one bite at the apple, rather than having liability be imposed even for the first approach on the theory that the speaker must have known the listener was uninterested. But I think some such distinction is necessary, and is in fact doing the work here. One reason I think so flows from playing out this hypothetical in other contexts. Say, for instance, that union members call strikebreakers to tell them what scum the strikebreakers are; I'm pretty sure that this would rightly be restrictable under telephone harassment statutes, at least after the recipients say "stop calling me" and perhaps even before. Cf. Rowan v. U.S. Post Office Dep't, upholding householders' powers to stop further mailings to their homes. But I take it that the same speech said on the picket line would be protected. The difference, I think, is that at least some people who see the speech might be willing listeners (even if many of the target audience are not). Barring the speech to protect the unwilling listeners would interfere with speech to the willing listeners; barring telephone harassment would not, precisely because it is heard just by the unwilling listener. The same is true even for speech that isn't particularly offensive because of its content. If someone calls to tell me to repent and accept Jesus, and I tell him to stop calling me, I think the law can give my request legally binding effect (again, see Rowan). But billboards and demonstrations to that effect must be protected, even if I can't avoid seeing the message. Perhaps I'm wrong here; but I do think that Rowan supports such a distinction, and that the distinction is the best defense both for Rowan and for telephone harassment law. Justice Brennan's FCC v. Pacifica dissent likewise supports such a distinction: "In Rowan, the Cour
RE: Cert. granted in Snyder v. Phelps.
I've thought some about the problem, and my view is that there is a substantial difference between speech that is said just to a particular person who one is sure is not interested in hearing the message, and speech that is said to a broader group that might well include willing listeners. The former speech is likely to have at most modest value, at least to the listener; the latter speech might have considerably more value. That's a rough cut, and there might be a different result as to, for instance, speech to political candidates or political officials (see, e.g., the U.S. v. Popa telephone harassment case from the D.C. Circuit several years ago). And there might be some contexts where the listener would have to say no, and the speaker would thus get one bite at the apple, rather than having liability be imposed even for the first approach on the theory that the speaker must have known the listener was uninterested. But I think some such distinction is necessary, and is in fact doing the work here. One reason I think so flows from playing out this hypothetical in other contexts. Say, for instance, that union members call strikebreakers to tell them what scum the strikebreakers are; I'm pretty sure that this would rightly be restrictable under telephone harassment statutes, at least after the recipients say "stop calling me" and perhaps even before. Cf. Rowan v. U.S. Post Office Dep't, upholding householders' powers to stop further mailings to their homes. But I take it that the same speech said on the picket line would be protected. The difference, I think, is that at least some people who see the speech might be willing listeners (even if many of the target audience are not). Barring the speech to protect the unwilling listeners would interfere with speech to the willing listeners; barring telephone harassment would not, precisely because it is heard just by the unwilling listener. The same is true even for speech that isn't particularly offensive because of its content. If someone calls to tell me to repent and accept Jesus, and I tell him to stop calling me, I think the law can give my request legally binding effect (again, see Rowan). But billboards and demonstrations to that effect must be protected, even if I can't avoid seeing the message. Perhaps I'm wrong here; but I do think that Rowan supports such a distinction, and that the distinction is the best defense both for Rowan and for telephone harassment law. Justice Brennan's FCC v. Pacifica dissent likewise supports such a distinction: "In Rowan, the Court upheld a statute, permitting householders to require that mail advertisers stop sending them lewd or offensive materials and remove their names from mailing lists. Unlike the situation here, householders who wished to receive the sender's communications were not prevented from doing so." Of course, the majority took a different view, but only limited to vulgarities; I would think that even given Pacifica, speech on the radio would be much more protected against listener vetoes than telephone calls, precisely because giving a listener such a veto would interfere with speech to "[listeners] who wished to receive the [speaker's] communications." This leaves the question whether the speech in Snyder might still fit inside the "said just to a particular person" category, perhaps expanded to include all the people who are going to the funeral. I don't think so; while those might have been a special target of both the Web site and the demonstration 1000 feet from the funeral, the speech there seemed likely to also be seen by other listeners who are potentially willing to receive it, and intended to be seen by such listeners. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Tuesday, March 09, 2010 9:44 AM To: Law & Religion issues for Law Academics Subject: RE: Cert. granted in Snyder v. Phelps. Suppose someone called the grieving father on the phone and told him how happy the caller was to learn that his son was dead because that demonstrated G-d's anger over United States tolerance of homosexuality etc. Would that be actionable as IIED or, alternatively, telephone harassment? Either action would necessarily be content-based. Would it make any difference if the caller notified the press that they were placing such calls and received media attention for doing so? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Monday, March 08, 2010 12:40 PM To: Law & Religion issues for Law Academics Subject: RE: Cert. granted in Snyder v. Phelps. Aren't we running issues together? The qu
RE: Cert. granted in Snyder v. Phelps.
