IIED and vagueness

[Newsom Michael]

Some of what I am about to say I have said before.  But here goes
anyway.

What would be the risk of viewpoint discrimination, in a practical,
real-world, sense?  I am not aware of any other groups who attempt to
inflict severe emotional distress on the occasion of the funeral of a
soldier killed in combat.  Studies of the pattern of violence and insult
tend to show that it is not evenly distributed across "viewpoints" -- or
ideologies.  Put in simple English, I seriously doubt that
insult-as-weapon is, in any sense of the word, "neutral" and any rule
that treated it that way would be quite at variance with the real world
and would, as a consequence, unnecessarily privilege and protect a
narrow band of people, on the political right, who seem to favor
insult-as-weapon on the occasion of the funeral of a soldier killed in
combat.  (A fact pattern, by the way, that can be easily managed and
controlled such that the slippery slope argument has little merit.)

Is there no room left for common decency, or is everything, in the name
of a formalist view of the Free Speech Clause, up for grabs for fear of
"viewpoint discrimination?"

Nor am I sure that the proper object of the law is bright-line rules.
Such a view tends to suggest, as Richard Pildes has helpfully pointed
out in an article that he wrote on modern formalism, that law-makers,
particularly judicial law-makers (i.e. appellate court judges), are
somehow worth more than law-appliers (i.e. trial court judges and
perhaps intermediate appellate court judges as well), a proposition that
is far from self-evident or easily defended.

That said, I have no idea of what the Court would do with this case, but
my guess is that the Court would overturn the jury verdict 5-4, although
Kennedy, on the strength of Romer and Lawrence, might vote with the
moderates and the case would come out the other way, 5-4 to uphold the
jury verdict (although the punitive damages might be reduced, the Court
likely to send a signal, I think, in the Valdez case that it is prepared
to rein in punitive damages).

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, November 01, 2007 11:24 AM
To: Law & Religion issues for Law Academics
Subject: IIED and vagueness


	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

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of 
> marty.lederman at comcast.net
> Sent: Thursday, November 01, 2007 5:13 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Anti-gay church verdict
> 
> And, of course, unlike in Hustler, the persons at whom the 
> speech was directed here were not public figures.
> 
> On this point, I highly recommend Robert Post's article on 
> Hustler, "The Constitutional Concept of Public Discourse: 
> Outrageous Opinion, Democratic Deliberation, & Hustler 
> Magazine v. Falwell," 103 Harvard Law Review 603 (1990).
> 
>  -------------- Original message ----------------------
> From: Douglas Laycock <laycockd at umich.edu>
> > 
> > 
> >   Tough call.  Hustler v. Falwell says that intentional 
> infliction of 
> > emotional distress, when based on political speech, requires actual 
> > malice.  But there the IIED claim was based on the content of the 
> > speech.  Here, assuming the plaintiff's lawyer made a sensible jury 
> > argument, the IIED claim is based on time, place, and manner.  They 
> > could have said these things, but they could not disrupt a funeral 
> > while they said them.  A court could plausibly distinguish 
> those cases 
> > if it chose.
> > 
> >   Quoting Joel <jlsatty at wwisp.com>:
> > 
> > > From:    Father wins millions from war funeral pickets
> > > http://www.msnbc.msn.com/id/21566280/[1]
> > >
> > >
> > >
> > > "The church members testified they are following their religious
> > beliefs by
> > > spreading the message that soldiers are dying because America is
> > too
> > > tolerant of homosexuality."
> > >
> > >
> > >
> > > "Attorneys for the church maintained in closing arguments Tuesday
> > that the
> > > burial was a public event and that even abhorrent points of view
> > are
> > > protected by the First Amendment, which guarantees freedom of
> > speech and
> > > religion."
> > >
> > >
> > >
> > > Any thought on what the appellate court will do?
> > >
> > >
> > >
> > > Joel L. Sogol
> > >
> > > Attorney at Law
> > >
> > > 811 21st Avenue
> > >
> > > Tuscaloosa, Alabama  35401
> > >
> > > ph (205) 345-0966
> > >
> > > fx  (205) 345-0967
> > >
> > > jlsatty at wwisp.com
> > >
> > >
> > >
> > > Ben Franklin observed that truth wins a fair fight -- which is why
> > we have
> > > evidence rules in U.S. courts.
> > >
> > >
> > >
> > >
> > 
> > Douglas Laycock
> > Yale Kamisar Collegiate Professor of Law University of Michigan Law 
> > School
> > 625 S. State St.
> > Ann Arbor, MI  48109-1215
> >   734-647-9713
> > 
> > Links:
> > ------
> > [1]
> > 
> /horde/services/go.php?url=http%3A%2F%2Fwww.msnbc.msn.com%2Fid%2F21566
> > 280%2F
> > 
> > 
> 
> 
> 
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