IIED and vagueness
Mark.Scarberry at pepperdine.edu
Thu Nov 1 10:03:03 PDT 2007
I don't think there is any vagueness at all in the tort of IIED as applied to these funeral protests. I don't think the defendants were in doubt at all that what they were doing would inflict serious emotional distress and would be thought by almost everyone other than themselves (maybe even including themselves) to be outrageous. Wasn't that the point of the protests?
Is Eugene arguing that the vagueness of IIED (overbreadth) as applied to speech renders the tort facially unconstitutional as applied to any speech of any kind? As applied to speech that is not within a traditional exception to Free Speech protection (obscenity, fighting words, true threat, defamation actionable under NY Times v. Sullivan etc.)? Does potential application of IIED to protected speech render the tort unconstitutional even when applied to non-speech? How broad is the facial invalidity? It's been a while since I've read the Falwell/Hustler case, but if facial invalidity applies here, why would the Court have needed to look so carefully at the particular situation in that case? But perhaps I'm missing something here.
I'd swim against the current and argue that IIED as applied to speech should be considered on a case-by-case "as applied" basis, rather than using the typical overbreadth facial invalidity approach. Someone must have addressed this issue; cites?
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.)
Prof. Steven Jamar
Howard University School of Law
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