Suppose someone called the grieving father on the phone and told him how happy the caller was to learn that his son was dead because that demonstrated G-d's anger over United States tolerance of homosexuality etc. Would that be actionable as IIED or, alternatively, telephone harassment? Either action would necessarily be content-based. Would it make any difference if the caller notified the press that they were placing such calls and received media attention for doing so? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Monday, March 08, 2010 12:40 PM To: Law & Religion issues for Law Academics Subject: RE: Cert. granted in Snyder v. Phelps. Aren't we running issues together? The question of whether liability attaches for picketing at a funeral (assuming the statute creates a tort right of action)is different than the question of whether the First Amendment allows damages for later comments no matter how offensive on the internet. Second, the invasion of privacy here raises free speech issues which have been controversial since Time v Hill,which is whether a right to privacy exists in people who are ,voluntarily or not, in the public eye. Third, the question outrageous conduct may be a facially neutral rule,but inevitably in practice it involves subjective content based judgments. Would a jury have found that Snyder's' right to be free of outrageous conduct was violated by pickets bearing signs blaming Cheney for their son's death? if not,then isn't viewpoint discrimination inherent in the tort? I really don't know how this case should be decided,but it seems more complicated than the discussion so far.The case also should raises the question of whether,and if and if so when, bruised feeling ought to count for much in the context of regulating public debate. Marc Stern From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Monday, March 08, 2010 1:43 PM To: Law & Religion issues for Law Academics Subject: Re: Cert. granted in Snyder v. Phelps. The state could regulate all picketing by positive law such as a statute or a regulation, so long as it were content neutral, right? But can't use an established tort to accomplish the same thing in a much smaller set of cases? Is that your point Eugene? What is being regulated by the tort: outrageous invasion of privacy. Isn't that content neutral? Does a secondary effects analysis play here at all? The tort isn't targeting speech per se, nor the content of the speech in terms of the topic -- just the deleterious effects of it in a very limited circumstance. On another plane, should the Constitution protect this sort of conduct at all? And if not, is the distinction between a tort based claim used as a regulation and a legislative enactment or regulatory rule sufficiently meaningful to justify different results? Steve On Mon, Mar 8, 2010 at 1:34 PM, Volokh, Eugene mailto:vol...@law.ucla.edu>> wrote: My fear is that the Justices might just think the decision below is wrong; the cert petition only alleged a split with a Sixth Circuit case that upheld a content-neutral funeral picketing ordinance, which (as Chip implicitly suggests) is quite different from the content-based decision in this case. Nonetheless, there is a good deal of tension in lower court cases as to whether the IIED tort is unconstitutional only when the claim is brought by a public figure based on speech on matters of public concern, or also when it's brought by a private figure. I'm not sure that there's a square split among circuit cases and state supreme court cases, but I think there is plenty of disagreement among appellate cases generally, and possibly a square split that the clerk found, even if the petition didn't allege it. Eugene > -Original Message- > From: > religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> > [mailto:religionlaw-<mailto:religionlaw-> > boun...@lists.ucla.edu<mailto:boun...@lists.ucla.edu>] On Behalf Of Ira > (Chip) Lupu > Sent: Monday, March 08, 2010 10:27 AM > To: Law & Religion issues for Law Academics > Subject: Re: Cert. granted in Snyder v. Phelps. > > The 4th Circuit held, on First Amendment grounds, that the state could not > attach > tort liability (intentional infliction of emotional distress, intrusion upon > seclusion, > and civil conspiracy) to the protests engaged in by Phelps and others near the > funeral of the deceased soldier, or to the later-posted comments on Phelps > website. Is there a Circuit split on cases of this sort? I am wondering > what led > four (or more) Justices to vote for a
RE: Cert. granted in Snyder v. Phelps.
Aren't we running issues together? The question of whether liability
attaches for picketing at a funeral (assuming the statute creates a tort
right of action)is different than the question of whether the First
Amendment allows damages for later comments no matter how offensive on
the internet.
Second, the invasion of privacy here raises free speech issues which
have been controversial since Time v Hill,which is whether a right to
privacy exists in people who are ,voluntarily or not, in the public eye.
Third, the question outrageous conduct may be a facially neutral
rule,but inevitably in practice it involves subjective content based
judgments. Would a jury have found that Snyder's' right to be free of
outrageous conduct was violated by pickets bearing signs blaming Cheney
for their son's death? if not,then isn't viewpoint discrimination
inherent in the tort?
