[1:56 pm: Bumped up above the more specific posts on the case.] The Supreme Court has just agreed to hear Snyder v. Phelps, the funeral picketing case. I think the lower court decision is quite right, and I worry that the Court’s decision signals the Justices’ willingness to overturn it. But I hope the Justices […]
Archive | Freedom of Speech
The Intentional Infliction of Emotional Distress Tort and the Freedom of Speech
[1:55 pm: Bumped up above the other posts on this case.] I’m blogging today about the Supreme Court’s decision to hear the funeral picketing case. That’s the one in which the jury entered a $10.9 million verdict (reduced by the trial judge to $5 million) against the Phelpsians for their offensive picketing 1000 feet away […]
The Phelpsians’ Speech, the Mohammed Cartoons, and the Slippery Slope
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, […]
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 […]
Colorado Supreme Court Strikes Down Certain Campaign Contribution Limits
The case is Dallman v. Ritter (decided yesterday, by a 4-1 vote, with two Justices not participating). I’m afraid don’t have time to summarize the complex statutory scheme and the court’s complex reaction to that scheme, but the decision struck me as a pretty interesting and important, so I thought I’d pass it along. For […]
Federal Government Argues that Ban on False Claims of Having Gotten a Military Medal Is “Content-Neutral”
By Eugene Volokh on February 8, 2010 12:25 pm in Freedom of Speech, Knowingly False Statements of Fact
A pretty poor argument (see p. 6), it seems to me — the law applies to speech of a certain content, and is justified by a worry that the content of the speech will mislead people. I’ve argued that the ban is constitutionally permissible, because it fits within the knowingly-false-statements-of-fact exception to First Amendment protection. […]
California Independent Spending For and Against Candidates: Unions, Indian Tribes, Individuals, and Corporations
People have wondered what politics will be like after Citizens United, and in particular (1) whether large business corporations will start spending a lot of money speaking out in favor or against candidates for office and (2) how much corporate and union spending for or against candidates will increase relative to each other. As it […]
Justice Thomas Defends Citizens United
The NYT reports on recent by remarks by Justice Clarence Thomas at the Stetson University College of Law in which he responded to criticism of the Court’s Citizens United ruling. In addition to defending the underlying rationale of the ruling, he also addressed the Tillman Act — the federal law barring corporate campaign contributions, which […]
Bloggers: Scaled-back health legislation is likely. Split on effects of Citizens United.
Last week’s National Journal poll of political bloggers asked “What’s the most likely outcome this year of President Obama’s health care reform initiative?” The plurality choice on the Left, and the majority choice on the Right, was “Scaled-back legislation will be enacted.” I agreed: “Remember, even after the defeat of Hillarycare, many of its sub-elements […]
Floyd Abrams on Citizens United
Over the weekend, the WSJ published an interesting interview with First Amendment advocate Floyd Abrams on the Citizens United decision.