Restrictions on offensive speech

[Volokh, Eugene]

1)  Rowan, it seems to me, upheld the law precisely because a person
could use the law to block further transmissions of *any* speech,
whether sexually pandering or not.  "Both the absoluteness of the
citizen's right under 4009 and its finality are essential; what may not
be provocative to one person may well be to another. In operative effect
the power of the householder under the statute is unlimited; he may
prohibit the mailing of a dry goods catalog because he objects to the
contents-or indeed the text of the language touting the merchandise.
Congress provided this sweeping power not only to protect privacy but to
avoid possible constitutional questions that might arise from vesting
the power to make any discretionary evaluation of the material in a
governmental official. In effect, Congress has erected a wall-or more
accurately permits a citizen to erect a wall-that no advertiser may
penetrate without his acquiescence."  "We therefore categorically reject
the argument that a vendor has a right under the Constitution or
otherwise to send unwanted material into the home of another. If this
prohibition operates to impede the flow of even valid ideas, the answer
is that no one has a right to press even 'good' ideas on an unwilling
recipient."

2)  Also, Rowan did uphold "punishment for continuing contact just
because the the recipient asks not not be contacted again."  Once the
recipient informed the Post Office that he no longer wanted to be
contacted, and the Post Office passed the demand on to the mailer, the
mailer is barred from continue to send the recipient material.  If the
mailer violates the bar, the Post Office can get a court order, and
subsequent violations would be criminally punishable as contempt.

3)  Telephone harassment laws vary; and I'm not sure that they generally
bar calls at 3 am as such, as opposed to repeated calls at 3 am, or
repeated calls at any time that the recipient said are unwanted.  I
agree that many are in some measure content-based; I'm troubled by that
to some extent, but Alan's example of calling me at 3 am each day to
tell me something would be punishable even with a content-neutral law.

4)  Alan says that the speaker's link here between his message and the
audience is "irrational," and I agree.  But surely First Amendment
protection cannot turn on the "rationality" of the speaker's theories.
I think it's irrational to believe that there's a God who'll damn people
to Hell for not believing in him, or for getting abortions; but surely
people are entitled to make such statements in public places, just as
they are entitled to say that shoppers are behaving badly by patronizing
an allegedly racist store (an example of a more rational theory).
Likewise, the law relating to funeral protests shouldn't turn on whether
the criticism of the dead person is rational (e.g., protesting outside
the funeral of a fugitive Nazi) or irrational.

5)  As to "tormenting patients in hospitals," Alan, would you likewise
uphold a ban on saying offensive things about abortions outside abortion
clinics -- not just "trying to enter a medical clinic," but simply
standing outside on the sidewalk and expressing such views?  Or is the
difference that there the speaker's "link between his message and the
audience being addressed" is more "rational" (even if you and I may
disagree with it)?
 
Eugene
 
 
Alan Brownstein writes:


	I agree that my vote for Hillary is not a great analogy, but I
think this issue is more complicated than Eugene suggests in this and
some of his prior posts. Rowan does not stand for the proposition that
speech can be punished whenever the person being spoken to asks the
speaker to stop contacting him. It involves the home and sexualy
pandering speech. And it creates a mechanism for avoiding future
communications, not punishment for continuing contact just because the
the recipient asks not not be contacted again. Telephone harassment
statutes apply outside the home (to places of business for example) and
although I don't know of any cases, I would assume that they would apply
to cell phones as well -- which would mean that they apply everywhere.
And as Eugene recognizes, they apply to much more than speech with
sexual content.
	 
	Also, telephone harassment is clearly content based. If I call
Eugene at 3:00 am to tell him his house is on fire, or a friend needs a
ride home and is too intoxicated to drive or any of several other
arguably reasonable messages, it isn't harassment. What makes telephone
calls harassment is precisely the offensiveness of their message in the
context in which it is delivered (e.g. the more neutral or reasonable
the message, the greater the repetition before it would be held to be
harassment and vice versa.)
	 
	Nor do I think a speaker's irrational link between his message
and the audience being addressed (and the identity of the person being
buried) resolves the problem of these protests. Anyone can decide
irrationally that another person's suffering or misfortune reflects
G-d's just punishment for the wrongs of their country, their religious
community, their ethnic group, people who work in the same vocation,
etc. If that's all it takes to justify disrupting funerals or tormenting
patients in hospitals, if that is enough to establish a connection
between speaker and victim, then we are making eveyone fair game for
malicious tormentors. As Mark suggests, the speech here is not
persuasive speech intended to inform or change the behavior of the
mourners (as is true with labor picketing and abortion protests). The
mourners are conscripted against their consent to serve as a backdrop
for the display of the protestors' vile message.
	 
	I also do not think that harassment is limited to private
circumstances. If that were true, nothing protestors might do to
patients trying to enter a medical clinic could ever constitute
harassment. Publicly humiliating a person, following them in public to
express your contempt for their rleigious beliefs, job, political
positions, decision to have an abortion etc. can constitute harassment.
It may be easier to establish harassment if it is directed at a person's
home, but that does not suggest that it can never occur in a public
venue.
	 
	More to say, but classes to teach.
	 
	Alan Brownstein

________________________________

	From: religionlaw-bounces at lists.ucla.edu on behalf of Volokh,
Eugene
	Sent: Thu 11/1/2007 9:34 PM
	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