If the Phelpsians magically went to their reward tomorrow, public debate would suffer very little. But I think their speech needs to be protected, because allowing the restriction of such speech — especially using the “intentional infliction of emotional distress” tort — would lead to the restriction of much more valuable speech. Now it’s true, […]
Archive | March, 2010
Where’s the State Action in Tort Awards Based on Speech?
Occasionally I hear people ask this question. Criminal prosecution for speech of course involves the government prosecuting and imprisoning or fining someone; injunctions of speech involve a court order barring speech; but when one individual sues another, is that really “state action” that’s governed by the First Amendment? Why isn’t it like a private employer […]
Jury Discretion, Viewpoint Discrimination, and the Size of the Snyder v. Phelps Compensatory Damages Award
The jury awarded $2.9 million in compensatory damages to the plaintiff in Snyder v. Phelps. (It also awarded $8 million in punitive damages, which the judge reduced to $2.1 million.) Now I stress again that the speech here was extremely offensive (and, in my view, entirely unjustified); and of course the plaintiff, being a grieving […]
Funeral Picketing and Residential Picketing
I’ve tried to explain recent posts why I think this particular verdict based on funeral picketing is unconstitutional, because the intentional infliction of emotional distress tort and the invasion of privacy tort can’t properly be used to punish such speech. But may a legislature permissibly enact statutes banning funeral picketing, perhaps by analogy to many […]
The Phelpsians’ Picketing and Fighting Words
I’ve argued in earlier posts that the verdict against Phelps should be set aside because the intentional infliction of emotional distress tort is facially overbroad and thus unconstitutional as applied to speech. The tort might be constitutional if a court limits it to applying only to otherwise unprotected speech (such as threats, fighting words, and […]
Invasion of Privacy and the Freedom of Speech
The Snyder v. Phelps jury held defendants liable not just for intentional infliction of emotional distress, but also for invasion of privacy. “Invasion of privacy” covers several torts, but the ones alleged here were “intrusion upon seclusion” (because the picketing was outside a funeral, albeit 1000 feet away) and “publicity given to private life” (apparently […]
The Overbreadth Doctrine and the Funeral Picketing Case
I blogged above about why the intentional infliction of emotional distress tort is unconstitutional, at least unless it’s limited to otherwise unprotected speech (such as threats or fighting words) — which it hasn’t been. Here I want to explain why it’s proper to focus on the constitutionality of the law generally, and not just on […]
Me Too
I generally don’t like to put up “me too” posts, but I did want to express my agreement with Jonathan Adler’s (and many others’) defense of the Justice Department lawyers who, while in private practice, defended various Guantanamo detainees pro bono. As I argued in a similar controversy three years ago, I’m sure that the […]
Supreme Court’s October Sitting: Speculation About Authorship of Remaining Opinions
With today’s decision in Bloate (pronounced “blow-tay”) v. United States, there are only four cases undecided from the October sitting: United States v. Stevens, 08-769 (the First Amendment challenge to the federal prohibition on depictions of animal cruelty); Salazar v. Buono, 08-472 (involving an Establishment Clause challenge to a cross used in a war memorial […]
Comic Demetri Martin on His Two Years at NYU Law School
Here’s standup comic Demetri Martin on his two years at NYU Law School and the “Word of the Day” game. Good stuff. [youtube]http://www.youtube.com/watch?v=EvG8FLNPVFE&feature=player_embedded[/youtube] Hat tip to TaxProfBlog.
Saving the Everglades, or Saving US Sugar?
The NYT reports that Florida’s ambitious Everglades restoration plan, as actually implemented, may do more to help ag-giant US Sugar than to restore and protect the Everglades. Although heralded when first announced, Florida has had a hard time following through on the plan. the governor’s ambitious plan to reclaim the river of grass, as the […]
From “Nudge” to Shove
The WSJ reports on the rapid rise and apparent fall of behavior economics within the Obama Administration. It begins: A little more than a year into its ascendancy at the White House, behavioral economics as a key policy-making tool may be on the wane. The opening weeks of the Obama administration were a coming-out party […]
Conservatives Defend “Al Qaeda 7”
An increasing number of conservatives are criticizing the group, Keep America Safe, for its shameful ad on the “Al Qaeda 7” — political appointees in the Justice Department who represented detainees prior to their appointment. Benjamin Wittes has also drafted a statement decrying the attacks signed by several prominent conservative attorneys, including Peter Keisler, David […]
Is Texas About to Execute (Another) Innocent Man?
There is strong, if but not conclusive, evidence suggesting that Texas executed an innocent man, Cameron Todd Willingham. Radley Balko reports that some fear the Lone Star state is about to do it again in the case of Hank Skinner. DNA testing of remaining evidence might put an end to such fears, and provide further […]
Where and how to try Adam Gadahn:
Taliban propagandist Adam Gadahn (a/k/a Adam Pearlman and “Azzam the American”) has been captured in Pakistan. In 2006, he was indicted for treason in the federal district court for the Central District of California. Both during and after World War II, federal courts were successfully used for treason trials for American citizens who had served as […]