IIED and vagueness

Volokh, Eugene VOLOKH at law.ucla.edu
Thu Nov 1 13:16:09 PDT 2007


    Well, the Free Exercise Clause protects against *governmental*
restrictions on religious practice -- it doesn't protect against
*nongovernmental* insults of those who are engaged in religious
practice.  So whether the case is Cantwell v. Connecticut, Kunz v. New
York, or this case, restricting the speech would violate the Free Speech
Clause; allowing the speech wouldn't violate the Free Exercise Clause.
 
    Eugene


________________________________

	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Ed Darrell
	Sent: Thursday, November 01, 2007 12:12 PM
	To: Law & Religion issues for Law Academics
	Subject: Re: IIED and vagueness
	
	
	Just out of curiosity, what happens in a hypothetical if the
family of the soldier claims the funeral is a religious service which
deserves special protection from such disruption?  Let's assume the
family has a long record of attending church -- oh, heck, let's assume
the soldier is himself a Returned Missionary for the Latter-day Saints
church, and that his father is the current bishop of the ward.  Which
First Amendment Right gets honored?
	
	
	Steven Jamar <stevenjamar at gmail.com> wrote: 

		Let me get this straight. We want a clear rule that
applies easily in
		all cases and so we just say let any speech happen
because we can't
		ever tell anything with certainty.
		
		Sorry, Eugene, but the law hasn't ever been that way and
certainly is
		not that way in the free speech as you well know.
		
		Defamation is still excluded from protection even though
it too is
		context dependent and would, under your test be
overbroad. And
		Hustler teaches that IIED is a viable tort -- but not as
applied
		against a public figure unless the standard of
maliciousness is met.
		Well, here it is private people and the standard of
malicioiusness is
		certainly met.
		
		This is really more a time-place-manner restriction: you
can say what
		you want, but not in this setting.
		
		Steve
		
		
		On 11/1/07, Scarberry, Mark wrote:
		> 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 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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		>
		
		
		-- 
		Prof. Steven Jamar
		Howard University School of Law
		_______________________________________________
		To post, send message to Religionlaw at lists.ucla.edu
		To subscribe, unsubscribe, change options, or get
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		Please note that messages sent to this large list cannot
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