I really don't know how this case should be decided,but it seems more
complicated than the discussion so far.The case also should raises the
question of whether,and if and if so when, bruised feeling ought to
count for much in the context of regulating public debate.
Marc Stern
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Monday, March 08, 2010 1:43 PM
To: Law & Religion issues for Law Academics
Subject: Re: Cert. granted in Snyder v. Phelps.
The state could regulate all picketing by positive law such as a statute
or a regulation, so long as it were content neutral, right? But can't
use an established tort to accomplish the same thing in a much smaller
set of cases? Is that your point Eugene?
What is being regulated by the tort: outrageous invasion of privacy.
Isn't that content neutral?
Does a secondary effects analysis play here at all? The tort isn't
targeting speech per se, nor the content of the speech in terms of the
topic -- just the deleterious effects of it in a very limited
circumstance.
On another plane, should the Constitution protect this sort of conduct
at all? And if not, is the distinction between a tort based claim used
as a regulation and a legislative enactment or regulatory rule
sufficiently meaningful to justify different results?
Steve
On Mon, Mar 8, 2010 at 1:34 PM, Volokh, Eugene
wrote:
My fear is that the Justices might just think the
decision below is wrong; the cert petition only alleged a split with a
Sixth Circuit case that upheld a content-neutral funeral picketing
ordinance, which (as Chip implicitly suggests) is quite different from
the content-based decision in this case.
Nonetheless, there is a good deal of tension in lower
court cases as to whether the IIED tort is unconstitutional only when
the claim is brought by a public figure based on speech on matters of
public concern, or also when it's brought by a private figure. I'm not
sure that there's a square split among circuit cases and state supreme
court cases, but I think there is plenty of disagreement among appellate
cases generally, and possibly a square split that the clerk found, even
if the petition didn't allege it.
Eugene
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu
> Sent: Monday, March 08, 2010 10:27 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Cert. granted in Snyder v. Phelps.
>
> The 4th Circuit held, on First Amendment grounds, that the
state could not attach
> tort liability (intentional infliction of emotional distress,
intrusion upon seclusion,
> and civil conspiracy) to the protests engaged in by Phelps and
others near the
> funeral of the deceased soldier, or to the later-posted
comments on Phelps
> website. Is there a Circuit split on cases of this sort? I
am wondering what led
> four (or more) Justices to vote for a cert grant in this case
(especially in light of
> what seems to be the well-recognized state power to create
content-neutral and
> viewpoint-neutral regulations about picketing in close
proximity to a funeral
> service).
>
>
> Ira C. Lupu
> F. Elwood & Eleanor Davis Professor of Law
> George Washington University Law School
> 2000 H St., NW
> Washington, DC 20052
> (202)994-7053
> My SSRN papers are here:
>
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
>
>
> Original message
> >Date: Mon, 8 Mar 2010 08:14:39 -0800 (PST)
> >From: religionlaw-boun...@lists.ucla
RE: Cert. granted in Snyder v. Phelps.
By “directed at,” do you mean “said to,” “said about,” or something else? From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, March 08, 2010 12:12 PM To: religionlaw@lists.ucla.edu Subject: Re: Cert. granted in Snyder v. Phelps. Setting aside the facts of this particular case, do you think that local government could regulate "speech directed at a grieving family or decedent during the funeral"? Thus, whether the speech is positive, negative, or neutral with respect to the decedent, the decedent's family, or whoever, it could be suppressed. In other words, what about a right of privacy around funerals? Marci -Original Message- From: Volokh, Eugene To: 'religionlaw@lists.ucla.edu' Sent: Mon, Mar 8, 2010 3:00 pm Subject: Re: Cert. granted in Snyder v. Phelps. From: Volokh, Eugene Sent: Monday, March 08, 2010 11:46 AM To: 'religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>' Subject: RE: Cert. granted in Snyder v. Phelps. The trouble is that the location of the speech was (1) partly on the Web, and (2) partly 1000 feet away from the funeral. Unless the Court is prepared to say that any speech about a funeral that’s 1000 feet from the funeral is regulable, the only way it can uphold this verdict is by concluding that the “solemnity needed at funerals” is interfered with by any speech – including speech that is actually not seen at the time by the plaintiff (the plaintiff testified that he couldn’t see the 1000-feet-away protest) – that harshly criticizes the decedent. So I can’t quite see how we can avoid “looking at this from the speech side.” Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu?>] On Behalf Of hamilto...@aol.com<mailto:hamilto...@aol.com> Sent: Monday, March 08, 2010 11:35 AM To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu> Subject: Re: Cert. granted in Snyder v. Phelps. I wonder if the Justices have taken the case to give guidance on what local and state governments may do to protect funeral-goers. Instead of looking at this from the speech side, I would tend to look at it from the perspective of the location of the speech. Surely government may create and enforce the conditions for solemnity needed at funerals. Such conditions would apply whether the content of the interfering speech (or noise) was negative as in this case or positive (say the deceased is a rock star and the interference is coming from groupies). Fundamental common sense says that funerals can be protected in this way and that what has transpired in these cases generally should be capable of being deterred. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University ___ To post, send message to Religionlaw@lists.ucla.edu<mailto: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.
