IIED and vagueness

[Scarberry, Mark]

But this is targeted speech. The protesters may not say explicitly and specifically refer to the dead soldier  or the dead soldier's family, but the context makes the targeting clear. As I said, the protesters can do this anywhere else, and at any other time. It's the proximity ot the funeral that makes it targeted and very similar to fighting words.
 
Mark 

________________________________

From: religionlaw-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 11/1/2007 1:47 PM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness


    But Cohen v. California made clear that "fighting words" require some individualized insult of the targeted listener.  Under the view you describe, any speech that may offend a group of people -- for instance, harsh public criticisms of religiosity, or Christianity, or capitalists, or whatever else -- to the point that they might start fighting could be punishable as fighting words.  (True, it might not be quite as "outrageous," but it would still be fighting words under your definition.)  Yet Cohen and Texas v. Johnson, it seems to me, reject that.
 
    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 10:46 AM
	To: Law & Religion issues for Law Academics
	Subject: RE: IIED and vagueness
	
	
	Then I suppose I'd be inclined to argue that IIED as applied in this case is constitutional on Eugene's approach, because what the protesters were doing was very much like fighting words and should not be considered to be protected speech. I'm not sure the quote is correct, but I think H.L. Mencken said, "Every normal man must be tempted at times to spit upon his hands, hoist the black flag, and begin slitting throats." I have to say that if the law cannot somehow restrain these despicable protesters from inflicting such harm on grieving relatives of fallen soldiers, many of us will be tempted. The protesters can hold their protests anywhere else and any other time. 
	 
	On the theory that if one quote is good, two must be better, I'll add that if the law cannot prevent them from doing so at a soldier's funeral then Mr. Bumble was right that "the law is a ass--a idiot."
	 
	Mark Scarberry
	Pepperdine

	 
________________________________

	From: religionlaw-bounces at lists.ucla.edu on behalf of Volokh, Eugene
	Sent: Thu 11/1/2007 1:18 PM
	To: Law & Religion issues for Law Academics
	Subject: RE: IIED and vagueness
	
	
	    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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