Anti-gay church verdict

[Brownstein, Alan]

I think Eugene is right. This is, at its core, a content-based
restriction on speech. The context, in my judgment, is primarily
relevant to three questions: whether the penalty on speech can be
justified because of the consequences of the speech, whether the context
is such that we want to view this expression as something other than
speech (some kind of conduct) or  whether we view this as some kind of
speech that is not protected by the first amendment. It is never been
clear to me which of these reasons explains why certain kinds of
expressive activities can be punished as harassment - but clearly it is
permissible to punish harassment in certain circumstances. The tort of
IIED raises a similar mystery. I'm not suggesting that there isn't an
answer that justifies at least some applications of the cause of action.
But I don't think courts have told us what that answer is yet.

 

I would prefer that the situation in this case (and others like it) be
resolved by statutory limits on disruptive speech on public property
adjacent to places like cemeteries, funeral homes, hospitals etc..  The
benefit of a statute is that it can designate the contexts which we
consider totally inappropriate for extremely hurtful speech at specific
times and places. IIED leaves that question up to the discretion of
juries.

 

Alan Brownstein

 

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, November 01, 2007 10:13 AM
To: Law & Religion issues for Law Academics
Subject: RE: Anti-gay church verdict

 

    I agree that it is the question -- but it's important to recognize,
I think, that this is a core content-based speech restriction case, not
just one that is to be judged under the more forgiving Ward v. Rock
Against Racism content-neutral time/place/manner standard.

	 

________________________________

	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
	Sent: Thursday, November 01, 2007 8:37 AM
	To: religionlaw at lists.ucla.edu
	Subject: RE: Anti-gay church verdict

	Well, it's a combination of the two.  Hustler was a pure content
case.  Here the content matters, as Eugene says, and no doubt
contributed to the size of the verdict.  But the time and place and
personal confrontation was also essential to the verdict.  If defendants
had published the same thing in a magazine, as Hustler did, plainly no
liability.  The question is whether it's different when they disrupt a
funeral with the same message.

	Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:
	
	>    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
	>
	>
	
	
	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

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20071101/952bd26e/attachment.htm