Setting aside the facts of this particular case, do you think that local government could regulate "speech directed at a grieving family or decedent during the funeral"? Thus, whether the speech is positive, negative, or neutral with respect to the decedent, the decedent's family, or whoever, it could be suppressed. In other words, what about a right of privacy around funerals? Marci -Original Message- From: Volokh, Eugene To: 'religionlaw@lists.ucla.edu' Sent: Mon, Mar 8, 2010 3:00 pm Subject: Re: Cert. granted in Snyder v. Phelps. From: Volokh, Eugene Sent: Monday, March 08, 2010 11:46 AM To: 'religionlaw@lists.ucla.edu' Subject: RE: Cert. granted in Snyder v. Phelps. The trouble is that the location of the speech was (1) partly on the Web, and (2) partly 1000 feet away from the funeral. Unless the Court is prepared to say that any speech about a funeral that’s 1000 feet from the funeral is regulable, the only way it can uphold this verdict is by concluding that the “solemnity needed at funerals” is interfered with by any speech – including speech that is actually not seen at the time by the plaintiff (the plaintiff testified that he couldn’t see the 1000-feet-away protest) – that harshly criticizes the decedent. So I can’t quite see how we can avoid “looking at this from the speech side.” Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, March 08, 2010 11:35 AM To: religionlaw@lists.ucla.edu Subject: Re: Cert. granted in Snyder v. Phelps. I wonder if the Justices have taken the case to give guidance on what local and state governments may do to protect funeral-goers. Instead of looking at this from the speech side, I would tend to look at it from the perspective of the location of the speech. Surely government may create and enforce the conditions for solemnity needed at funerals. Such conditions would apply whether the content of the interfering speech (or noise) was negative as in this case or positive (say the deceased is a rock star and the interference is coming from groupies). Fundamental common sense says that funerals can be protected in this way and that what has transpired in these cases generally should be capable of being deterred. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University ___ o post, send message to Religionlaw@lists.ucla.edu o subscribe, unsubscribe, change options, or get password, see ttp://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. nyone can subscribe to the list and read messages that are posted; people can ead the Web archives; and list members can (rightly or wrongly) forward the essages 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.
From: Volokh, Eugene Sent: Monday, March 08, 2010 11:46 AM To: 'religionlaw@lists.ucla.edu' Subject: RE: Cert. granted in Snyder v. Phelps. The trouble is that the location of the speech was (1) partly on the Web, and (2) partly 1000 feet away from the funeral. Unless the Court is prepared to say that any speech about a funeral that’s 1000 feet from the funeral is regulable, the only way it can uphold this verdict is by concluding that the “solemnity needed at funerals” is interfered with by any speech – including speech that is actually not seen at the time by the plaintiff (the plaintiff testified that he couldn’t see the 1000-feet-away protest) – that harshly criticizes the decedent. So I can’t quite see how we can avoid “looking at this from the speech side.” Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, March 08, 2010 11:35 AM To: religionlaw@lists.ucla.edu Subject: Re: Cert. granted in Snyder v. Phelps. I wonder if the Justices have taken the case to give guidance on what local and state governments may do to protect funeral-goers. Instead of looking at this from the speech side, I would tend to look at it from the perspective of the location of the speech. Surely government may create and enforce the conditions for solemnity needed at funerals. Such conditions would apply whether the content of the interfering speech (or noise) was negative as in this case or positive (say the deceased is a rock star and the interference is coming from groupies). Fundamental common sense says that funerals can be protected in this way and that what has transpired in these cases generally should be capable of being deterred. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University ___ 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.
