IIED and vagueness

[Volokh, Eugene]

	Isn't a restriction on "speech that is outrageous, and inflicts
severe emotional distress, where the speaker knows there's a high
probability that severe emotional distress will be inflicted"
unconstitutionally vague, suffering from all three of the Grayned
problems (risk of viewpoint discrimination in enforcement, difficulty of
telling when one is complying with the law, and resulting deterrent
effect)?  "'Outrageousness' in the area of political and social
discourse has an inherent subjectiveness about it which would allow a
jury to impose liability on the basis of the jurors' tastes or views, or
perhaps on the basis of their dislike of a particular expression."  (I
also think it's unconstitutionally even setting aside the vagueness, but
as in many instances the vagueness is such an important problem that it
makes it hard to do the rest of the constitutional analysis, since it's
so hard to tell just what speech the law will restrict, even if limited
to cases where plaintiffs are private figures.)

	Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of 
> marty.lederman at comcast.net
> Sent: Thursday, November 01, 2007 5:13 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Anti-gay church verdict
> 
> And, of course, unlike in Hustler, the persons at whom the 
> speech was directed here were not public figures.
> 
> On this point, I highly recommend Robert Post's article on 
> Hustler, "The Constitutional Concept of Public Discourse: 
> Outrageous Opinion, Democratic Deliberation, & Hustler 
> Magazine v. Falwell," 103 Harvard Law Review 603 (1990).
> 
>  -------------- Original message ----------------------
> From: Douglas Laycock <laycockd at umich.edu>
> > 
> > 
> >   Tough call.  Hustler v. Falwell says that intentional 
> infliction of 
> > emotional distress, when based on political speech, requires actual 
> > malice.  But there the IIED claim was based on the content of the 
> > speech.  Here, assuming the plaintiff's lawyer made a sensible jury 
> > argument, the IIED claim is based on time, place, and manner.  They 
> > could have said these things, but they could not disrupt a funeral 
> > while they said them.  A court could plausibly distinguish 
> those cases 
> > if it chose.
> > 
> >   Quoting Joel <jlsatty at wwisp.com>:
> > 
> > > From:    Father wins millions from war funeral pickets
> > > http://www.msnbc.msn.com/id/21566280/[1]
> > >
> > >
> > >
> > > "The church members testified they are following their religious
> > beliefs by
> > > spreading the message that soldiers are dying because America is
> > too
> > > tolerant of homosexuality."
> > >
> > >
> > >
> > > "Attorneys for the church maintained in closing arguments Tuesday
> > that the
> > > burial was a public event and that even abhorrent points of view
> > are
> > > protected by the First Amendment, which guarantees freedom of
> > speech and
> > > religion."
> > >
> > >
> > >
> > > Any thought on what the appellate court will do?
> > >
> > >
> > >
> > > Joel L. Sogol
> > >
> > > Attorney at Law
> > >
> > > 811 21st Avenue
> > >
> > > Tuscaloosa, Alabama  35401
> > >
> > > ph (205) 345-0966
> > >
> > > fx  (205) 345-0967
> > >
> > > jlsatty at wwisp.com
> > >
> > >
> > >
> > > Ben Franklin observed that truth wins a fair fight -- which is why
> > we have
> > > evidence rules in U.S. courts.
> > >
> > >
> > >
> > >
> > 
> > Douglas Laycock
> > Yale Kamisar Collegiate Professor of Law University of Michigan Law 
> > School
> > 625 S. State St.
> > Ann Arbor, MI  48109-1215
> >   734-647-9713
> > 
> > Links:
> > ------
> > [1]
> > 
> /horde/services/go.php?url=http%3A%2F%2Fwww.msnbc.msn.com%2Fid%2F21566
> > 280%2F
> > 
> > 
> 
> 
>