Possible symposium on NAACP v. Claiborne Hardware

[Volokh, Eugene]

        NAACP v. Claiborne Hardware's 20th anniversary is coming up, just at
the time when menacing speech -- and cases applying Claiborne to it -- are
again in the news; consider the Nuremberg Files controversy, and now
abortioncams.com.

        I wonder whether it's time for a symposium on The First Amendment
And Menacing Speech that looks back on the case, and asks whether succeeding
years have proven its merit, cast doubt on it, or both.  I'm quite confident
that, say, the 9th Circuit's Nuremberg Files decision is correct given
Claiborne; I'm much less confident that Claiborne itself is correct, though
I suppose I lean in its favor.  It seems to me time to discuss this issue in
more depth, and the 20th anniversary seems like a good occasion.

        Just wanted to throw this out to the list, in case any of you might
find it worth suggesting to your home law reviews.

        Eugene

. . .

> Why Anti-Abortion Web Site Can Film Patients and Doctors -- Without Their
> Consent
> Likely shielded by First Amendment, activist wants to repackage
> Abortioncams.com footage for public-access cable.
> by Roger Parloff
[from inside.com]

> Tuesday, August 14, 2001
> Emboldened by a recent federal appeals court ruling granting broad First
> Amendment protection for menacing political speech on the Internet, an
> anti-abortion activist has launched Abortioncams.com , a site displaying
> photographs and video footage of patients, doctors and employees entering
> and leaving abortion clinics in 21 states. Four legal experts say the site
> is probably protected under the First Amendment. The activist, Neal
> Horsley
> of Carrolton, GA, plans to repackage the footage into a TV show, Abortion:
> Finally, The Whole Story, which he hopes to air on on public access cable
> channels throughout the country.
>
> "We want you to volunteer to be the local representative to your local
> cable
> access channel for the television program," Horsley explains in an open
> letter on his site. "The program will be produced by [Horsley's] Christian
> Gallery News Service initially in monthly installments and all you will be
> required to do is volunteer to go through the process required by your
> local
> cable access channel."
>
> "I don't think there's an invasion-of-privacy problem," says Professor
> Jack
> Balkin of Yale Law School, who teaches torts and First Amendment law. "If
> [the patients are] out in the open, walking around, [activists] can take a
> picture." . . .
>
> Eugene Volokh, a UCLA law professor and the author of a First Amendment
> textbook, thinks such a claim against abortioncams.com would be foreclosed
> by the same U.S. Supreme Court precedent Judge Kozinski cited in the
> Nuremberg Files case. It concerned an NAACP boycott of white-owned stores
> in
> Port Gibson, MS, from 1966 to 1973; the organization had used "store
> watchers" to record the names of blacks who violated the boycott. Those
> names were mimeographed in community newsletters or read aloud in black
> churches -- "the 1960s equivalents of the Internet," Volokh says.
>
> Some of the listed individuals sustained personal injury or property
> damage.
> Nevertheless, in 1982 the U.S. Supreme Court unanimously ruled that the
> NAACP's use of store-watchers was protected by the First Amendment. "It
> could be," Volokh continues, "that people might now say on reflection,
> 'Wait
> a minute, maybe [the Supreme Court] went too far allowing coercive tactics
> like implied menace and violence or threat of social ostracism.' You could
> criticize [that ruling]. But it's the law."
>
. . .


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