"Public concern" in Snyder v. Phelps

[Humbach, Prof. John A.]

Steven Jamar wrote: "but that doesn't address the point"

Okay. Agreed. Please pardon the shorthand in my last post and let me provide the fuller statement (in italics below):

The right to free speech is protected by the Constitution while the right of privacy against non-governmental/non-state actors is not. Therefore, speech ought to trump unless there is a compelling state interest and the restriction on speech is narrowly tailored to address that interest and no less restrictive alternatives are available.

That's the proper "strict scrutiny" way to determine "what restrictions are allowed and under what circumstances."

John A. Humbach, Professor of Law
Pace University School of Law
78 North Broadway
White Plains, New York 10603
Tel. 914-422-4239  -- jhumbach at law.pace.edu
personal homepage: humbach.net
________________________________
From: Steven Jamar [mailto:stevenjamar at gmail.com]
Sent: Thursday, March 03, 2011 9:02 AM
To: Humbach, Prof. John A.
Subject: Re: "Public concern" in Snyder v. Phelps

but that doesn't address the point of what restrictions are allowed and under what circumstances.  while we may have the most absolutist speech regime in the world, it is not absolute and snyder explicitly leaves open the possibility that the various private ceremony non-disruption restrictions on speech enacted in response to westboro's campaign are constitutional.


On Mar 3, 2011, at 8:53 AM, Humbach, Prof. John A. wrote:


As a first reaction, I'd observe that the right to free speech is protected by the Constitution while the right of privacy against non-governmental/non-state actors is not. Therefore, speech ought to trump.

John A. Humbach, Professor of Law
Pace University School of Law
78 North Broadway
White Plains, New York 10603
Tel. 914-422-4239  -- jhumbach at law.pace.edu<mailto:jhumbach at law.pace.edu>
personal homepage: humbach.net<http://humbach.net>
________________________________
From: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, March 03, 2011 8:45 AM
To: CONLAWPROFS professors
Subject: Re: "Public concern" in Snyder v. Phelps

A semi-hypo.  A person who is texting while walking in a mall falls into a fountain because she is not watching where she is going.  This is captured on a security camera and goes viral online.
I assume that after Snyder the use of tort law to restrict speech (posting and disseminating the videotape online) would not be efficacious, but it seems that the door is at least open for a state to regulate by a carefully drawn statute the dissemination of security camera videotapes due to the privacy rights/concerns of individuals.  There seems to me to be a meaningful difference for privacy interests between 20 people seeing someone fall into a fountain live (no replay) and millions seeing in online endlessly.

Any thoughts?

Steve

On Mar 3, 2011, at 8:09 AM, Marty Lederman wrote:



The Court suggests no immunity in Chip's hypo, or at least that the case would be much different with (i) violations of legitimate time, place and manner restrictions; and/or (ii) captive audience concerns.

As for the private/public divide, I'm not sure the Court is saying that Dun & Bradstreet is the sum total on the private side of the ledger.  A crude matrix, with apologies to Robert Post, who long ago explained that these questions are very context-dependent:

1.  Speech to the public about public concerns -- maximum First Amendment protection

2.  Speech to a private audience about public concerns -- presumptively maximum protection (Rankin) (?)

3.  Speech to a private audience about wholly private concerns -- not a lot of 1st Amendment protection (Dun & Bradstreet)

4.  Speech to the public about wholly private concerns, e.g., an internet rant about the perceived evils/flaws of a former paramour -- uncertain constitutional fate.  As to this fourth category, which will be an issue of increasing attention in light of the internet, the Court specifically reserved judgment in Time v. Hlll and in Bartnicki -- and if Breyer is to be believed, the Court in Snyder, too, does not reach the issue.  San Diego v. Roe, however -- a recent, unanimous decision -- does not augur well for much constitutional protection for this last category.


--
Prof. Steven D. Jamar                     vox:  202-806-8017
Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org<http://iipsj.org/>
Howard University School of Law           fax:  202-806-8567
http://iipsj.com/SDJ/

Hope has two beautiful daughters. Their names are anger and courage; anger at the way things are, and courage to see that they do not remain the way they are.
-- Augustine of Hippo.












--
Prof. Steven D. Jamar                     vox:  202-806-8017
Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org
Howard University School of Law           fax:  202-806-8567
http://iipsj.com/SDJ/



"Example is always more efficacious than precept."



Samuel Johnson, 1759




-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/conlawprof/attachments/20110303/0064d77f/attachment.htm>