Speech and conduct

[Bezanson, Randall P]

Unless I'm mistaken, I think the constitutional narrow tailoring and
compelling interest ideas are accomplished in public libel cases by the
requirements of actual malice and proven falsity.  In IIED I suppose
those requirements could by analogy be satisfied by a form of specific
intent to inflict serious emotional harm on a particular person(s) and
outrageousness of the conduct/speech, though we don't know because the
Supreme Court has not, to my knowledge, explicitly addressed the
question in what by libel standards would likely be a private libel case
governed by Gertz, not NYT v. Sullivan.

Randy Bezanson

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Saturday, November 03, 2007 1:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Speech and conduct

IIED can be treated just like defamation and not protected by free
speech, though Eugene would not want it treated like that.

Or this can be (properly in my view) viewed as mixed conduct and
speech and regulated by modest extension of time place and manner and
secondary effects doctrines -- easy enough to fashion a narrow rule
for this sort of situation that avoids the serious concerns of
censorship.

Or it can be viewed as purely content-based (improperly in my view)
and upheld under some version of speech strict scrutiny such as
compelling interest, narrowly tailored, ample alternative avenues
availalble.

I am unpersuaded by Eugene's underinclusive argument -- as I was in
R.A.V.

Just as categories of "unprotected speech" are not so pure, neither is
the idea of content nuetrality as simple or absolute or pure as Eugene
wants it to be.

Steve


On 11/3/07, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:
>
>
>     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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-- 
Prof. Steven Jamar
Howard University School of Law
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