IIED and vagueness

[Volokh, Eugene]

> On 11/1/07, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:
> >         (1)  How does Hustler teach that IIED is a viable tort, as 
> > applied to otherwise protected speech (or at least 
> otherwise protected 
> > speech on matters of public concern).  True, it didn't hold 
> that IIED 
> > is impermissible as to otherwise protected speech -- but 
> did it ever 
> > hold that it is viable as to such speech?
> 
> Agreed.  But the court did not say that IIED is out of bounds 
> and I read Hustler's reasoning and opinions to permit IIED -- 
> though I agree it is indeed reading tea leaves to a large 
> extent and the exact issue was not part of the holding.

	Sure, it didn't say it.  But it isn't just reading tea leaves to
say that "Hustler teach[es]" the contrary -- at most, Hustler *is
consistent* with the contrary view, rather than teaching it.
> >
> >         (2)  Defamation requires that a statement be 
> factually false.
> > That's sometimes not easy to define, and often not easy to 
> tell, but 
> > it's much clearer than an "outrageousness" standard.
> 
> Agreed, but I don't find that to be an infirmity.  
> Maliciousness is hard to tell to.  As are many other things 
> in the law.

	Fortunately, the libel exception doesn't require a finding of
maliciousness in the English sense of the word -- only knowledge or
recklessness as to falsehood, which is at times hard to tell on the
facts, but is a relatively crisp legal standard.
 
> >
> >         (3)  I say it again:  The Court has repeatedly held 
> that the 
> > lower scrutiny applicable to time, place, and manner 
> restrictions is 
> > applicable only to *content-neutral* time, place, and manner 
> > restrictions.
> 
> They say that, but the "secondary effects" doctrine seems to 
> undermine it a bit, no?

	I don't like that doctrine, but to the Court's credit the Court
has repeatedly constrained the doctrine, in particular stressing that
the emotive effects of speech on the audience are *not* a secondary
effect.  See, e.g., Boos v. Barry; R.A.V; Nationalist County; and more.