Cert. granted in Snyder v. Phelps.
Hamilton02 at aol.com
Hamilton02 at aol.com
Wed Mar 10 15:12:40 PST 2010
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).
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
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.
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