Of Phelps and Persecution

[Brownstein, Alan]

I think my answer about Skokie would apply to Kiryas Joel as well,
David.

 

 Both you and Dan are right that  "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."  We are always going to confront these
difficult choices. On the one hand, if we are limited to strong,
bright-line rules, we will not be able to restrict speech in some
situations where we are confident that the harm caused by the speech far
outweighs its utility for first amendment purposes. On the other hand,
if we make exceptions to bright-line rules or adopt more flexible
standards of review to allow states to restrict speech in those
situations, we raise legitimate concerns about "vagueness and/or
manipulability." 

 

It may also be true, however, that by identifying carefully limited, and
effectively isolated, situations in which speech can be restricted, we
make it easier for courts to protect speech rigorously everywhere else.
The argument that all speech in all contexts receives the same level of
protection risks a political/judicial/cultural response that undermines
the protection speech receives across the board. But that argument
presupposes that we can identify such carefully limited and effectively
isolated situations. I read your comment and Dan's to ask, quite
appropriately, whether the distinctions I suggest can do that. I think
so, but I certainly concede that these distinctions are not without
risk.

 

Alan Brownstein

 

 

 

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of David Cruz
Sent: Friday, November 09, 2007 8:16 AM
To: Law & Religion issues for Law Academics
Subject: RE: Of Phelps and Persecution

 

Alan suggests that "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."  What if
it's the Village of Kiryas Joel?  I ask not to be facetious but to
explore the extent of the context-specificity (and thus perhaps
vagueness and/or manipulability, to elaborate upon Dan Conkle's
concerns) of the considerations upon which application vel non of Alan's
proposed balancing test would turn.

 

David B. Cruz

Professor of Law

University of Southern California Gould School of Law

Los Angeles, CA 90089-0071

U.S.A.

 

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Brownstein,
Alan
Sent: Wednesday, November 07, 2007 3:29 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

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