Quote:
Originally Posted by markem
All four more or less stated the same thing: context is everything. The picture in question, sans context, is meaningless when discussing the merits of a suit.
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In a nutshell that is what I was trying to convey. All I was saying is that a lawsuit arising from the picture could lead to a lawsuit. Not would, but could.
Quote:
Originally Posted by Ahbroody
Okay I will seriously try to be done after this. I clearly stated I didnt want to turn this into what you just did by cutting and pasting law. Again I am just a dumb cop I dont practice in the area of torts this was not my specialty in school either as I am not a big Tort guy.
To me you are putting the cart before the horse as my instructors used to say. Before you can bring the IIED or negligence claim we must determine if the speech is protected. If the speech is deemed protected you have no basis for the action. How can you bring an action against someone for protected speech? You are asking that the court take away their 1st ammendment right in doing so.
So before you do your IIED or nusiance analysis shouldnt you do a 1st ammentdment analysis? Without this you are pissing in the wind or atleast I think you are. As you are asking the court to violate someones right to free speech. Now as to the freedom of speech argument you slipped in at the end and non protected speech. Which again before we can touch your IIED argument we must clear this hurdle.
This speech is protected lets look at why. To me its not black and white argument its just basic review of the 1st ammendment. You slip in the comment on yelling fire. You did not make a complete analysis as to why those statements are not allowed. It goes to the argument of emminent incitement of lawlessness/ illegal activity. You can yell fire in a theater and have nothing happen to you. It has happened in fact. I will not analyze the fighting words portion of your argument as it has no logical application.
What I find funny is you are quoting holmes "fire in a crowded theater" argument which was later overturned. The Brandenburg case which is the controlling case on this and overturned the holmes decision says the action must be one that is likely to result in emminent lawless action. So my dumb cop brain says you need to make an argument that the sign will create emminent lawless activity. Atleast based on what you have given me to work with to this point.
You may find my views funny. I find it funny you took all that time to write out that reply cutting and pasting in law and left things out and quoted one of the most discussed cases ever showing an error by one who is considered a great justice. Further you are discussing bringing an action on something that you have not even verified is unprotected speech yet.
Please show me first that this is unprotected speech and then we can discuss the possible remedies that can be brought. Again I am just a dumb cop so maybe I am way off on this one. I just thought you had to first determine if the speech was not protected before you could seek a remedy for it. 
So where is the 1st ammendment violation |
We get it, you're a self proclaimed "dumb cop" (which I think it's safe to say that we all know is not true). Due to the lack of facts surrounding the picture (which is most likely photo shopped, so we're arguing about picture without context), I'm done arguing a hypothetical without details. As stated above, my entire point of providing two potential cause of actions was that a potential for a lawsuit was plausible, even in the face of a 1st Amendment defense. The 1st Amendment defense is not an absolute defense. That's all, nothing else!