I wonder if the Justices have taken the case to give guidance on what local and state governments may do to protect funeral-goers. Instead of looking at this from the speech side, I would tend to look at it from the perspective of the location of the speech. Surely government may create and enforce the conditions for solemnity needed at funerals. Such conditions would apply whether the content of the interfering speech (or noise) was negative as in this case or positive (say the deceased is a rock star and the interference is coming from groupies). Fundamental common sense says that funerals can be protected in this way and that what has transpired in these cases generally should be capable of being deterred. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University -Original Message- From: Brownstein, Alan To: Law & Religion issues for Law Academics Sent: Mon, Mar 8, 2010 2:10 pm Subject: RE: Cert. granted in Snyder v. Phelps. I have no idea what the Justices are thinking about this issue. But it is worth oting that in Hill v. Colorado, some of the dissenting justices argued that it ould be better for free speech purposes for a state to adopt a narrower rdinance that singles out harassment or other expressive activities that may be onstitutionally restricted as opposed to a broader, content neutral statute hat prohibits some clearly protected speech. Of course, that approach would equire the Court to come up with a constitutionally acceptable definition of arassment -- something the Court has never done and has avoided in the past e.g. it never grants cert. to telephone harassment cases.) It is also true, as Eugene suggests, that Intentional Infliction of Emotional istress is very much a speech-based tort and that we have nothing like the uidance as to how courts are to address free speech concerns involving this ause of action that we have in defamation cases. Alan Brownstein -Original Message- rom: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] n Behalf Of Volokh, Eugene ent: Monday, March 08, 2010 10:34 AM o: 'Law & Religion issues for Law Academics' ubject: RE: Cert. granted in Snyder v. Phelps. My fear is that the Justices might just think the decision below is wrong; he cert petition only alleged a split with a Sixth Circuit case that upheld a ontent-neutral funeral picketing ordinance, which (as Chip implicitly suggests) s quite different from the content-based decision in this case. Nonetheless, there is a good deal of tension in lower court cases as to hether the IIED tort is unconstitutional only when the claim is brought by a ublic figure based on speech on matters of public concern, or also when it's rought by a private figure. I'm not sure that there's a square split among ircuit cases and state supreme court cases, but I think there is plenty of isagreement among appellate cases generally, and possibly a square split that he clerk found, even if the petition didn't allege it. Eugene > -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu Sent: Monday, March 08, 2010 10:27 AM To: Law & Religion issues for Law Academics Subject: Re: Cert. granted in Snyder v. Phelps. The 4th Circuit held, on First Amendment grounds, that the state could not ttach tort liability (intentional infliction of emotional distress, intrusion upon eclusion, and civil conspiracy) to the protests engaged in by Phelps and others near the funeral of the deceased soldier, or to the later-posted comments on Phelps website. Is there a Circuit split on cases of this sort? I am wondering what ed four (or more) Justices to vote for a cert grant in this case (especially in ight of what seems to be the well-recognized state power to create content-neutral and viewpoint-neutral regulations about picketing in close proximity to a funeral service). Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message >Date: Mon, 8 Mar 2010 08:14:39 -0800 (PST) >From: religionlaw-boun...@lists.ucla.edu (on behalf of Jeffrey Shulman ) >Subject: Cert. granted in Snyder v. Phelps. >To: religionlaw@lists.ucla.edu > > Though not framed by the Court as raising a question > of religious liberty, this case will be of interest > to those concerned with issues related`to religious > speech. From ScotusBlog: "The Supreme Court, > taking on the emotionally charged issue of picketing > protests at the funerals of soldiers killed in > wartime, agreed
RE: Cert. granted in Snyder v. Phelps.
