IIED and vagueness

Fri Nov 2 09:16:21 PDT 2007

Maybe the Code Pink demonstrators were further away than the Phelps group (who I think were 1000 feet from the grave site.) On the other hand, I assume that they were seen by family members and soldiers because we know that family members and soldiers were offended.

Besides, it is easy to imagine that sharply worded and potentially offensive protests aimed at sympathetic people would be so close that these sympathetic people (e.g., mourners or wounded veterans) could not avoid it. What principle separates what is actionable from what is not while respecting first amendment values? Is it mere proximity? And, if it is, doesn't that have to be defined beforehand rather than resolved by a jury after the fact?

The idea that this is targeted at individuals in a way that other protests are not is attractive but ultimately unsatisfying. Phelps is using families of deceased soldiers as props. He's not directing the protest at them personally.

While you could argue that the fact that there are not other funerals going on makes it more likely that the attendees at the targeted funeral will be personally offended, I am not sure that this distinguishes abortion protests or labor picketing. The protesters may have a wider audience in mind, but the folks on the scene are not going to be terribly comforted by that.

Part of the struggle here seems to be a sense that Phelps is sui generis. He literally has no friends anywhere. People on the religious right - even those who oppose same sex marriage and other laws seen as beneficial to gays and lesbians - can't stand him and that revulsion seems to go beyond simple considerations of political strategy. But does that undercut or underscore the need for first amendment protection?

There is also a sense - particularly if you have ever seen these idiots (and, as I mentioned, they picketed my church once and I had to stand outside and direct people around them) that this isn't about politics but reflects a certain psychopathology. They are scary not simply because what they say is disgusting but because there is a Night of the Living Dead quality about them.

But what legal principle could distinguish that?

Rick Esenberg
Visiting Assistant Professor of Law
Marquette University Law School
Sensenbrenner Hall
1103 W. Wisconsin Avenue
Milwaukee, Wisconsin 53201
(o) 414-288-6908
(m)414-213-3957
richard.esenberg at marquette.edu

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Mark Tushnet
Sent: Friday, November 02, 2007 9:26 AM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness

If the actual spatial relation between the location of the activity and those who are offended by it matters, it might be helpful for people to look at a map of Walter Reed Hospital, where the Code Pink demonstratins occurred, and compare the location to that in the funeral case.  (The Code Pink demonstratinos occurred, as I recall, at the Georgia Avenue entrance to the Walter Reed grounds, and if so, they occurred at a location rather far removed from any building in which resturned soldiers stayed as a regular matter; the entrance is a bit closer to some "outbuildings" on the grounds, the functions of which I am ignorant.)

Mark Tushnet

William Nelson Cromwell Professor of Law

Harvard Law School

Areeda 223

Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)

________________________________
From: religionlaw-bounces at lists.ucla.edu on behalf of Esenberg, Richard
Sent: Fri 11/2/2007 9:20 AM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness

As others have suggested, I think it goes like this. It seems quite possible to suppose that military families will be offended by demonstrators, either, as with Code Pink, outside a military hospital (or, say at a military funeral), who suggest that their loved ones were wounded or killed in vain. Heck, we don't even have to speculate because news reports about those demonstrations reflected that families and servicemen were mightily offended.

If you want to say that there ought to be some rule that requires some level of nastiness that may not have been present at the Code Pink demonstrations, it's not hard to imagine (there are ample real world examples) that the demonstrators referred to soldiers as "baby killers" or to those who sent them overseas as "war criminal."

Incidentally, I would be interested in references to studies showing that violence and insult are not evenly distributed across the political spectrum.

Rick Esenberg
Marquette University School of Law
________________________________________
From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Newsom Michael [mnewsom at law.howard.edu]
Sent: Thursday, November 01, 2007 5:58 PM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness

Could you be a bit more specific about the factual context of the Code
Pink demonstrations?  How is it analogous to Westboro's conduct?

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Esenberg,
Richard
Sent: Thursday, November 01, 2007 12:48 PM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness

Well, it certainly seems outrageous to me but I suspect that other
reasonable people might regard the Code Pink demonstrations outside the
Walter Reed Army Medical Center as, if not equally outrageous, at least
comparable in their tendency to upset those who are presumably in a
place in which there is some expectation of privacy and repose. (Don't
we regard hospitals, like funerals, as places in which a certain decorum
can be expected?)

A standard that would potentially restrict such protests seems
problematic and, again, it seems even more troubling to make it, as
seems to have been done here, a jury question.

Rick Esenberg
Visiting Assistant Professor of Law
Marquette University Law School
Sensenbrenner Hall
1103 W. Wisconsin Avenue
Milwaukee, Wisconsin 53201
(o) 414-288-6908
(m)414-213-3957
richard.esenberg at marquette.edu

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, November 01, 2007 11:17 AM
To: Law & Religion issues for Law Academics
Subject: Re: IIED and vagueness

What makes it outrageous is not the content per se, but the content in
the context.  And doesn't the old workhorse, our erstwhile objective
standard of "outrageous to a reasonable person", save it from
unconstitutional vagueness?

Steve

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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