Re: You (all) lie!
 

Full page ad on funeral day: "[Dead Soldier] Is Burning In Hell Because He Loved Homo Buttsex!" Intentional infliction of emotional distress? Under state tort law, yes. The question is whether there is constitutional protection for the conduct. There is developed case law that says yes, sometimes. What we need to know is whether the "sometimes" applies to off-topic protests at otherwise public, otherwise newsworthy events. I think you're unnecessarily turning this into an absolute value. Even the SCOTUS doesn't say you can't burden a speech right. Is the risk of tort liability too burdensome, in light of available defenses, is the question, not whether it's crazy to entrust precious constitutional rights to crazy-ass state court juries. That, we already do.

Re: You (all) lie!
 

Right. And my view of the importance of free speech is such that this is a burden that I wouldn't impose. Not because I think it's so important that the God Hates Fags people get their message out, but because it's so easy to think of ways in which the power to impose this burden gets misused.

Personally, when Reverend What-his-name dies, I want to be at his funeral with a sign that says "Rot in Hell, you Fucker." And offer each of his daughters an expense-paid trip to San Francisco, during Fetish Week.

Re: You (all) lie!
 

While this is mostly true as a matter of many states' laws, it is not an element of constitutional jurisprudence. See Milkovich v. Lorain Journal Co. (First Amendment doesn't compel state to privilege the expression of a defamatory opinion). In California, expressions of opinion that imply the existence of undisclosed facts that are false and defamatory are actionable. There is a "disclosed facts" doctrine that says if you lay all your facts on the table alongside the opinion so the reader can judge for him/herself the underpinnings of that opinion, it may be protected. But opinions can be defamatory as a matter of many states' laws and the Supreme Court has not intervened to "correct" it.

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Fuck you, it's ours.

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On the first part of your post, we were pretty clearly excluding defamation from the discussion, since that is already actionable.

On the second part, I'm a lawyer too and I recognize that there are subtleties and exceptions and so forth -- for example, that a statement of opinion can imply a factual statement that is false, in which case it goes beyond being merely a statement of opinion. But, it's really not necessary to always break things down to this level. It makes for long, boring, and pedantic posts. IMHO.

Re: You (all) lie!
 

I didn't say the jury verdict wasn't state action. I said it was the only state action being challenged, which tends to indicate I agree with Prof. Volokh. However, (1) NYT v. Sullivan applied the First Amendment to jury verdicts in favor of public officials, i.e. the Court was unwilling to hide behind the fiction that public officials using the public's court system to vindicate their reputations is not state action, when litigation is governance by other means; and (2) in Gertz v. Robert Welch, Inc. the Supreme Court declined to extend First Amendment protections to non-public figures, so long as the state has declined to impose defamation liability without fault.

The bottom line is that defamation actions, so long as they are based on a negligence regime, include exactly as much "state action" as was at issue in Sullivan, but state action alone is not enough to justify constitutional intervention in traditional tort law principles. Sullivan's analysis was based on the lack of safeguards in Alabama law to prevent citizens from commenting on the behavior of public officials -- there was an underpinning to the constitutional framework far more specific that "speech should be free and defamation liability makes it more expensive." Libel and slander predated the Bill of Rights and were parallel to it for a long time, and the intersection is minimal -- public figures pursuant to Sullivan, not "is there state action."

Re: You (all) lie!
 

The Twitter version was "wrong-o, wrong-o." I'll go with that next time, out of respect for your valuable time.

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Much appreciated. This is helpful, actually -- I've been wondering for a few days how you were going to limit your tweets to 140 characters. I figured you'd do serial-tweets, sort of like some people "comment" on their own Facebook status in order to finish what they were oh-so-wordily saying.

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This is what I was getting at yesterday. Do Rush and Glenn Beck not have people who can check Politico for them before they get in bed (metaphorically) with a guy like Massa?

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Isn't the real question whether Fox will identify Massa as (R-NY), or does that only work in one direction?

And, don't you have people who check Fox before you imply Glenn Beck acts rationally in choosing to get in bed with whackos who help him make some point/get more attention?

Re: You (all) lie!
 

Uh, no.

But I now think Massa is not as dumb as he looks. Knowing that the allegations were going to come out sooner or later, he is trying to defuse them by polarizing himself. It makes it look like the allegations are attacks on him for appearing on Beck, or something.

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So, it's win-win for two whackadoos.

Wake me when someone with some credibility outside tea-party circles cites to Massa with approval. I bet Beck isn't even refering to him by name--while still talking about dem-leadership "loyalty enforcement" or similar nonsense--by April.

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"tickle fights"

in the Navy

Or so I hear.

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Remember when former Gov. McGreevey (D-NJ) deflected - rather well, I might add -the fact that he was a craven crook by changing the topic and declaring himself gay?

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Did it work? I don't pay attention to New Jersey politics.