I have no idea what the Justices are thinking about this issue. But it is worth noting that in Hill v. Colorado, some of the dissenting justices argued that it would be better for free speech purposes for a state to adopt a narrower ordinance that singles out harassment or other expressive activities that may be constitutionally restricted as opposed to a broader, content neutral statute that prohibits some clearly protected speech. Of course, that approach would require the Court to come up with a constitutionally acceptable definition of harassment -- something the Court has never done and has avoided in the past (e.g. it never grants cert. to telephone harassment cases.) It is also true, as Eugene suggests, that Intentional Infliction of Emotional Distress is very much a speech-based tort and that we have nothing like the guidance as to how courts are to address free speech concerns involving this cause of action that we have in defamation cases. Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, March 08, 2010 10:34 AM To: 'Law & Religion issues for Law Academics' Subject: RE: Cert. granted in Snyder v. Phelps. My fear is that the Justices might just think the decision below is wrong; the cert petition only alleged a split with a Sixth Circuit case that upheld a content-neutral funeral picketing ordinance, which (as Chip implicitly suggests) is quite different from the content-based decision in this case. Nonetheless, there is a good deal of tension in lower court cases as to whether the IIED tort is unconstitutional only when the claim is brought by a public figure based on speech on matters of public concern, or also when it's brought by a private figure. I'm not sure that there's a square split among circuit cases and state supreme court cases, but I think there is plenty of disagreement among appellate cases generally, and possibly a square split that the clerk found, even if the petition didn't allege it. Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu > Sent: Monday, March 08, 2010 10:27 AM > To: Law & Religion issues for Law Academics > Subject: Re: Cert. granted in Snyder v. Phelps. > > The 4th Circuit held, on First Amendment grounds, that the state could not > attach > tort liability (intentional infliction of emotional distress, intrusion upon > seclusion, > and civil conspiracy) to the protests engaged in by Phelps and others near the > funeral of the deceased soldier, or to the later-posted comments on Phelps > website. Is there a Circuit split on cases of this sort? I am wondering > what led > four (or more) Justices to vote for a cert grant in this case (especially in > light of > what seems to be the well-recognized state power to create content-neutral and > viewpoint-neutral regulations about picketing in close proximity to a funeral > service). > > > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > > Original message > >Date: Mon, 8 Mar 2010 08:14:39 -0800 (PST) > >From: religionlaw-boun...@lists.ucla.edu (on behalf of Jeffrey Shulman > ) > >Subject: Cert. granted in Snyder v. Phelps. > >To: religionlaw@lists.ucla.edu > > > > Though not framed by the Court as raising a question > > of religious liberty, this case will be of interest > > to those concerned with issues related`to religious > > speech. From ScotusBlog: "The Supreme Court, > > taking on the emotionally charged issue of picketing > > protests at the funerals of soldiers killed in > > wartime, agreed Monday to consider reinstating a $5 > > million damages verdict against a Kansas preacher > > and his anti-gay crusade. . . . The funeral > > picketing case (Snyder v. Phelps, et al., 09-751) > > focuses on a significant question of First Amendment > > law: the degree of constitutional protection given > > to private remarks made about a private person, > > occurring in a largely private setting. The family > > of the dead soldier had won a verdict before a jury, > > but that was overturned by the Fourth Circuit Court, > > finding that the signs displayed at the funeral in > > western Maryland and later comments on an anti-gay > > website were protected speech. The petition
RE: Cert. granted in Snyder v. Phelps.
The IIED tort, and the intrusion upon seclusion tort as applied here, are not content-neutral. Speech on a Web site about a person, and standing with a sign 1000 feet away from a funeral - which is what was at issue here - are not generally tortious, for instance if the speech expresses praise, or even temperate criticism. What made them tortious here is precisely what the speech said. The application of the tort was therefore content-based, just as the application of the IIED tort in Hustler v. Falwell was content-based, and the application of the interference with business relations tort in NAACP v. Claiborne Hardware was content-based. The "secondary effects" analysis does not apply here, because the harmful effects of the speech consist of the offense caused by the content of the speech.. The tendency of speech to offend people is not treated as a secondary effect, and neither is the tendency of speech to cause harms that flow from such offense-for instance, potential fights, R.A.V. v. City of St. Paul (1992) (p. 292), policing costs needed to prevent fights, Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992), and injury to foreign diplomats' dignity caused by protests outside their embassies, Boos v. Barry, 485 U.S. 312 (1988). Restrictions justified by such harms are thus seen as content-based, not content-neutral. "'The emotive impact of speech on its audience is not a 'secondary effect' unrelated to the content of the expression itself." Johnson, quoting Boos; see also R.A.V. "Listeners' reaction to speech is not a content-neutral basis for regulation." Nationalist Movement; see also R.A.V. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Monday, March 08, 2010 10:43 AM To: Law & Religion issues for Law Academics Subject: Re: Cert. granted in Snyder v. Phelps. The state could regulate all picketing by positive law such as a statute or a regulation, so long as it were content neutral, right? But can't use an established tort to accomplish the same thing in a much smaller set of cases? Is that your point Eugene? What is being regulated by the tort: outrageous invasion of privacy. Isn't that content neutral? Does a secondary effects analysis play here at all? The tort isn't targeting speech per se, nor the content of the speech in terms of the topic -- just the deleterious effects of it in a very limited circumstance. On another plane, should the Constitution protect this sort of conduct at all? And if not, is the distinction between a tort based claim used as a regulation and a legislative enactment or regulatory rule sufficiently meaningful to justify different results? Steve ___ 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.
