Anti-gay church verdict

[Volokh, Eugene]

    Yet surely the claim must have been based on the content of the
speech as well as the time, place, and manner.  It's extremely unlikely
that a jury would find friendly, neutral, or even respectfully
disagreeing demonstrating outside a funeral to be "outrageous" enough to
create severe emotional distress.  So under standard First Amendment
doctrine, this is *not* a TPM restriction, any more than the
restrictions in Carey v. Brown, Boos v. Barry, or a wide range of other
cases were TPM restrictions -- it must be judged as the content-based
restriction that it is.
 
    Eugene


________________________________

	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
	Sent: Thursday, November 01, 2007 5:02 AM
	To: religionlaw at lists.ucla.edu
	Subject: Re: Anti-gay church verdict
	
	

	Tough call.  Hustler v. Falwell says that intentional infliction
of emotional distress, when based on political speech, requires actual
malice.  But there the IIED claim was based on the content of the
speech.  Here, assuming the plaintiff's lawyer made a sensible jury
argument, the IIED claim is based on time, place, and manner.  They
could have said these things, but they could not disrupt a funeral while
they said them.  A court could plausibly distinguish those cases if it
chose.

	Quoting Joel <jlsatty at wwisp.com>:
	
	> From:    Father wins millions from war funeral pickets
	> http://www.msnbc.msn.com/id/21566280/
	>
	>
	>
	> "The church members testified they are following their
religious beliefs by
	> spreading the message that soldiers are dying because America
is too
	> tolerant of homosexuality."
	>
	>
	>
	> "Attorneys for the church maintained in closing arguments
Tuesday that the
	> burial was a public event and that even abhorrent points of
view are
	> protected by the First Amendment, which guarantees freedom of
speech and
	> religion."
	>
	>
	>
	> Any thought on what the appellate court will do?
	>
	>
	>
	> Joel L. Sogol
	>
	> Attorney at Law
	>
	> 811 21st Avenue
	>
	> Tuscaloosa, Alabama  35401
	>
	> ph (205) 345-0966
	>
	> fx  (205) 345-0967
	>
	> jlsatty at wwisp.com
	>
	>
	>
	> Ben Franklin observed that truth wins a fair fight -- which is
why we have
	> evidence rules in U.S. courts.
	>
	>
	>
	>
	
	
	Douglas Laycock
	Yale Kamisar Collegiate Professor of Law
	University of Michigan Law School
	625 S. State St.
	Ann Arbor, MI  48109-1215
	  734-647-9713

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