Cert. granted in Snyder v. Phelps.
Volokh, Eugene
VOLOKH at law.ucla.edu
Tue Mar 9 11:36:05 PST 2010
I've thought some about the problem, and my view is that there is a substantial difference between speech that is said just to a particular person who one is sure is not interested in hearing the message, and speech that is said to a broader group that might well include willing listeners. The former speech is likely to have at most modest value, at least to the listener; the latter speech might have considerably more value. That's a rough cut, and there might be a different result as to, for instance, speech to political candidates or political officials (see, e.g., the U.S. v. Popa telephone harassment case from the D.C. Circuit several years ago). And there might be some contexts where the listener would have to say no, and the speaker would thus get one bite at the apple, rather than having liability be imposed even for the first approach on the theory that the speaker must have known the listener was uninterested. But I think some such distinction is necessary, and is in fact doing the work here.
One reason I think so flows from playing out this hypothetical in other contexts. Say, for instance, that union members call strikebreakers to tell them what scum the strikebreakers are; I'm pretty sure that this would rightly be restrictable under telephone harassment statutes, at least after the recipients say "stop calling me" and perhaps even before. Cf. Rowan v. U.S. Post Office Dep't, upholding householders' powers to stop further mailings to their homes. But I take it that the same speech said on the picket line would be protected. The difference, I think, is that at least some people who see the speech might be willing listeners (even if many of the target audience are not). Barring the speech to protect the unwilling listeners would interfere with speech to the willing listeners; barring telephone harassment would not, precisely because it is heard just by the unwilling listener.
The same is true even for speech that isn't particularly offensive because of its content. If someone calls to tell me to repent and accept Jesus, and I tell him to stop calling me, I think the law can give my request legally binding effect (again, see Rowan). But billboards and demonstrations to that effect must be protected, even if I can't avoid seeing the message.
Perhaps I'm wrong here; but I do think that Rowan supports such a distinction, and that the distinction is the best defense both for Rowan and for telephone harassment law. Justice Brennan's FCC v. Pacifica dissent likewise supports such a distinction: "In Rowan, the Court upheld a statute, permitting householders to require that mail advertisers stop sending them lewd or offensive materials and remove their names from mailing lists. Unlike the situation here, householders who wished to receive the sender's communications were not prevented from doing so." Of course, the majority took a different view, but only limited to vulgarities; I would think that even given Pacifica, speech on the radio would be much more protected against listener vetoes than telephone calls, precisely because giving a listener such a veto would interfere with speech to "[listeners] who wished to receive the [speaker's] communications."
This leaves the question whether the speech in Snyder might still fit inside the "said just to a particular person" category, perhaps expanded to include all the people who are going to the funeral. I don't think so; while those might have been a special target of both the Web site and the demonstration 1000 feet from the funeral, the speech there seemed likely to also be seen by other listeners who are potentially willing to receive it, and intended to be seen by such listeners.
Eugene
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Brownstein, Alan
Sent: Tuesday, March 09, 2010 9:44 AM
To: Law & Religion issues for Law Academics
Subject: RE: Cert. granted in Snyder v. Phelps.
Suppose someone called the grieving father on the phone and told him how happy the caller was to learn that his son was dead because that demonstrated G-d's anger over United States tolerance of homosexuality etc. Would that be actionable as IIED or, alternatively, telephone harassment? Either action would necessarily be content-based. Would it make any difference if the caller notified the press that they were placing such calls and received media attention for doing so?
Alan Brownstein
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marc Stern
Sent: Monday, March 08, 2010 12:40 PM
To: Law & Religion issues for Law Academics
Subject: RE: Cert. granted in Snyder v. Phelps.
Aren't we running issues together? The question of whether liability attaches for picketing at a funeral (assuming the statute creates a tort right of action)is different than the question of whether the First Amendment allows damages for later comments no matter how offensive on the internet.
Second, the invasion of privacy here raises free speech issues which have been controversial since Time v Hill,which is whether a right to privacy exists in people who are ,voluntarily or not, in the public eye.
Third, the question outrageous conduct may be a facially neutral rule,but inevitably in practice it involves subjective content based judgments. Would a jury have found that Snyder's' right to be free of outrageous conduct was violated by pickets bearing signs blaming Cheney for their son's death? if not,then isn't viewpoint discrimination inherent in the tort?
I really don't know how this case should be decided,but it seems more complicated than the discussion so far.The case also should raises the question of whether,and if and if so when, bruised feeling ought to count for much in the context of regulating public debate.
