Intentional infliction of emotional distress tort post-Hustler-v.-Falwell

[Volokh, Eugene]

	I'm assuming the response about the vagueness is facetious; and
it still leaves me wondering whether there might be a serious, perhaps
constitutionally fatal, vagueness problem here.

	As to the intent to cause distress, that's common in many
picketing contexts.  The stronger argument, I take it, is that the
distress is especially likely to be illegitimate when it's funeral
picketing that harshly condemns the deceased -- but again, even if this
can support a content-neutral and narrow funeral picketing ordinance,
can it really support a potentially content-based distress tort in which
the jury must make an ad hoc judgment of "outrageousness"?

	Finally, I don't think the problem here is that recognizing the
tort would "imply it is somehow outrageous to be impliedly called a
homosexual"; the plaintiffs' claims don't rest on the theory that the
defendants are impliedly calling their late son a homosexual.

	Eugene

> -----Original Message-----
> From: Lynne Henderson [mailto:hendersl at ix.netcom.com] 
> Sent: Friday, June 09, 2006 11:19 AM
> To: Volokh, Eugene
> Cc: CONLAWPROF at lists.ucla.edu
> Subject: Re: Intentional infliction of emotional distress 
> tort post-Hustler-v.-Falwell
> 
> 
> Intentional infliction of emotional distress isn't a vague tort, she 
> said after having taught torts for the first time.  It's whatever 
> causes the jury to exclaim "outrageous!"
> Actually, I think this tort deserves recognition in this context, 
> especially as these folks aren't "public figures", it isn't a parody, 
> etc. The intent of these folks is not benign, and they know they are 
> causing distress.  The bad part is that recognizing the tort 
> would also 
> imply it is somehow outrageous to be impliedly called a 
> homosexual. Lynne Henderson
> 
> On Jun 9, 2006, at 9:51 AM, Volokh, Eugene wrote:
> 
> > 	The main issue, I think, is whether the logic of 
> Hustler applies only 
> > to public figure/public concern cases, or also to private 
> > figure/public concern cases (assuming that a soldier killed 
> in action 
> > is a private figure, which I suspect he typically would 
> be).  I think
> > Hustler's logic has to apply at least that far, among other things
> > because of the risk -- or perhaps certainty -- of viewpoint
> > discrimination that would be inherent in applying the vague 
> intentional
> > infliction of emotional distress tort in such cases.  In 
> that respect,
> > the emotional distress tort is even worse than a narrowly 
> and precisely
> > drafted facially content-neutral anti-funeral-picketing ordinance.
> >
> > 	Eugene
> >
> >> -----Original Message-----
> >> From: conlawprof-bounces at lists.ucla.edu 
> >> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of J. Noble
> >> Sent: Thursday, June 08, 2006 7:05 PM
> >> To: Bryan Wildenthal; Conlawprof at lists.ucla.edu
> >> Subject: RE: Don't fight hate speech by limiting freedom
> >>
> >>
> >> At 9:26 AM -0700 6/8/06, Bryan Wildenthal wrote:
> >>> And yet, surely there must be a way to protect the privacy of 
> >>> funeral observants who simply wish to be left alone in 
> their grief 
> >>> and do NOT want the funeral to become a protest occasion of any 
> >>> sort, either in favor of or against the deceased.
> >>
> >> Anti-gay funeral protesters sued
> >> Father of slain Westminster Marine says members defamed 
> him, invaded 
> >> family's privacy By Gina Davis
> >> Sun Reporter
> >> Originally published June 6, 2006
> >>
> >> The father of a Westminster Marine whose funeral was 
> picketed by an 
> >> anti-gay group is accusing its members of defaming him, 
> invading the 
> >> family's privacy and intentionally inflicting emotional 
> distress, in 
> >> the first individual lawsuit brought against the Kansas 
> organization 
> >> for its protests at these ceremonies.
> >>
> >> *    *    *
> >>
> >> http://www.baltimoresun.com/news/local/carroll/bal-md.ca.prote
> > st06jun06,0,5382360.story?coll=bal-local-carroll
> >
> > The strong claim is intentional infliction of emotional 
> distress. The 
> > constitutional question is whether it gets  a First 
> Amendment defense 
> > like NYT v. Sullivan.
> >
> > John Noble
> > _______________________________________________
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