Anti-gay church verdict

[Conkle, Daniel O.]

Isn't this analogous to Frisby, approving a ban on targeted picketing as "content-neutral" even though the "privacy" interest being protected in Frisby was, in reality, linked in substantial part to protecting homeowners' from being offended by the content of picketers' speech?  In Frisby, the Court cited Kovacs (yes, a regulation of loudspeaker noise indeed is content-neutral) but also Pacifica, which plainly turned on content.    See also Madsen and the other, more recent anti-abortion picketing cases, also finding prohibitions "content-neutral" when, in reality, a good part of the harm being averted by the laws or injunctions in reality depended on content.

So, yes, the interest and harm in this case in reality are linked in substantial part to content, albeit content in the particularly offensive context of a funeral, but I can well imagine the reasoning of Frisby and the anti-abortion picketing cases being extended to support a "content-neutral" conclusion.

Dan Conkle
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Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail conkle at indiana.edu
*******************************************


________________________________
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, November 01, 2007 11:17 AM
To: Law & Religion issues for Law Academics
Subject: RE: Anti-gay church verdict

    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

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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/</horde/services/go.php?url=http%3A%2F%2Fwww.msnbc.msn.com%2Fid%2F21566280%2F>
>
>
>
> "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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