Marc Stern
________________________________
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Monday, March 08, 2010 1:43 PM
To: Law & Religion issues for Law Academics
Subject: Re: Cert. granted in Snyder v. Phelps.
The state could regulate all picketing by positive law such as a statute or a regulation, so long as it were content neutral, right? But can't use an established tort to accomplish the same thing in a much smaller set of cases? Is that your point Eugene?
What is being regulated by the tort: outrageous invasion of privacy. Isn't that content neutral?
Does a secondary effects analysis play here at all? The tort isn't targeting speech per se, nor the content of the speech in terms of the topic -- just the deleterious effects of it in a very limited circumstance.
On another plane, should the Constitution protect this sort of conduct at all? And if not, is the distinction between a tort based claim used as a regulation and a legislative enactment or regulatory rule sufficiently meaningful to justify different results?
Steve
On Mon, Mar 8, 2010 at 1:34 PM, Volokh, Eugene <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>> wrote:
My fear is that the Justices might just think the decision below is wrong; the cert petition only alleged a split with a Sixth Circuit case that upheld a content-neutral funeral picketing ordinance, which (as Chip implicitly suggests) is quite different from the content-based decision in this case.
Nonetheless, there is a good deal of tension in lower court cases as to whether the IIED tort is unconstitutional only when the claim is brought by a public figure based on speech on matters of public concern, or also when it's brought by a private figure. I'm not sure that there's a square split among circuit cases and state supreme court cases, but I think there is plenty of disagreement among appellate cases generally, and possibly a square split that the clerk found, even if the petition didn't allege it.
Eugene
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu> [mailto:religionlaw-<mailto:religionlaw->
> bounces at lists.ucla.edu<mailto:bounces at lists.ucla.edu>] On Behalf Of Ira (Chip) Lupu
> Sent: Monday, March 08, 2010 10:27 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Cert. granted in Snyder v. Phelps.
>
> The 4th Circuit held, on First Amendment grounds, that the state could not attach
> tort liability (intentional infliction of emotional distress, intrusion upon seclusion,
> and civil conspiracy) to the protests engaged in by Phelps and others near the
> funeral of the deceased soldier, or to the later-posted comments on Phelps
> website. Is there a Circuit split on cases of this sort? I am wondering what led
> four (or more) Justices to vote for a cert grant in this case (especially in light of
> what seems to be the well-recognized state power to create content-neutral and
> viewpoint-neutral regulations about picketing in close proximity to a funeral
> service).
>
>
> Ira C. Lupu
> F. Elwood & Eleanor Davis Professor of Law
> George Washington University Law School
> 2000 H St., NW
> Washington, DC 20052
> (202)994-7053
> My SSRN papers are here:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
>
>
> ---- Original message ----
> >Date: Mon, 8 Mar 2010 08:14:39 -0800 (PST)
> >From: religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu> (on behalf of Jeffrey Shulman
> <jeffreyshulman at yahoo.com<mailto:jeffreyshulman at yahoo.com>>)
> >Subject: Cert. granted in Snyder v. Phelps.
> >To: religionlaw at lists.ucla.edu<mailto:religionlaw at lists.ucla.edu>
> >
> > Though not framed by the Court as raising a question
> > of religious liberty, this case will be of interest
> > to those concerned with issues related`to religious
> > speech. From ScotusBlog: "The Supreme Court,
> > taking on the emotionally charged issue of picketing
> > protests at the funerals of soldiers killed in
> > wartime, agreed Monday to consider reinstating a $5
> > million damages verdict against a Kansas preacher
> > and his anti-gay crusade. . . . The funeral
> > picketing case (Snyder v. Phelps, et al., 09-751)
> > focuses on a significant question of First Amendment
> > law: the degree of constitutional protection given
> > to private remarks made about a private person,
> > occurring in a largely private setting. The family
> > of the dead soldier had won a verdict before a jury,
> > but that was overturned by the Fourth Circuit Court,
> > finding that the signs displayed at the funeral in
> > western Maryland and later comments on an anti-gay
> > website were protected speech. The petition for
> > review seeks the Court's protection for families
> > attending a funeral from "unwanted" remarks or
> > displays by protesters."
> >
> > Jeffrey Shulman
> >
> > Jeffrey Shulman
> > Associate Professor
> > Legal Research and Writing
> > Georgetown University Law Center
> >________________
> >_______________________________________________
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--
Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc.
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