IIED and vagueness

[Esenberg, Richard]

Well, it certainly seems outrageous to me but I suspect that other reasonable people might regard the Code Pink demonstrations outside the Walter Reed Army Medical Center as, if not equally outrageous, at least comparable in their tendency to upset those who are presumably in a place in which there is some expectation of privacy and repose. (Don't we regard hospitals, like funerals, as places in which a certain decorum can be expected?)

A standard that would potentially restrict such protests seems problematic and, again, it seems even more troubling to make it, as seems to have been done here, a jury question.


Rick Esenberg
Visiting Assistant Professor of Law
Marquette University Law School
Sensenbrenner Hall
1103 W. Wisconsin Avenue
Milwaukee, Wisconsin 53201
(o) 414-288-6908
(m)414-213-3957
richard.esenberg at marquette.edu



-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, November 01, 2007 11:17 AM
To: Law & Religion issues for Law Academics
Subject: Re: IIED and vagueness

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
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