Ban on picketing funerals

[Bob Sheridan]

There must be a name for the sort of philosophical stance one must take 
in judging (a) outrageous speech, and (b) attempts to restrict 
outrageous speech, sort of the way we say that the professor who feigns 
igorance in putting a question to a student ("Why do we study history?") 
is engaging in 'Socratic irony,' (and yes I heard the reference to this 
on NPR over the weekend, thank you).

During class not too long ago, I did read (not in costume) the Mark 
Antony speech to students, and then what seemed the Communist Manifesto 
contained in a circular downloaded from the Web from Schenck (1919), one 
of the heated WWI era cases that Holmes and Co. had some difficulty 
dealing with in a manner that we love today, producing Ver. 1.0 of the 
'clear and present danger' version test    Shakespeare caught the 
students' ears, to coin a phrase, but Marx put them to sleep.  Twenty 
years for that?  Yesterday's explosives are tomorrow's cold oatmeal.

Usually (but not always, as in the flag-burning cases and under God) by 
the time a case reaches the top court a certain amount of cooling-off 
has occurred generally, and the justices and clerks may talk themselves 
into a case of boredom before upholding the right and declaring 
unconstitutional the restriction.

It seems to me that when the rest of the citizenry is going nuts over 
the latest outrage in expression, and there's always the next one, the 
lawyers ought to be the ones who are smart enough, and cool enough, to 
adopt a "This too shall pass attitude," and tell them to cool it before 
they do something stupid. 

A 'time to be cool' attitude?

rs
sfls

guayiya wrote:

> Isn't this as clear a case of "time, place [and manner]" as you can 
> get?   Daniel Hoffman
>
> Volokh, Eugene wrote:
>
>>	Well, they surely *could* be distinguished based on emotional
>>fragility of the mourners -- but recall that even Hill v. Colorado
>>didn't justify a total ban on protesting outside abortion clinics, and
>>stressed that the protesters were still free to speak so long as they
>>didn't approach within 8 feet of people without their permission.
>>
>>	Also, given City of Ladue v. Gilleo, is the possibility of
>>coming to the location after the burial really an adequate alternative,
>>given that it would reach a very different (and likely much smaller)
>>audience?
>>
>>	I guess what troubles me is how much this seems like the
>>slippery slope in action.  Frisby justified itself as being such a
>>narrow decision, only about residential picketing, and only about
>>content-neutral restraints.  Hill then justified itself as being a
>>similarly narrow decision, only about approaches within 8 feet of
>>another, and supposedly (though far less clearly) a content-neutral
>>restriction, too.  Now we're seeing them deployed to justify a rather
>>different restriction.  Presumably if that's upheld, we'll be seeing
>>that as an analogy to something still broader.  Look, if I were sure
>>this would just be used against Phelps and his gang, I wouldn't lose
>>much sleep (cf. the Court's point in Hustler v. Falwell).  But this sure
>>seems to be a growth area for speech restrictions.
>>
>>  
>>
>>>-----Original Message-----
>>>From: Malla Pollack [mailto:mpollack at uidaho.edu] 
>>>Sent: Tuesday, January 03, 2006 3:22 PM
>>>To: Volokh, Eugene; conlawprof at lists.ucla.edu
>>>Subject: RE: Ban on picketing funerals
>>>
>>>
>>>Following Hill v. Colorado (counseling actively near medical 
>>>facilities), funerals can be distinguished based on emotional 
>>>fragility of the mourners and the likelihood that (in this 
>>>setting) the statements of picketers will be received as 
>>>personal insults about the corpse.  Not quite "Fighting 
>>>words," since not about the listening mourner. Picketing has 
>>>ample alternatives if can stand on sidewalk near funeral 
>>>location, or come to location after burial (and bother people 
>>>putting flowers on graves during eg Memorial Day). 
>>>
>>>Malla Pollack
>>>Professor, American Justice School of Law
>>>Visiting Univ. of Idaho, College of Law
>>>mpollack at uidaho.edu
>>>208-885-2017
>>> 
>>>
>>>-----Original Message-----
>>>From: conlawprof-bounces at lists.ucla.edu 
>>>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
>>>Sent: Tuesday, January 03, 2006 3:11 PM
>>>To: conlawprof at lists.ucla.edu
>>>Subject: RE: Ban on picketing funerals
>>>
>>>	By the way, I should stress that I think a good deal of 
>>>picketing is offensive -- e.g., labor picketing calling 
>>>various people "rats" or "scabs" -- and picketing (or other 
>>>protesting) aimed at criticizing the recently deceased near 
>>>the deceased's funerals is especially so.  The question, 
>>>though, is whether this justifies restricting such speech 
>>>(either the speech at funerals or personally insulting speech 
>>>outside people's offices).
>>>
>>>	Eugene
>>>_______________________________________________
>>>To post, send message to Conlawprof at lists.ucla.edu
>>>To subscribe, unsubscribe, change options, or get password, 
>>>see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>>
>>>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 Conlawprof at lists.ucla.edu
>>To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>>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 Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>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.
>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: bobsheridan.vcf
Type: text/x-vcard
Size: 73 bytes
Desc: not available
Url : http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20060103/eb0137a3/bobsheridan.vcf