Cert. granted in Snyder v. Phelps.

Volokh, Eugene VOLOKH at law.ucla.edu
Wed Mar 10 12:08:25 PST 2010


        I should think that I'd be extremely distressed to see an article in a magazine -- even a clearly non-factual article -- that talked about my supposed sexual encounter with my mother, however fictional the encounter would clearly be.  The jury found that Falwell was indeed seriously distressed, and I can't say such a conclusion is unreasonable.

        I also don't quite see what it means to say that defamation "is not solely about the speech."  No speech restriction is solely about the speech; all speech restrictions punish speech because they see the speech as causing some harm, directly or indirectly.  But what makes defamation law permissible is that it applies to a category of speech that is generally seen as being of no or very low value -- false statements of fact, especially ones said with the requisite mens rea.  (I stress just the low value of the speech, and not its supposedly great harm, because statements that offend someone by putting him in a false light, see Time v. Hill and Cantrell v. Forest City Publishing, are restrictable under the same standards.  But in any event, the falsity of the statement is necessary for liability to be constitutionally permissible under this exception, whether or not such falsity is generally sufficient.)

        I can understand arguments that there should be a special First Amendment exception for funerals, or for certain kinds of speech about a person who has recently died, even if the speech isn't near a funeral (again, recall that this case involved speech on a Web site as well), though I'd like to know more about the proposed scope of the exception and the specific justification for the exception.  But the defamation analogy doesn't work here, I think, just as the Ward v. Rock Against Racism analogy doesn't work.

        Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-
> bounces at lists.ucla.edu] On Behalf Of hamilton02 at aol.com
> Sent: Wednesday, March 10, 2010 12:01 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Cert. granted in Snyder v. Phelps.
>
> I think the argument for liability in Hustler was considerably weaker.   What actual
> harm did Falwell experience?   Nobody reading Hustler could have expected the
> piece was factual. Different set of parameters
>
> I also think that the doctrine of defamation is not solely about the speech but also
> about the value in protecting reputations related to one's livelihood.  Perhaps
> Eugene is suggesting these cases can be decided on speech category and
> characteristics without reference to context or balancing against government
> interest?  I don't see how and I  think the government has a compelling interest in
> protecting people from intentional torts when they are in a weakened state as one
> is with the death of a family member or comrade.  Funerals are special
>
> Marci
> Sent from my Verizon Wireless BlackBerry
>
> -----Original Message-----
> From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> Date: Wed, 10 Mar 2010 11:20:31
> To: 'Law & Religion issues for Law Academics'<religionlaw at lists.ucla.edu>
> Subject: RE: Cert. granted in Snyder v. Phelps.
>
>     I sympathize with the sentiment in favor of liability here (as I did in Hustler v.
> Falwell), though I ultimately disagree with it.
>
>     But I would hope that arguments for liability could be made without too much
> deforming of existing doctrine.  The Rock Against Racism cases are expressly
> focused on *content-neutral* restrictions that are aimed at effects of the speech
> caused by things other than its content (e.g., noise).  Whatever might be the
> result here, Rock Against Racism can be of no help.
>
>     Likewise, defamation liability is premised on the assertion that false statements
> of fact lack constitutional value (Gertz).  But that very paragraph in Gertz starts
> this way:  "We begin with the common ground.  Under the First Amendment there
> is no such thing as a false idea.  However pernicious an opinion may seem, we
> depend for its correction not on the conscience of judges and juries but on the
> competition of other ideas."  Whatever limits one might urge on this principle
> based on the supposedly special status of funerals, and speech that is about the
> recently deceased (recall that in this case the liability was based partly on the
> speech on the Web site, so it isn't even limited to speech near a funeral),
> defamation liability is not a helpful analogy here.
>
>     Eugene
>
> > -----Original Message-----
> > From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-
> > bounces at lists.ucla.edu] On Behalf Of hamilton02 at aol.com
> > Sent: Wednesday, March 10, 2010 11:14 AM
> > To: Law & Religion issues for Law Academics
> > Subject: Re: Cert. granted in Snyder v. Phelps.
> >
> > The more I think about twos the less I am inclined to agree with Eugene on this
> > one
> > I don't think Skokie is an apt analogy because the speech there was not directed
> > at any one person or persons.  Nor was it intended to disrupt or impact one of
> > life's most sacred and solemn events.  The speakers have chosen funerals as
> > their targets to improve tje effectiveness of their essay
> > This is more like defamation or perhaps rock against racism.  You have a right
> to
> > speak but no right to optimal delivery or harming others intentionally.
> > Marci
> > Sent from my Verizon Wireless BlackBerry
> >
> > -----Original Message-----
> > From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> > Date: Wed, 10 Mar 2010 10:57:22
> > To: 'Law & Religion issues for Law Academics'<religionlaw at lists.ucla.edu>
> > Subject: RE: Cert. granted in Snyder v. Phelps.
> >
> >     I take it that the analogy would have been disruption by sound:  The
> > government is certainly entitled to restrict speech that interferes with others'
> > speech (or other matters) because of the noise that it creates, and many such
> > restrictions are content-neutral.  The disruption there is unrelated to the content
> of
> > the speech, and consists simply of the distraction created by the sound, and in
> > extreme cases the inability to hear the other sounds.
> >
> >     But I agree that in the absence of loud noise (Eric asked whether there was
> > such noise that could be heard from the funeral, but I think there wasn't), there
> is
> > no analogy:  The alleged disruption did not involve the content-neutral
> distraction
> > caused by the sound, but rather the offense caused by the content of the
> speech.
> > That makes the restriction unconstitutional, though punishment of people
> > ("constituents of an institution" or otherwise) for shouting down a speaker
> > generally would be constitutional.
> >
> >     Eugene
> >
> > > -----Original Message-----
> > > From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-
> > > bounces at lists.ucla.edu] On Behalf Of Steve Sanders
> > > Sent: Wednesday, March 10, 2010 12:45 PM
> > > To: 'Law & Religion issues for Law Academics'
> > > Subject: RE: Cert. granted in Snyder v. Phelps.
> > >
> > > I'm scratching my head at Eric's analogy; perhaps he could elaborate?  On
> > > the one hand, we have constituents of an institution disrupting (however
> > > inappropriately) an institutional ceremony to protest an institutional
> > > policy.  On the other hand, we have outsiders directing a crude and
> > > emotionally disturbing message toward a private religious service.  The two
> > > situations are analogous how....?
> > >
> > > > -----Original Message-----
> > > > From: religionlaw-bounces at lists.ucla.edu
> > > > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Eric Rassbach
> > > > Sent: Wednesday, March 10, 2010 10:01 AM
> > > > To: Law & Religion issues for Law Academics
> > > > Subject: RE: Cert. granted in Snyder v. Phelps.
> > > >
> > > >
> > > > 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?
> > > >
> > > >
> > > >
> > > > PLEASE NOTE NEW ADDRESS
> > > >
> > > > Eric Rassbach
> > > > National Litigation Director
> > > > The Becket Fund for Religious Liberty
> > > > 3000 K St. NW, Suite 220
> > > > Washington, DC 20007
> > > > USA
> > > > +1.202.349.7214 (tel.)
> > > > +1.202.955.0090 (fax)
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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?
> > > >
> > > >     Eugene
> > > >
> > > > 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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