IIED and vagueness

[Jean Dudley]

On Nov 2, 2007, at Friday,November 2, 2007,7:14 AM, Scarberry, Mark  
wrote:
>
> 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

Something that has not been brought up in this discussion is the  
factor of the nature of grieving in our culture.  As a society, we  
tend to subdue our public grieving, making funerals solemn affairs.   
Yes, there are exceptions to this tendancy;  the famous New Orleans  
tradition of jazz bands at funeral processions is one.  It seems to  
me that this is part and parcel (if oddly reversed) to the clause  
"pursuit of happiness".  Grievers have the right to conduct their  
rituals of mourning as they see fit, without disruption from  
uninvited parties.  What laws provide assurance of this?  In Rhode  
Island, it is illegal to interrupt a funeral procession on the  
streets, to cut across the line of cars in a funeral procession.   
Conversely, there are laws regulating the procession, what roads can  
be utilized.  These laws are in place to protect the dignity and  
sanctity of the funeral rite.

In contrast, Planned Parenthood clinics are places of business, and  
do not have the implied privacy of grieving.  Laws have been put in  
place to limit the access of protesters;  when a protester verbally  
assaults a client of the clinic, that is actionable as assault.   
While I'm not familiar with the legal implication of "fighting  
words", it seems to me that given the fragile and volatile nature of  
grieving, specifically targeting a particular funeral with words  
intended to hurt could be construed as aggravated assault.  The same  
should be true of when a protester shouts "baby killer" in the face  
of a woman who is going to the clinic to renew her prescription of  
HIV medications and contraceptives.

Jean Dudley
I still think Mr. Phelps is lucky he wasn't attacked by the grieving  
relatives of the soldier.  There's a clear case of "Yer honor, he  
needed killin'" if I ever saw one.