IIED and vagueness
Volokh, Eugene
VOLOKH at law.ucla.edu
Thu Nov 1 16:41:45 PDT 2007
Well, as Hustler v. Falwell shows, insult-as-weapon is hardly a
monopoly of the political right. Nor is Phelps exactly representative
of the political right; the political right isn't known for saying
"Thank God for Dead Soldiers." Likewise, flagburning and other forms of
insult-as-weapon are often used by people on the political left. But
even if insult-as-weapon was mostly on the political right, wouldn't
carving out a new First Amendment exception for speech because the
speech is from "the political right" raise the very prospects of
viewpoint discrimination that Prof. Newsom suggests are unlikely?
In any event, my concern isn't that IIED *as applied to funeral
picketing* is especially dangerous (though I don't endorse it even
there). A narrow, facially content-neutral ban on funeral picketing in
front of the funeral would be far less troublesome than the IIED tort.
The problem is that the IIED tort, which is by no means limited to
funerals or to picketing, is vague and potentially extremely broad. And
the viewpoint discrimination risk arises when a jury is asked to decide
whether speech is "outrageous," something that is indeed likely to be
substantially influenced by the jury's view about the viewpoint the
speech expresses.
Eugene
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> Newsom Michael
> Sent: Thursday, November 01, 2007 3:55 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: IIED and vagueness
>
> 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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