Cert. granted in Snyder v. Phelps.
aebrownstein at ucdavis.edu
Tue Mar 9 14:26:38 PST 2010
By egregiously hurtful, I intended to suggest expressive conduct that is hurtful in ways that exceed the more common discomfort people experience when they are confronted with offensive and disturbing speech in a public venue. As I recall, the Nazi march in Skokie was through the main public streets of the town. I don't doubt that this conduct caused distress and anger to the Jewish residents of Skokie. But I believe that Nazi pickets rejoicing in the death of Jews and insulting the mourners at Jewish funerals would cause a special kind of harm to people who are uniquely vulnerable at the time.
Chip is right that public speech targeting particular victims is protected expression. Targeting in private may be proscribed (as in telephone harassment laws.) Restrictions on targeting in public are harder to justify. The Phelps case involves targeting in public that is egregiously hurtful because of the place and time that it occurs and the vulnerability of its victims. It turns at least in part on the idea that there is something different about funerals as activities, cemeteries as locations, and mourners as people and that free speech doctrine can take that difference into account. If that idea is mistaken, and speech targeting mourners at a funeral is not considered especially egregious expressive conduct, than the case is more easily resolved.
As an aside, the Phelps crew has added Jews to the groups it hates. Recent protests take place outside synagogues and Jewish organizations. It is hard to argue that they are not targeting Jews in doing so.
Chip Lupu wrote,
The penultimate sentence of Alan's message ("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") evokes for me the planned march by the American Nazi party in Skokie, Illinois in the 1970's. But in that case, there was reason to believe that the Nazi Party really wanted to reach (and frighten) the Jews of Skokie as well as reach others. In Snyder, is there any reason to think that Phelps and his crew wanted to reach the Snyder family (and other funeral-goers) at all? Perhaps the inclusion by Phelps of anti-Catholic as well as anti-gay messages suggests that the answer is yes.
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
My SSRN papers are here:
---- Original message ----
>Date: Tue, 9 Mar 2010 13:13:32 -0800
>From: religionlaw-bounces at lists.ucla.edu (on behalf of "Brownstein, Alan" <aebrownstein at ucdavis.edu>)
>Subject: RE: Cert. granted in Snyder v. Phelps.
>To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu>
> 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
> Alan Brownstein
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