Cert. granted in Snyder v. Phelps.

[Brownstein, Alan]

	As always, Eugene raises good points and asks good questions. He is correct that I would not consider speech expressed on a web site to be covered by my analysis.

	As to the question of whether it is possible that some attendees might be open to the protestor's message, a court is going to have to reach some conclusion about the social reality of the situation. In Frisby v. Shultz, for example, the Court concluded that residential picketers "generally do not seek to disseminate a message to the general public, but to intrude upon the targeted resident and to do so in an especially offensive way." Perhaps a similar conclusion about the social reality of the situation might apply to picketers at a funeral. 

	The Court went on to say in Frisby that "even if some such picketers have a broader communicative purpose, their activity nonetheless inherently and offensively intrudes on residential privacy." I take that language to means that the Court will balance what it believes is the picketers' relatively limited interest in communicating to the general public against the egregious and offensive means they employ in targeting homeowners (in Frisby) or mourners at a funeral (in this case) in order to communicate that public message.

	Of course, Frisby involves a content-neutral speech regulation, not a content-based penalty. Justifying civil liability based on the content of a speaker's message raises more serious free speech concerns. But Frisby involves a content-neutral regulation of speech that almost always communicates a negative message. (Not too many people picket in front of someone's home to express compliments to the homeowner.) Perhaps there is less analytic distance in these cases between content-based and content-neutral regulations than is true in other cases involving generic time, place, and manner regulations.

Alan Brownstein

	



-----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 9:25 AM
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?

	Eugene