The state could regulate all picketing by positive law such as a statute or a regulation, so long as it were content neutral, right? But can't use an established tort to accomplish the same thing in a much smaller set of cases? Is that your point Eugene? What is being regulated by the tort: outrageous invasion of privacy. Isn't that content neutral? Does a secondary effects analysis play here at all? The tort isn't targeting speech per se, nor the content of the speech in terms of the topic -- just the deleterious effects of it in a very limited circumstance. On another plane, should the Constitution protect this sort of conduct at all? And if not, is the distinction between a tort based claim used as a regulation and a legislative enactment or regulatory rule sufficiently meaningful to justify different results? Steve On Mon, Mar 8, 2010 at 1:34 PM, Volokh, Eugene wrote: >My fear is that the Justices might just think the decision below is > wrong; the cert petition only alleged a split with a Sixth Circuit case that > upheld a content-neutral funeral picketing ordinance, which (as Chip > implicitly suggests) is quite different from the content-based decision in > this case. > >Nonetheless, there is a good deal of tension in lower court cases as > to whether the IIED tort is unconstitutional only when the claim is brought > by a public figure based on speech on matters of public concern, or also > when it's brought by a private figure. I'm not sure that there's a square > split among circuit cases and state supreme court cases, but I think there > is plenty of disagreement among appellate cases generally, and possibly a > square split that the clerk found, even if the petition didn't allege it. > >Eugene > > > -Original Message- > > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > > boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu > > Sent: Monday, March 08, 2010 10:27 AM > > To: Law & Religion issues for Law Academics > > Subject: Re: Cert. granted in Snyder v. Phelps. > > > > The 4th Circuit held, on First Amendment grounds, that the state could > not attach > > tort liability (intentional infliction of emotional distress, intrusion > upon seclusion, > > and civil conspiracy) to the protests engaged in by Phelps and others > near the > > funeral of the deceased soldier, or to the later-posted comments on > Phelps > > website. Is there a Circuit split on cases of this sort? I am wondering > what led > > four (or more) Justices to vote for a cert grant in this case (especially > in light of > > what seems to be the well-recognized state power to create > content-neutral and > > viewpoint-neutral regulations about picketing in close proximity to a > funeral > > service). > > > > > > Ira C. Lupu > > F. Elwood & Eleanor Davis Professor of Law > > George Washington University Law School > > 2000 H St., NW > > Washington, DC 20052 > > (202)994-7053 > > My SSRN papers are here: > > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > > > > > Original message > > >Date: Mon, 8 Mar 2010 08:14:39 -0800 (PST) > > >From: religionlaw-boun...@lists.ucla.edu (on behalf of Jeffrey Shulman > > ) > > >Subject: Cert. granted in Snyder v. Phelps. > > >To: religionlaw@lists.ucla.edu > > > > > > Though not framed by the Court as raising a question > > > of religious liberty, this case will be of interest > > > to those concerned with issues related`to religious > > > speech. From ScotusBlog: "The Supreme Court, > > > taking on the emotionally charged issue of picketing > > > protests at the funerals of soldiers killed in > > > wartime, agreed Monday to consider reinstating a $5 > > > million damages verdict against a Kansas preacher > > > and his anti-gay crusade. . . . The funeral > > > picketing case (Snyder v. Phelps, et al., 09-751) > > > focuses on a significant question of First Amendment > > > law: the degree of constitutional protection given > > > to private remarks made about a private person, > > > occurring in a largely private setting. The family > > > of the dead soldier had won a verdict before a jury, > > > but that was overturned by the Fourth Circuit Court, > > > finding that the signs displayed at the funeral in > > > western Maryland and later comments on an anti-gay > > > website were protected speech. The petition for > > > review seeks the C
RE: Cert. granted in Snyder v. Phelps.
