IIED and vagueness

[Volokh, Eugene]

	I appreciate Mark's thoughts, but have a few follow-up
questions:

	(1)  Can it really for First Amendment purposes matter that
there are multiple abortions at a clinic -- all of which are being
equally criticized by the speakers -- and only one funeral at a time?

	(2)  What if an abortion protest condemns not just the doctors
and employees, but also patients, e.g., with signs such as "God Hates
Women Who Murder Their Children" or "If You Think Unwanted Pregnancy Is
Hard, Just Imagine What God Has in Store for You If You Murder Your
Baby"?  What if a labor protest condemned employees and shoppers who
crossed the picket line, as some labor protests do?  Would it follow
that then the speech would be protected, thus producing a further
content discrimination between criticism of businesspeople or doctors
(constitutionally protected) and criticism of patients, employees, or
patrons (constitutionally unprotected)?

	(3)  Likewise, can the degree of the mourners' control over
military policy really play a First Amendment role here?  Much public
speech, including offensive speech, aims to affect government policy
only indirectly, through the aggregate of many communications to many
listeners, each of whom can't do much of the policy, but who put
together can do something.  And of course religious advocacy aims to
affect the listeners' religious beliefs even if the beliefs never end up
changing government policy.

	As I've said before, it seems to me that certain content-neutral
restrictions on picketing immediately outside funerals may indeed be
constitutional.  I'm chiefly troubled not by the result, but by the
breadth and vagueness of the legal rule that was applied in this case,
and by the what strike me as improper distinctions that people are
suggesting the law draw.

	Eugene



Mark Scarberry writes:
 
	
	Eugene wrote:
	 
		"Mark:  Would you say that anti-abortion protests at
abortion clinics are likewise 'targeted speech,' and, if offensive
enough in their viewpoint, punishable fighting words?  What about labor
picketing at plants that are being struck?
	 
	"I realize that you might argue that this speech is less
outrageous than funeral picketing -- but for now I'm just focusing on
whether you'd say that there's a difference as to whether they are (1)
targeted and (2) potentially fighting words, both concepts that don't
themselves involve an outrageousness inquiry."
		 
	...
	 
	The examples Eugene gives are less targeted than the funeral
protests. There typically is only one funeral (or at most a few) going
on at once at a particular cemetery, and the protest is targeted at the
loved ones and friends of a single dead soldier. The protests obviously
are not targeted at the cemetery workers; they are focused on causing
distress to a particular family (and friends). 
	 
	Abortion protests target the whole facility, with a focus, in
terms of the animosity expressed, on all of the doctors and other
employees of the clinic. The protest is not targeted at a single patient
or patient's family. Of course a particular encounter between a
protester and a patient or worker outside the clinic may be focused on
that patient or worker, but the overall protest is not. 
	 
	Labor picketing similarly typically is not targeted at a single
person or family but rather at the business and its managers.
	 
	I don't know that it's possible to discuss whether fighting
words are involved without discussing outrageousness. It is largely the
outrage caused by personally targeted speech that potentially makes it
fighting words. Let me say, though, that speech targeting a dead
soldier's family during a funeral is particularly likely to stir up the
very strong violence-inducing emotions that are associated with fighting
words. To the extent that a balancing is involved, of the likelihood of
the stirring up of such strong emotions versus the speaker's need to
engage in targeted speech at that time and place, I'd suggest that labor
picketing and abortion protests both are aimed at those who, if
persuaded, could act directly or relatively directly on the message to
change things in the world. Abortion clinic patients (or would-be
patients) and workers could decide against having, or participating in
the providing of, abortions. Employers might decide to give the workers
the contract they want, and customers, by staying away from the business
that is being picketed, may in a relatively direct way affect the
decision of the business. By contrast, the families of dead soldiers
have no direct say in the military's policy on gays and lesbians. They
have even less ability indirectly to affect such policies than they
would to affect whether we continue our involvement in Iraq -- on that
latter issue they might have an influential voice (though that still
would be much more indirect than the abortion clinic or labor picketing
examples).