Of Phelps and Persecution

[Brownstein, Alan]

Eugene,
 
I draw a distinction between protests outside clinics providing abortion services (and picketing by labor unions outside a store to change the store's labor policies) and the funeral protests here because the former examples involve speech directed at a specific audience who the speaker is trying to persuade to change his or her behavior -- and the location of the protest is chosen in considerable part because the audience the speaker wants to persuade is at that location (and may be difficult to identify otherwise). I think this goes to the very core of what the first amendment protects -- the speaker's opportunity to inform, or persuade on the merits, the very audience that that he or she is attempting to reach. The location of the speech where the anti-abortion protestors and labor picketers express their message seems to me to be critical to these core free speech purposes. The anti-abortion protestors can explain their protests at a location (outside the clinic) that increases the medical risks of their intended audience and invades women's privacy by a core free speech purpose. This is not a case where we can conclude that the sole purpose of the location of speech is to impose medical costs on women or to invade women's privacy.
 
Of course, one can argue in the clinic providing abortion services context that the protestors' speech rights can be outweighed by compelling privacy and medical health interests. But I have always thought that the justification for restricting speech in this circumstance is that the state's interests are so high, not that the protestors free speech interests were particularly weak.
 
In the funeral context, I don't see anything like the same first amendment foundation. The sole purpose of holding protests at the burial services of dead soldiers is to cause pain to the mourners or to take advantage of their distress to gain exposure for the protestors' message. There is no reason to think that the mourners have any special responsibility for American gay rights policies or any special ability to alter those policies (or even that they support gay rights). There is no reason to think that the mourners will serve in the military. There is no meaningful sense in which these protests can be understood as an attempt to persuade the mourners of the merits of the protestors' arguments. Here the location where the message is expressed maximizes the harm caused by the speech with no corresponding justification for the protest occuring at a burial service as opposed to some other, less inappropriate, public location (perhaps in front of a military recruiting office). 
 
I recognize that the first amendment protects speech that is offensive or hurtful. But sometimes we can conclude from the context in which speech occurs 1. that the speech causes unique distress and injury, 2. that the speech accomplishes virtually nothing of value for first amendment purposes, and 3. because of the narrow circumstances involved, we can restrict speech in this context without undue concern about burdening more speech than necessary. It seems to me that prohibiting speech at burial services of the kind described in my proposed ordinance satisfies all three conditions.
 
What is accomplished by protestors standing outside a cancer ward and telling the family visiting a dying patient in his hospital bed that their loved one deserves to die, that G-d is punishing him because of America's policies about abortion or gay rights or anything else? What is accomplished by communicating that message in that location to that audience other than causing a vulnerable family additional pain?
 
What is accomplished by telling a woman at the burial service of a newborn baby that G-d is punishing the women of America and their babies because of American policy on abortion rights? 
 
I share many of your general concerns, Eugene, about the problems with using IIED to punish speech. But I think this speech in this context can be prohibited. The only question for me is how we can best accomplish that goal while minimizing the risk that other speech is chilled or punished. 
 
The statute I propose is content-based, but it is also very limited in its scope. That is one of the trade-offs between content-neutral and content discriminatory laws. The former is less likely to supress ideas and distort debate and is usually harder to enact. The latter burdens less speech. Usually, that difference supports a content-neutral law. In this case, I think the content-discriminatory law might more effectively serve the state's interests and may be less damaging to free speech values.
 
Alan Brownstein
 
 
 
 

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From: religionlaw-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Sat 11/3/2007 2:14 PM
To: Law & Religion issues for Law Academics
Subject: RE: Of Phelps and Persecution


    Alan:  What if a town enacted an ordinance that prohibited the display of signs or banners that held those who get abortions up to contempt or ridicule (or expressed the message that they deserved to be punished by God) within 1000 feet of an abortion clinic?  Would that be treated the same way as funerals?  Is the difference that protecting the privacy and dignity of mourners a more compelling interest than protecting the privacy and dignity of those who are about to get a difficult medical procedure?  Or is the difference that we think the view that women who get abortions are acting immorally is plausible -- even if we disagree with it, and even if we think it's rude to express it around them -- while the view that people who mourn soldiers should instead recognize that the soldiers' deaths were God's righteous justice is implausible?
 
    Eugene


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	From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Brownstein, Alan
	Sent: Friday, November 02, 2007 11:38 PM
	To: Law & Religion issues for Law Academics
	Subject: RE: Of Phelps and Persecution
	
	
	Picking up on Marci's comment, suppose a town enacted an ordinance that prohibited the display of signs or banners that held the decedent up to contempt or ridicule (or expressed the message that the decedent deserved to die or was unworthy to be mourned) within 1000 feet of a burial service. Something like the law at issue in Boos v. Barry, but with the goal of protecting the privacy and dignity of the service and mourners. It is a content discriminatory law and should be subjected to strict scrutiny. Does the state have a compelling interest in protecting grieving family members and friends so that they can bury their dead in peace and without offensive disturbances?
	 
	Alan Brownstein 
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	From: religionlaw-bounces at lists.ucla.edu on behalf of Hamilton02 at aol.com
	Sent: Fri 11/2/2007 3:24 PM
	To: religionlaw at lists.ucla.edu
	Subject: Re: Of Phelps and Persecution
	
	
	
	Chris Lund has put the cart before the horse here.  Measuring the neutrality of the law according to whether the organizations' assets are exhausted is backward.  Strong impact of a neutral law does not prove by itself that it is not neutral -- it just may prove that the religious entity acted in ways that severely harm others.  It is simply a fact that religious organizations -- just like businesses -- may cause such harm that losing all of their assets even falls short of what they should owe society for what they have done.  Thus, the impact of the law may well prove a lot more about the wrongdoing within the organization than the law's neutrality.  It is not unconstitutional for a religious organization to be put out of business by the operation of neutral, generally applicable laws when the behavior has been as execrable as the behavior is here.
	 
	Now, if the tort law ONLY impacted religious organizations and no secular organizations (like the law banning sacrifice in Lukumi), there might be some argument about neutrality, but I have yet to see the tort law that is directed solely at or works only against religious organizations.
	 
	For what it's worth, the speech issue in my view is limited solely to place analysis.  Those arguing that there is something especially problematic in the delivery of this personal message against a family at this location are very persuasive.  If this group wants to make these points on the apron in front of the Supreme Court or other public place removed from the family's observance, they deserve protection, despite the ugliness of their message.  Doing it in physical proximity of a mourning family observing their religious obligations to their dead is a very different matter.   The First Amendment does not guarantee anyone the optimal location for speech, even when the speech is otherwise highly protected.
	 
	Marci
	 
	 
	Marci A. Hamilton
	Visiting Professor of Public Affairs
	Kathleen and Martin Crane Senior Research Fellow
	Program in Law and Public Affairs
	Woodrow Wilson School
	Princeton University

		The Hare Krishnas and Unification Churches faced similarly devastating verdicts because of IIED and invasion-of-privacy claims brought by private individuals who wanted their destruction, and that reflected how neutral and generally applicable tort rules could combine with jury discretion to be devastingly non-neutral.  If I'm remembering Doug Laycock's Remnants piece right, all of Krishna's land holdings in the United States were put into receivership to secure just one of the judgments.  

	 



	
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