IIED and vagueness

Fri Nov 2 13:09:15 PDT 2007

My understanding is that Code Pink demonstrators deployed mock caskets and held up signs saying that soldiers had died or been maimed for a lie along with other attacks on the war in Iraq, describing it, for example, as a war for oil. Here is one description:  http://www.cnsnews.com/ViewSpecialReports.asp?Page=%5CSpecialReports%5Carchive%5C200508%5CSPE20050825a.html.

Is that "as bad as" what Phelps did? Probably not, but what constitutional test ought to be proposed to determine what goes over the outer boundary of civility? We certainly know that, even if the Code Pink demonstrations weren't as outrageous as Phelps' behavior, it was outrageous enough to deeply offend and wound those at whom it was directed.

I am puzzled by the notion that the constitutional test should turn on the nature of the group victimized. First, who was victimized in the Phelps case: gays and lesbians (who are not the ones who sued) or the families of a soldier who were told that God wanted their son or daughter to die? If it's the latter, is there a difference between telling them God wanted their loved one to die and telling them that their loved one's death (or injury) or the death or injury of one's fellow soldiers was in vain? I suspect that they are likely to be as offended by the latter as by the former.

Second, there is the old problem around which groups are sufficiently discrete and insular to deserve special protection. That choice is necessarily ideological. Would it include, for example, rural working class whites and born again Christians? If the choice is ideological, then the first amendment is no longer a guarantee of liberty, but a weapon for political warfare. I appreciate that some folks believe that it cannot be otherwise, but I disagree.

There is some force behind the notion that funerals are unique, although it's not clear that those things that make funerals unique wouldn't also apply to hospitals where soldiers are recuperating.

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 Newsom Michael
Sent: Friday, November 02, 2007 1:53 PM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness

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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