Of Phelps and Persecution

[Conkle, Daniel O.]

Under Alan's approach, I wonder whether the Nazis could have properly been denied the right to march in Skokie?  Would the proposed Nazi march at least have triggered Alan's balancing analysis, on the ground that the Nazis would have "chosen a location/context/message that targets an audience that will suffer unique and especially hurtful injuries as a result of  the demonstrators expressive activities"?  Cf. Smith v. Collin (1978) (Blackmun, J., dissenting) ("[W]hen citizens assert, not casually but with deep conviction, that the proposed demonstration is scheduled at a place and in a manner that is taunting and overwhelmingly offensive to the citizens of that place, that assertion, uncomfortable though it may be for judges, deserves to be examined.").


Dan Conkle
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Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail conkle at indiana.edu
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From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Brownstein, Alan
Sent: Wednesday, November 07, 2007 1:09 PM
To: Law & Religion issues for Law Academics
Subject: RE: Of Phelps and Persecution

In the overwhelming majority of cases involving demonstrations communicating with the public at large, I would argue that the demonstrators should be free to say what they want, in the location they choose, subject to reasonable content neutral time, place and manner regulations. If the demonstrators choose a particular location because it is likely to attract public attention and the media, they should be protected in their choice. If, however, the demonstrators have chosen a location/context/message that targets an audience that will suffer unique and especially hurtful injuries as a result of  the demonstrators expressive activities, courts should evaluate the harm that the demonstration causes against the free speech rights of the demonstrators. That balance would include the conventional factors that courts consider - the importance of the state's interest, the availability of alternative avenues of communication through which the speakers could express their message to the public without causing so much harm etc. Pursuant to that analysis, the fact that the demonstrators are trying to persuade a particular audience to change their beliefs or behavior and that the injuries their speech may cause is an inescapable consequence of the demonstrators' attempt to fulfill that expressive mission counts in favor of the demonstrators free speech rights.  (That's the anti-abortion protest outside of a clinic example.)

If the demonstrators have chosen a location/context/message that targets an audience that will suffer unique and especially hurtful injuries as a result of  the demonstrators expressive activities and there is no particular reason that furthers free speech values why they should be in that place/ expressing that message/in that context - that is, there is no special reason why they should be directing their message to the public at large to the direct and immediate audience of the mourners at a funeral - then I would assign less weight to those demonstrators free speech claims. If the demonstrators have chosen that location/context/message because the injuries their speech will cause to the targeted audience is what attracts media attention to their message, I would assign less weight to those demonstrators' free speech claims as well. (This is the protests at the soldier's funeral example) In these situations, in my judgment, the demonstrators have plenty of opportunities to communicate their message to the public without causing unique and especially hurtful injuries to a targeted audience. And I do not assign substantial free speech value to their attempt to leverage the harm their speech causes to a targeted audience in order to amplify their message.

But this analysis only comes into play when the location/context/message causes unique and especially hurtful injuries. Under the free speech clause, as I understand it, all protected speech is presumed to have sufficient value to outweigh the normal costs of permitting it to be expressed (offense, attenuated influence on unlawful behavior etc.). It is only when those costs come close to crossing a threshold that puts the question of whether the speech should be protected in doubt, that I would draw a distinction between persuasive speech directed at an audience to change its beliefs and behavior and other speech in context that does not serve core free speech values.

Alan Brownstein

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 06, 2007 8:30 PM
To: Law & Religion issues for Law Academics
Subject: RE: Of Phelps and Persecution

    Alan:  I appreciate your argument, and I sympathize with much of what you say.  Yet it seems to me that many demonstrations -- quite possibly most -- are intended *not* chiefly to persuade people who are at the target location (whether abortion doctors and patients, strike-breakers, people working at city hall or a federal building, and so on), but rather to communicate to the public at large, including those drawn by the media attention created by the targeted demonstration.  Many of these demonstrations also try to influence some of the people at the target location; and even at a funeral, I suppose there might be some mourners who are persuadable (not the deceased's family, surely, but perhaps some coworkers and distant friends).  But the chief purpose is not that.  How would you analyze those sorts of demonstrations?  Thanks,

    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: Saturday, November 03, 2007 7:02 PM
To: Law & Religion issues for Law Academics
Subject: RE: Of Phelps and Persecution
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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