IIED and vagueness

Thu Nov 1 23:42:27 PDT 2007

Mark:  Would you say that anti-abortion protests at abortion clinics are
likewise "targeted speech," and, if offensive enough in their viewpoint,
punishable fighting words?  What about labor picketing at plants that
are being struck?

I realize that you might argue that this speech is less outrageous than
funeral picketing -- but for now I'm just focusing on whether you'd say
that there's a difference as to whether they are (1) targeted and (2)
potentially fighting words, both concepts that don't themselves involve
an outrageousness inquiry.

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 11:35 AM
	To: Law & Religion issues for Law Academics
	Subject: RE: IIED and vagueness

	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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