IIED and vagueness

Fri Nov 2 07:14:40 PDT 2007

Eugene wrote:

"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."

I wish I had more time to address Eugene's important question. (And even more I wish I had more expertise and insight!) But here is an initial analysis.

The examples Eugene gives are less targeted than the funeral protests. There typically is only one funeral (or at most a few) going on at once at a particular cemetery, and the protest is targeted at the loved ones and friends of a single dead soldier. The protests obviously are not targeted at the cemetery workers; they are focused on causing distress to a particular family (and friends). 

Abortion protests target the whole facility, with a focus, in terms of the animosity expressed, on all of the doctors and other employees of the clinic. The protest is not targeted at a single patient or patient's family. Of course a particular encounter between a protester and a patient or worker outside the clinic may be focused on that patient or worker, but the overall protest is not. 

Labor picketing similarly typically is not targeted at a single person or family but rather at the business and its managers.

I don't know that it's possible to discuss whether fighting words are involved without discussing outrageousness. It is largely the outrage caused by personally targeted speech that potentially makes it fighting words. Let me say, though, that speech targeting a dead soldier's family during a funeral is particularly likely to stir up the very strong violence-inducing emotions that are associated with fighting words. To the extent that a balancing is involved, of the likelihood of the stirring up of such strong emotions versus the speaker's need to engage in targeted speech at that time and place, I'd suggest that labor picketing and abortion protests both are aimed at those who, if persuaded, could act directly or relatively directly on the message to change things in the world. Abortion clinic patients (or would-be patients) and workers could decide against having, or participating in the providing of, abortions. Employers might decide to give the workers the contract they want, and customers, by staying away from the business that is being picketed, may in a relatively direct way affect the decision of the business. By contrast, the families of dead soldiers have no direct say in the military's policy on gays and lesbians. They have even less ability indirectly to affect such policies than they would to affect whether we continue our involvement in Iraq -- on that latter issue they might have an influential voice (though that still would be much more indirect than the abortion clinic or labor picketing examples).

Mark Scarberry
Pepperdine

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From: religionlaw-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Fri 11/2/2007 2:42 AM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness

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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