Cert. granted in Snyder v. Phelps.
aebrownstein at ucdavis.edu
Tue Mar 9 13:13:32 PST 2010
Eugene notes an important distinction (between targeted speech and public speech) and I agree with a lot of what he says. But I still find this case to be a difficult one that lies somewhere between the dissent in Pacifica and the situation in Rowan. If making sure that people who are potentially willing to receive the speaker's message have an opportunity to do so is our primary concern, restricting picketing at a funeral allows the speaker the freedom to communicate his message everywhere else in the city through any medium that is available to communicate public messages. The choice of the funeral as the side for expression does not maximize the likelihood that the speech will be heard by potentially willing listeners. It probably does the reverse. It does maximize the offense and injury the speech will cause to the targeted audience.
I think that bans on public broadcasting as in Pacifica are far more restrictive of speech to a willing audience than restricting speech at funerals. I agree with Eugene that speech on a labor picket line should be more protected than telephone calls to strikebreakers, but that is in part because the picket line directly addresses the people the union is trying to reach for legitimate, persuasive reasons - those who do business with the targeted company. "I'm glad your strikebreaker son is dead" signs at a strikebreaker's funeral would be a harder case for me.
Although there are important limiting facts in this case that distinguish it from a clearer "picketing at a funeral case," at its core this case raises the question of whether speakers can choose a location for their offensive speech that targets their victims in an egregiously hurtful way when alternative sites for communicating their message to the public are equally accessible and at least as likely to be heard by potentially willing listeners. I'm still thinking about the answer to that question.
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, March 09, 2010 11:36 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Cert. granted in Snyder v. Phelps.
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.
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