Cert. granted in Snyder v. Phelps.

[Hamilton02 at aol.com]

Steve has said much more eloquently what I was trying to say to  Eugene.  I 
agree with Steve that the categories drawn by Eugene  are not as hard and 
fast as he has depicted them.   
 
This case is teed up to be one of those cases where law professors are  
"shocked" by the reasoning, but only because of unjustified assumptions about  
the rigidity and portent of previous precedents.  The bigger picture here  
is that tort law typically protects the vulnerable and funerals are a  
paradigmatic situation where the one being targeted by the speaker is in a  
vulnerable position deserving societal solicitude and protection.  (To  Marc's 
point that there is too slippery of a slope here because if you include  
funerals you have to include marriages --  it seems to me that the  reasoning 
assumes funerals are special because of their religious  content. From the 
standpoint of tort law, I disagree.  Every person  has to face funerals and death 
regardless of creed and it is uniformly a trying  time; in contrast, 
celebrations do not put the individual in the  position of vulnerability that 
facing death does).
 
Marci
 
 
 
 
In a message dated 3/10/2010 4:31:47 P.M. Eastern Standard Time,  
stevenjamar at gmail.com writes:

Under  international law, freedom of speech can be limited when it impinges 
the  rights of others provided the limitations are part of the law of the 
country.  Surely that is sound principle that is in fact at least at part at 
work  in many 1st Amendment speech cases that would otherwise be even more  
incoherent.  


There are interests other than defamation and triggers other than  falsity, 
regardless of Eugene's fondness for staying so close to certain  precedents 
and certain key factors or rules.


As we step into uncharted territory, I think the court has time and again  
demonstrated a willingness to find a new principle to justify its decision.  
So even if Eugene's reading of prior cases is correct (I think it is  
correct as far as it goes, though a bit too cramped), I don't think that  
determines the case.  Nor should it.


I think hate speech impinges on the rights of others in much the same way  
as defamation does and furthermore has societal dimensions beyond the  
individual.  That is, the speech of some is limited by the rights of  others and 
the interests of society.  We may treat hate speech as  protected speech, 
but it is not so protected that we cannot recognize that a  hate motivation 
proven by hate speech can enhance a criminal penalty.


Here, the disruption is invasive and the content of the speech is not the  
target of the tort -- the target of the tort is the right of privacy of the  
people attending the funeral.  That is an established, protected right.  
The content of the words, as in the hate speech category, affect the  result, 
but are not the essence of the invasion.


If we look at what is at stake for first amendment speech principles, and  
the other interests at stake, I think it plausible that the court will see  
this as not bound by Eugene's reading of precedent, but rather as yet 
another  case of a different stripe with a different calculus applied.


As Eugene has repeatedly opined, the current free speech jurisprudence is  
largely based on categorizing the speech -- but that is not all there is to  
it.  One need not create another type of speech that is excluded from  
protection here -- or at least not in the categorical way I usually think of  
such exclusions -- but rather all that is needed is a recognition that in fact 
 speech is not an absolute right and it may be restricted by a wide range 
of  factors.  Thinking of the tort of invasion of privacy as a TPM  
restriction seems to make much more sense than treating it as strictly  analogous to 
the defamation cases.


Steve



 
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