IIED and vagueness

Fri Nov 2 11:53:11 PDT 2007

Could you please provide a full and complete factual description of the
Code Pink conduct?  I need to understand how it is analogous, in
concrete, factual terms, with the behavior of the Phelps group.

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Esenberg,
Richard
Sent: Friday, November 02, 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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