IIED and vagueness

Fri Nov 2 11:51:52 PDT 2007

	1.  Much as Michael and I disagree, at least our disagreement is
*not*, I think, about whether the speech touches on a matter of public
concern.  My post, to which Michael responds, focuses on that question,
and challenges Alan's claim that this speech can be dismissed as not on
a matter of public concern.  I pointed to Phelps' logic (such as it is)
because it was relevant to the public concern question -- Alan's claim
that the speech has at most an "attenuated" connection to the fallen
soldier, or is "irrelevan[t]" or "largely unrelated" rests on an
implicit conclusion that Phelps' logic is mistaken, and that is a
conclusion that I think courts evaluating the First Amendment claim
ought not draw.

	2.  Michael seems to be calling for a new First Amendment
exception here, but I'm not quite sure what it is.  Is it for speech
that "clearly is meant to insult," at least "in the context of a
funeral" (to be precise, outside the funeral)?  Is it just for speech
that "might offend ..., insult ..., or harass [mourners]" "in the
context of a funeral"?  Is it for any speech that is "obscene" (in what
sense?) "targeted" (in what sense?) "insult-as-violence" (in what
sense?)?  Is it only for such speech "in the context of a funeral"?  I'd
feel more comfortable with various proposed First Amendment exceptions
if I had a better sense of just what was being proposed.

	Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of 
> Newsom Michael
> Sent: Friday, November 02, 2007 11:37 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: IIED and vagueness
> 
> 1.	The Phelps group is doing more than just "arguing" a point of
> view regarding sin and homosexuality.
> 
> 2.	There is a difference between "saying" "God bless American
> soldiers" and "Bush killed this soldier."  The second clearly 
> is meant to insult.  The relevant question is whether, in the 
> context of a funeral, the mourners have to put up with stuff 
> that might offend them, insult them, or harass them at a time 
> of great grief and sorrow.
> 
> 3.	The relevant question ought to be not whether we believe Phelps'
> logic, but whether the Constitution forbids protecting people 
> at a time of great sorrow and grief from obscene, targeted 
> insult-as-violence. 
> 
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of 
> Volokh, Eugene
> Sent: Friday, November 02, 2007 12:35 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: IIED and vagueness
> 
> 
> 	It seems to me that this would make "matter of public concern"
> even mushier and viewpoint-based than it already is (or 
> perhaps it would just illustrate the mushiness and potential 
> for viewpoint discrimination).  As best I can tell, the 
> protesters are arguing that the nation has sinned by allowing 
> homosexuality, or allowing gays in the military, or what have 
> you, and the death of soldiers is God's righteous judgment on 
> the country.  That's their viewpoint, vile and illogical as it is.
> 
> 	I take it we'd agree that a demonstration outside a 
> military funeral saying "God bless American soldiers" is on a 
> matter of a public concern.  So, I assume, is a demonstration 
> saying "President Bush killed this soldier."  So, I assume, 
> is a demonstration saying "Soldiers are murderers, and 
> deserve to die" (again, reprehensible as such a demonstration 
> would be).  The relationship between this matter and the 
> funeral of the soldier, who after all had been exercising 
> government power on behalf of our nation, seems hardly 
> attenuated.  Phelps et al.'s view may be irrational, but the 
> connection between it and the funeral of the soldier is more 
> "attenuated" or "irrelevant" only because we don't believe 
> his logic.  
> 
> 	The 3 am calls strike me as a rather weak analogy.  The 
> problem there isn't that the relationship between the speech 
> and me is attenuated, or that the message is irrelevant.  If 
> you called me at 3 am each morning to tell me that my 
> publicly expressed views in some First Amendment debate are 
> unsound -- assume I'm even a limited public figure as to that 
> debate -- that would also be punishable, even though the 
> speech is closely related to me and my public commentary.  It 
> might be punishable under a Rowan-like rationale, especially 
> once I tell you "stop bothering me," since restricting the 
> speech to me doesn't at all interfere with your conveying the 
> message to others.  It might be punishable under some rule 
> that bars repeated unsolicited phone calls during certain 
> hours.  But the rationale here would be genuinely unrelated 
> to any message that I might be conveying, to its supposed 
> irrelevance to my participation in a matter of public 
> concern, or the tendency of the message (even coupled with 
> the time, place, and manner in which it's delivered) to 
> offend me because of what it says.
> 
> 	Eugene
> 
> > -----Original Message-----
> > From: religionlaw-bounces at lists.ucla.edu
> > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of 
> Brownstein, 
> > Alan
> > Sent: Thursday, November 01, 2007 2:58 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: IIED and vagueness
> > 
> > I understand that there is a clear sense in which the protestors 
> > comments involve speech on a matter of public concern. But the 
> > relationship between that matter of public concern and the family 
> > whose son has died and is being buried is pretty attenuated. If the 
> > protestors just said "John Doe should rot in Hell," that 
> would not be 
> > a matter of public concern. Does adding "Because we think 
> the U.S. is 
> > immoral, John Doe should rot in Hell" change the statement 
> enough to 
> > make a difference. (By analogy, if I call Eugene up at 3:00 am each 
> > morning to tell him to vote for Hillary Clinton, should it 
> be harder 
> > for courts to hold me liable for harassment because my 
> statements are 
> > a matter of public concern -- indeed they are pure 
> political speech.)
> > 
> > I guess what I am asking is whether the impropriety and 
> irrelevance of 
> > the circumstance should influence our conclusion as to 
> whether what is 
> > being said is a matter of public concern. If these 
> protestors show up 
> > at the funeral of any citizen with similar signs and argue 
> that it is 
> > good whenever any American dies because our country does 
> not hate gay 
> > people enough, should that alter the analysis? Isn't there a sense 
> > that these people are just using the emotional pain they 
> cause and the 
> > anger generated by their outrageous activities to gain 
> attention for 
> > their message?
> > 
> > Should speakers be allowed to use the distress caused to 
> patients at 
> > hospitals or mourners at funerals as a way of amplifying 
> their largely 
> > unrelated speech "on matters of public concern"?
> > 
> > Alan Brownstein
> > 
> > 
> > 
> > 
> > 
> > -----Original Message-----
> > From: religionlaw-bounces at lists.ucla.edu
> > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, 
> > Eugene
> > Sent: Thursday, November 01, 2007 1:34 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: IIED and vagueness
> > 
> > 	(1)  How does Hustler teach that IIED is a viable tort, 
> as applied to 
> > otherwise protected speech (or at least otherwise protected 
> speech on 
> > matters of public concern).
> > True, it didn't hold that IIED is impermissible as to otherwise 
> > protected speech -- but did it ever hold that it is viable 
> as to such 
> > speech?
> > 
> > 	(2)  Defamation requires that a statement be factually false.
> > That's sometimes not easy to define, and often not easy to 
> tell, but 
> > it's much clearer than an "outrageousness" standard.
> > 
> > 	(3)  I say it again:  The Court has repeatedly held 
> that the lower 
> > scrutiny applicable to time, place, and manner restrictions is 
> > applicable only to *content-neutral* time, place, and manner 
> > restrictions.
> > 
> > 	Eugene
> > 
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