Speech and conduct

[Steven Jamar]

isn't this a case of private plaintiffs?  Do you need to show actual
malice in private libel?  I don't think so, and it is still
constitutional.

Steve


On 11/3/07, Bezanson, Randall P <randy-bezanson at uiowa.edu> wrote:
> 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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-- 
Prof. Steven Jamar
Howard University School of Law