My fear is that the Justices might just think the decision below is wrong; the cert petition only alleged a split with a Sixth Circuit case that upheld a content-neutral funeral picketing ordinance, which (as Chip implicitly suggests) is quite different from the content-based decision in this case. Nonetheless, there is a good deal of tension in lower court cases as to whether the IIED tort is unconstitutional only when the claim is brought by a public figure based on speech on matters of public concern, or also when it's brought by a private figure. I'm not sure that there's a square split among circuit cases and state supreme court cases, but I think there is plenty of disagreement among appellate cases generally, and possibly a square split that the clerk found, even if the petition didn't allege it. Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu > Sent: Monday, March 08, 2010 10:27 AM > To: Law & Religion issues for Law Academics > Subject: Re: Cert. granted in Snyder v. Phelps. > > The 4th Circuit held, on First Amendment grounds, that the state could not > attach > tort liability (intentional infliction of emotional distress, intrusion upon > seclusion, > and civil conspiracy) to the protests engaged in by Phelps and others near the > funeral of the deceased soldier, or to the later-posted comments on Phelps > website. Is there a Circuit split on cases of this sort? I am wondering > what led > four (or more) Justices to vote for a cert grant in this case (especially in > light of > what seems to be the well-recognized state power to create content-neutral and > viewpoint-neutral regulations about picketing in close proximity to a funeral > service). > > > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > > Original message > >Date: Mon, 8 Mar 2010 08:14:39 -0800 (PST) > >From: religionlaw-boun...@lists.ucla.edu (on behalf of Jeffrey Shulman > ) > >Subject: Cert. granted in Snyder v. Phelps. > >To: religionlaw@lists.ucla.edu > > > > Though not framed by the Court as raising a question > > of religious liberty, this case will be of interest > > to those concerned with issues related`to religious > > speech. From ScotusBlog: "The Supreme Court, > > taking on the emotionally charged issue of picketing > > protests at the funerals of soldiers killed in > > wartime, agreed Monday to consider reinstating a $5 > > million damages verdict against a Kansas preacher > > and his anti-gay crusade. . . . The funeral > > picketing case (Snyder v. Phelps, et al., 09-751) > > focuses on a significant question of First Amendment > > law: the degree of constitutional protection given > > to private remarks made about a private person, > > occurring in a largely private setting. The family > > of the dead soldier had won a verdict before a jury, > > but that was overturned by the Fourth Circuit Court, > > finding that the signs displayed at the funeral in > > western Maryland and later comments on an anti-gay > > website were protected speech. The petition for > > review seeks the Court’s protection for families > > attending a funeral from “unwanted” remarks or > > displays by protesters." > > > > Jeffrey Shulman > > > > Jeffrey Shulman > > Associate Professor > > Legal Research and Writing > > Georgetown University Law Center > > > >___ > >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 li
Re: Cert. granted in Snyder v. Phelps.
The 4th Circuit held, on First Amendment grounds, that the state could not attach tort liability (intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy) to the protests engaged in by Phelps and others near the funeral of the deceased soldier, or to the later-posted comments on Phelps website. Is there a Circuit split on cases of this sort? I am wondering what led four (or more) Justices to vote for a cert grant in this case (especially in light of what seems to be the well-recognized state power to create content-neutral and viewpoint-neutral regulations about picketing in close proximity to a funeral service). Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message >Date: Mon, 8 Mar 2010 08:14:39 -0800 (PST) >From: religionlaw-boun...@lists.ucla.edu (on behalf of Jeffrey Shulman >) >Subject: Cert. granted in Snyder v. Phelps. >To: religionlaw@lists.ucla.edu > > Though not framed by the Court as raising a question > of religious liberty, this case will be of interest > to those concerned with issues related`to religious > speech. From ScotusBlog: "The Supreme Court, > taking on the emotionally charged issue of picketing > protests at the funerals of soldiers killed in > wartime, agreed Monday to consider reinstating a $5 > million damages verdict against a Kansas preacher > and his anti-gay crusade. . . . The funeral > picketing case (Snyder v. Phelps, et al., 09-751) > focuses on a significant question of First Amendment > law: the degree of constitutional protection given > to private remarks made about a private person, > occurring in a largely private setting. The family > of the dead soldier had won a verdict before a jury, > but that was overturned by the Fourth Circuit Court, > finding that the signs displayed at the funeral in > western Maryland and later comments on an anti-gay > website were protected speech. The petition for > review seeks the Court’s protection for families > attending a funeral from “unwanted” remarks or > displays by protesters." > > Jeffrey Shulman > > Jeffrey Shulman > Associate Professor > Legal Research and Writing > Georgetown University Law Center > >___ >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.
Cert. granted in Snyder v. Phelps.
Though not framed by the Court as raising a question of religious liberty, this case will be of interest to those concerned with issues related`to religious speech. From ScotusBlog: "The Supreme Court, taking on the emotionally charged issue of picketing protests at the funerals of soldiers killed in wartime, agreed Monday to consider reinstating a $5 million damages verdict against a Kansas preacher and his anti-gay crusade. . . . The funeral picketing case (Snyder v. Phelps, et al., 09-751) focuses on a significant question of First Amendment law: the degree of constitutional protection given to private remarks made about a private person, occurring in a largely private setting. The family of the dead soldier had won a verdict before a jury, but that was overturned by the Fourth Circuit Court, finding that the signs displayed at the funeral in western Maryland and later comments on an anti-gay website were protected speech. The petition for review seeks the Court’s protection for families attending a funeral from “unwanted” remarks or displays by protesters." Jeffrey Shulman Jeffrey Shulman Associate Professor Legal Research and Writing Georgetown University Law Center ___ 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.
