Laws of general applicability in Free Exercise Clause and Fre e Sp eech Clause context

[Volokh, Eugene]

        I agree with Mark that a law that is neutral on its face but applies
to speech because of its communicative impact should be treated as
content-based in that application.  This covers laws such as the ones in
Falwell, NAACP v. Claiborne Hardware, Cohen v. California, Noerr and
Pennington, and Schenck et al., all of which were on their face laws of
general applicability.  (I'm writing a short essay on this subject,
incidentally, so if anyone has any tips or suggestions or thoughts that they
wanted to pass along, I'd be delighted to hear them!)

        Nonetheless, just as a variety of speech-focused laws may
constitutionally punish speech that falls into unprotected categories (such
as threats), so it seems to me that these general laws may constitutionally
be applied to speech that falls into an unprotected category.  Thus, I'd say
that IIED claims may constitutionally be based on false statements of fact
said with actual malice (Hustler said as much), on threats (as in the
horse-head hypo), on fighting words, on obscenity (e.g., when the claim is
IIED by repeatedly showing someone obscene material), and the like.

        I think this approach is more attractive than saying that the IIED
tort passes strict scrutiny as to such speech, because it makes it
unnecessary to twist strict scrutiny doctrine to reach the right result.
For instance, it's not clear to me that there's a "compelling government
interest" in preventing emotional distress generally (and that's the
interest that's probably relevant for strict scrutiny), nor that there's a
"compelling government interest" in preventing false statements of fact said
with actual malice or barring obscenity (if the courts are willing to look
at the interest behind a particular application of the law); nor is it clear
that the IIED tort is "narrowly tailored" to this interest, whatever exactly
that might mean.  But it is OK, I think, to apply the tort to unprotected
speech, precisely because the speech is unprotected (something that might
flow from its low value more than from the compellingness of the interest in
suppressing it).

> -----Original Message-----
> From: Mark Tushnet [SMTP:TUSHNET at WPGATE.LAW3.GEORGETOWN.EDU]
> Sent: Wednesday, June 14, 2000 4:58 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Laws of general applicability in Free Exercise Clause
> and Free Sp eech Clause context
>
> As I understand the law, a statute is content-based if its justification
> takes as a predicate the communicative impact of the regulated activity.
> (Without going back to the cases, that's what I think the flag-burning
> cases say.)  Content-neutrality is, I would think, the obverse of that.
> If so, isn't the "intentional infliction of emotional distress" tort
> content-based?  And if that's right, suppose a case based on the
> horse-head scene in *The Godfather* or a more obviously communicative act
> like sending a dead fish wrapped in a newspaper (from the same movie, I
> think).  I suppose one could handle that either as Larry Tribe does, in
> carving out of the First Amendment part of the tort actions that are
> (clearly?) non-expressive, or (I think more comfortably) by finding that
> applying the tort in such circumstances survives the high degree of
> scrutiny required of content-based regulation.
>
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