IIED and vagueness

[Douglas Laycock]

  I agree on the vagueness problems.  The statutes prohibiting
picketing at funerals have their own problems, but they can avoid
vagueness and define knowable penalties.

  Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

>         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[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
>> >
>> >
>>
>>
>>
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>

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:
------
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[2] 
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