Anti-gay church verdict

[Volokh, Eugene]

    Frisby's conclusion that the ban was content-neutral could be
faulted, for these very reasons.  But at least the ordinance in Frisby
was facially content-neutral, and didn't call for any discretionary
decision about content.  An "outrageousness" standard surely does call
for discretionary decision about content (unless somehow the jury in
this case was instructed to find outrageousness without regard to
content, which I highly doubt).  
 
    Eugene
 

	      
________________________________

	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Conkle, Daniel
O.
	Sent: Thursday, November 01, 2007 9:15 AM
	To: 'Law & Religion issues for Law Academics'
	Subject: RE: Anti-gay church verdict
	
	
	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 
	******************************************* 
	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


________________________________

		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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