Cert. granted in Snyder v. Phelps.

Eric Rassbach erassbach at becketfund.org
Wed Mar 10 10:01:08 PST 2010

I am sorry if this fact has already been circulated on the list, but was the protest at issue loud enough to be heard at the location of, and during, the funeral ceremony?  If so, would this fact pattern be analogous to disruption of a public university graduation ceremony by students protesting tuition hikes?  


Eric Rassbach
National Litigation Director
The Becket Fund for Religious Liberty
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-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, March 10, 2010 12:25 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Cert. granted in Snyder v. Phelps.

	I appreciate Alan's points (though I probably disagree with him on the bottom line), and they might have been relevant to picketing in front of the funeral.  But here, as Alan's first sentence acknowledges, liability was based partly on the Web site and partly on speech a thousand feet from the funeral.  I take it that Alan agrees that the first class of speech wouldn't be covered by his theory.

	But beyond this, let me ask:  I take it that some of the attendees at the funeral -- for instance, the decedent's comrades in arms -- might indeed be open to the proposition that God disapproves of America's tolerance for homosexuality, and that God rightly retaliates against America because of that.  Those are certainly not my views, but I can certainly imagine a considerable number of people, including fellow soldiers, having them (though only a tiny fraction would actually express them on the occasion of the funeral).  Presumably some of those fellow soldiers, even if upset by the speech, might thus be "potentially willing" to hear it (especially since a funeral tends to draw many attendees, and not just a very small circle), just as some of the residents of Skokie might have been anti-Semites even while many others were Jews.  To what extent should that be relevant under Alan's analysis?


Alan Brownstein writes:

> >   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.
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