IIED and vagueness

[Steven Jamar]

What makes it outrageous is not the content per se, but the content in
the context.  And doesn't the old workhorse, our erstwhile objective
standard of "outrageous to a reasonable person", save it from
unconstitutional vagueness?

Steve

On 11/1/07, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:
>         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


-- 
Prof. Steven Jamar
Howard University School of Law