Monday, November 09, 2009
Free Speech and the Furrier
A judge in Portland, Oregon has cited Oregon's elder abuse law as authority for restricting the ability of protesters to approach a 75-year-old furrier. The animal-rights activists, some of whom apparently shouted profanities at the businessman as he walked to his shop and his car, have been ordered to stay 50 feet from the furrier and 15 feet from his store. This is another example of the phenomenon of imposing buffers and bubbles around places and persons in public speech contexts. As is increasingly the case in public speech (and other) contexts, there is some video of the public protests. In the linked-to video, the furrier and a companion appear to be smiling at certain points as the activists follow them, shouting slogans and profanities (which are "beeped" out of the video). The protesters claim that other videos show the furrier making threatening gestures and physically assaulting some in their group. The furrier apparently has video evidence of his own.
The use of the Oregon Elder Abuse Act in this context may be problematic. The Act appears to have been intended to prohibit various forms of physical and financial abuse of the elderly. But it includes in its definition of "abuse" the "[u]se of derogatory or inappropriate names, phrases or profanity, ridicule, harassment, coercion, threats, cursing, intimidation or inappropriate sexual comments or conduct of such a nature as to threaten significant physical or emotional harm to the elderly person . . ." Surely the sensibilities of the elderly are entitled to no greater protection than those of women, aliens, or homosexuals in the public square. To the extent the definition of abuse goes beyond unprotected categories of speech, it is an illegitimate basis for either a restraining order or a civil action by the furrier.
The Elder Abuse Act incorporates a general criminal prohibition on "menacing," which is defined as intentionally placing another, by words or conduct, in fear of imminent serious physical injury. If the protesters aggressively followed and harassed the furrier, they may have violated this prohibition. Even so, the scope of the court's restraining order seems questionable. If the purpose is to protect the furrier from being placed in fear of imminent serious physical injury, a 50-foot protective bubble would seem to sweep more broadly than necessary. The protesters have no right to threaten the physical safety of the furrier. But as in other public speech contexts, the intended audience has no right to be shielded from even crude and offensive messages.
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IIRC, Colorado has similar laws for abortion and funeral protests. Once one accepts the validity of such a limitation in general, I would presume that the precise number of feet in question is an issue of abuse of discretion by the trial court.
The First Amendment issue is whether the restriction is a time, place or manner restrictions that is constitutionally permissable. These restrictions are entitled to much more deferrence than an outright ban on speech of a particular type. While "derogatory or inappropriate names, phrases or profanity, ridicule, harassment, coercion, threats, cursing, intimidation or inappropriate sexual comments or conduct of such a nature as to threaten significant physical or emotional harm to the elderly person" is overbroad, not all elements of that prohibition are overbroad.
Harassment, coercion, threats, intimidation or conduct of such a nature as to threaten significant physical harm are clearly within the realm of what may be prohibited.
The intentional infliction of emotional distress tort, at least, has generally been held to be constitutional and is akin to harassment. Note also that the "threaten significant . . . emotional harm" standard is only in conjunction with the prior enumerated prohibitions, and that the notion that vulnerable classes of people are entitled to greater protection than the general population is not a stranger to the first amendment law.
Also, while outright prohibition of "derogatory or inappropriate names, phrases or profanity, ridicule, . . . cursing, . . . or inappropriate sexual comments or conduct of such a nature as to threaten significant . . . emotional harm to the elderly person" may be constitutionally infirm, it is certainly not obvious that this otherwise constitutionally permitted speech is permitted in all times, places and manners.
The criminal law of provocation isn't irrelevant, and certainly there are public contexts when the law demands a higher standard of behavior than others. Inappropriate sexual comments that might be constitutionally protected when addressed to fellow bar patrons who have no other relationship, would be unlawful sexual harassment in an employment context involving a superior and a subordinate. It wouldn't be off base to roll all of the possibly constitutionally infirm provisions into the context of the more general harassment provision.
I don't know if Oregon has such a law, but many states have general criminal prohibitions of harassment, and/or have TRO statutes that authorize a TRO to issue to prevent harassment without regard to the relationship of the parties. In federal law, for example, it is illegal to make harassing phone calls, and while there may be outer boundaries of allegedly harassing phone calls that are constitutionally questionable, there is little doubt that some level of harassing conduct is constitutionally forbidden.
Also, of course, if legal constitutional prohibitions are sufficient to uphold an order, the fact that it also has support from an unconstitutional statute doesn't itself render the order invalid.
Posted by: ohwilleke | Nov 9, 2009 2:46:40 PM
I appreciate the comments. You write:
Note also that the threaten significant . . . emotional harm standard is only in conjunction with the prior enumerated prohibitions, and that the notion that vulnerable classes of people are entitled to greater protection than the general population is not a stranger to the first amendment law.
Its true that the Supreme Court did take the vulnerability of the abortion clinic patrons into account in upholding various TPM restrictions on abortion protests. One of the dangers in doing so, as I noted in my book Speech Out of Doors, is that there are other audiences that may seek the same sort of protection from emotional harm based upon their vulnerability. The clinic cases are rather unique in this (and other) respects. For example, the fighting words doctrine is no longer interpreted to encompass words that merely inflict emotional harm. I agree that the conduct of the protesters may be proscribed under a harassment or menacing law. Calling someone a derogatory name is offensive and disrespectful. But this alone cannot form the basis for a restraining order or civil action.
At 02:46 PM 11/9/2009, you wrote:
Date: Mon, 9 Nov 2009 11:46:44 -0800
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Posted by: Tim Zick | Nov 9, 2009 3:16:48 PM
"Surely the sensibilities of the elderly are entitled to no greater protection than those of women, aliens, or homosexuals in the public square."
On average, homosexuals and aliens can fight back when threatened (if an American calls me "a*hole", I'll call him "a*hole" too, because I know that if he tries to punch me, I'll be able to break his nose etc); even many women can, if trained in karate etc. Most elderly (as well as children and handicapped persons) cannot - they are "easy prey" and therefore arguably need more protection from abuse to enjoy the same level of security. So the law is not about "sensibilities", but about threat levels.
Posted by: Positroll | Nov 10, 2009 4:45:39 AM