Speech and conduct

[Volokh, Eugene]

    I agree with Marci about one thing:  This was indeed outrageous; the
"allegedly" was an inartful way to cover the possibility of IIED
applying to several hypotheticals at once ("If there were a half dozen
people standing on the street corner near the funeral talking to each
other, the attendees to the funeral might be very slightly put off, but
very slightly.  If there were people engaged in labor picketing against
the cemetery's practices, they might think it's mildly disrespectful,
but not remotely 'outrageous.'  If there were people standing with signs
saying 'Our condolences for your and our nation's loss,' the attendees
would likely be pleased, unless they were a very private sort of people,
in which case they might find this a little tacky or annoying.  What
makes the behavior allegedly outrageous infliction of severe emotional
distress (or for that matter an actionable invasion of privacy) is
precisely the speech"), but I'm happy to say that the allegations were
perfectly true here.
 
    But as my hypotheticals show, I think, the IIED liability is based
precisely on *what is said* in this place.  It's possible that a jury
might have found IIED even if it wasn't said at the funeral, but was
said in a local newspaper ad bought the day of the funeral -- I agree
the jury would have been less likely to find IIED there, but the IIED
tort is broad and vague enough that no-one can tell for sure.  But it's
impossible that the jury would have found "outrageousness" if the speech
were at the funeral, but was merely labor picketing, or casual
conversation among a few people gathered on a corner, or the "Our
condolences for your and our nation's loss."
 
    Nor -- returning to the thread -- is it proper to discuss the
location as a "conduct" issue.  The choice of which ordinance to target
is just as much a "speech" factor as the choice of what to say.  It may
be regulable under the Ward standard for content-neutral time, place,
and manner regulations; but this is not such a content-neutral
regulation.  It may be restrictable under strict scrutiny, as Marci
suggests, though I don't think so.  (I think a content-neutral limit on
all picketing in front of a funeral would likely pass muster, by analogy
to Frisby v. Schultz, if it's limited to speech in front of the funeral;
but, as I said, the IIED tort is not such a content-neutral law.)  But
any restriction on this should be judged as the speech restriction that
it is, not as a "conduct" restriction.
 
    Eugene


________________________________

	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
Hamilton02 at aol.com
	Sent: Saturday, November 03, 2007 6:38 AM
	To: religionlaw at lists.ucla.edu
	Subject: Re: Speech and conduct
	
	
	
	I strongly disagree with Eugene here.  It's not the speech per
se, but rather the location of the speech that is outrageous.  And this
speech in its chosen location in particular is not "allegedly"
outrageous, but rather outrageous on every meter known to civilized
individuals.  Death is when families are most vulnerable, desperately
need privacy, and operate in deep communion with their own religious
worldview and faith.  That's why this group has chosen these funerals --
to get the most attention and be the most destructive.  
	 
	Picking up on Alan's point, I don't think there is any question
that there is a compelling interest in keeping these speakers away from
families during the funeral. Another point is that a person only has one
funeral, so a funeral-related restriction is extremely limited in time
and place.   There is no less restrictive means than restricting the
location of such speech vis-a-vis the time and place of the funeral
itself.  
	 
	Marci     
	 
	 
	In a message dated 11/2/2007 8:00:13 P.M. Eastern Daylight Time,
VOLOKH at law.ucla.edu writes:

		What makes the behavior allegedly outrageous
		infliction of severe emotional distress (or for that
matter an
		actionable invasion of privacy) is precisely the speech.
		
		    Eugene
		

	 



	
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