Of Phelps and Persecution

[Conkle, Daniel O.]

Thanks as always to Alan for his thoughtful posts, including his response to my question.  I'm not entirely sure, but I could very well be persuaded to adopt Alan's approach.  In any event, I agree that the Skokie situation can be distinguished on the grounds that Alan proposes.  That said, Blackmun's suggestive comment in Smith v. Collin, which I quoted before (see below), suggests that Alan's approach - like any context-specific, open-ended balancing analysis - creates questions of degree and therefore creates risks of unduly restrictive applications that are not presented by stronger, brighter-line rules.

Dan Conkle
*******************************************
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 6:29 PM
To: Law & Religion issues for Law Academics
Subject: RE: Of Phelps and Persecution

Great question, Dan. And I actually gave some thought to Skokie when I wrote my post. I would argue that the Skokie situation does not fit my framework.  In Skokie, Jews (some of whom were concentration camp survivors) were part of the general population of a community. They were part of the public at large that the Nazis were addressing with their march through the city's streets.  Holding a march expressing a racist message down the main streets of a community with a significant black population or holding a march expressing an anti-Semitic message in a town where many Jews live  does not present a sufficiently focused location/context/message to trigger my balancing analysis. Similarly, if Phelps and his crowd hold a march through the main streets of a town near a military base or pro-life protestors hold a march through a town where many women have had an abortion, I don't think my balancing analysis would apply either.

I think a protest adjacent to and during the burial service of a soldier and a ring of protestors outside a clinic a patient is entering for medical services can be distinguished from a march down the main public streets of a community at a time of no particular significance that is deeply offensive to many of the people who live in that community - even if the town was selected as the site for the march precisely because of the demographics of its population.  The message would be offensive to the part of the community it insults wherever it was expressed. And I don't think the feelings associated with "Not in my town" can be equated with "Not at the burial service of my son."

Basically, I think a protest by Nazis outside the cemetery that disrupts the burial services of concentration camp survivors is different than the Nazis march through the main streets of Skokie. Do you disagree and believe that there isn't any meaningful difference between these two events for free speech purposes, Dan? (Needless to say, the Nazis are fascist scum in either case, but that doesn't decide the constitutional question.)

Alan Brownstein





From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Conkle, Daniel O.
Sent: Wednesday, November 07, 2007 2:32 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Of Phelps and Persecution

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
*******************************************
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
*******************************************

________________________________
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
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