IIED and vagueness

[Volokh, Eugene]

    I think the IIED tort is unconstitutionally vague on its face, as
applied to otherwise protected speech.  (I don't think there's any First
Amendment problem with applying it to nonspeech conduct.)  The arguments
in favor of allowing facial challenges -- the need to avoid
unconstitutional chilling effects on parties who aren't yet before the
court, and who might never come before a court for fear of ruinous
lawsuits -- seem to squarely apply here.
 
    Eugene


________________________________

	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
	Sent: Thursday, November 01, 2007 10:03 AM
	To: Law & Religion issues for Law Academics
	Subject: RE: IIED and vagueness
	
	
	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?
	 
	Mark Scarberry
	Pepperdine

	 

	 

	-----------------------------------------
	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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