Fighting words and Phelps

Tue Nov 6 06:54:13 PST 2007

  This fact, if true, also wipes out the time, place, and manner
argument for intentional infliction of emotional distress.  If Phelps
was not disturbing the funeral, this is just offensive speech.  The
only distinction from Hustler v. Falwell is that the target is not a
public figure.

  Quoting "Esenberg, Richard" <richard.esenberg at marquette.edu>:

> If the Baltimore Sun report is correct
(http://www.baltimoresun.com/news/local/bal-westboro1031,0,7191706.story?page=2&coll=bal_tab01_layout[1]), 
then the Phelps statements could not be fighting words because the
plaintiff never saw the demonstration at the funeral. He saw it on
television after the fact. If the speech is otherwise unprotected, it
must either be for the reasons suggested by Michael Newsom or by an
exception not for funerals, but for statements that can reasonably be
expected to upset grieving families. Does anyone support
> that?
>
> Rick Esenberg
> Marquette Unioversity Law School
>
>
>
>
> ________________________________________
> From: religionlaw-bounces at lists.ucla.edu 
> [religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene 
> [VOLOKH at law.ucla.edu]
> Sent: Tuesday, November 06, 2007 12:36 AM
> To: Law & Religion issues for Law Academics
> Subject: Fighting words and Phelps
>
>     If Mark is right that the speech here is fighting words, then
indeed
> (1) IIED could be narrowed (if courts accept my view of the
overbreadth
> issue) to unprotected speech, and yet (2) the result would still
lead to
> liability here.  In fact, fighting-words-based IIED liability would
> presumably be allowed even as to public figures under Hustler v.
> Falwell; if recklessly/knowingly false statements of fact are
actionable
> under IIED, why not other unprotected speech?
>
>     Yet I wonder whether the speech here is indeed fighting words,
given
> Cohen, Gooding, and Johnson.  I would think that publicly visible
speech
> that is aimed at a large group of people would indeed be protected
even
> if it's likely to lead people to want to attack the speaker.  That,
I
> take it, is why picket lines with signs referring to "scabs" or
> "traitors" are protected, as are abortion protests that call
abortion
> providers murderers.  Or am I mistaken?
>
>     Eugene
>
>
>
>
> ________________________________
>
>         From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Scarberry,
Mark
>         Sent: Saturday, November 03, 2007 11:41 AM
>         To: Law & Religion issues for Law Academics
>         Subject: RE: The trouble with IIED liability here
>
>
>         I think the speech here simply was not protected by the
First
> Amendment, because it falls within the fighting words exception.
> Assuming that is true (or that this speech is unprotected under
some
> other exception analogous to fighting words), is the application of
the
> First Amendment an issue initially for the jury? If I understand
the law
> correctly, the trial court (and reviewing courts) would not be
bound by
> a jury finding on the "constitutional facts" that take the speech
out of
> the protection of the First Amendment. I suppose it's possible,
though,
> that the jury ought to decide those facts first, thus giving the
> defendant two bites at the apple. (Any 7th Amendment issue here on
> re-examination of facts found by a jury?)
>
>         If the issue is for the court, then Eugene's criticism of
the
> jury instructions and of use of the tort of IIED may lose its
force. The
> jury will only be allowed to find for the plaintiff under the tort
if
> the court determines that the First Amendment does not preclude
> liability. Or would the jury instructions still need to be
tailored?
> That is, would there still be a residual requirement that damages
be
> awarded based only on the features of the speech that took it out
of
> First Amendment protection?
>
>         Mark Scarberry
>         Pepperdine
>
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>
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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