The trouble with IIED liability here

[Bezanson, Randall P]

For what it's worth, a procedure used in many libel cases is to
bifurcate the jury findings, asking first the questions of falsity
concerning the plaintiff and reputational harm, and thereafter the
question of actual malice (if a public libel case), or knowledge of
falsity or reckless disregard of truth, as well as damages.  This is
done to separate the different questions of falsity and malice (both of
which, however, are constitutionally required findings in public libel
cases).

 

Like libel, I would expect the first amendment questions to be
incorporated into the required fact findings, not separately considered
as such.

 

Randy Bezanson

 

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Saturday, November 03, 2007 1:41 PM
To: Law & Religion issues for Law Academics
Subject: RE: The trouble with IIED liability here

 

I think the speech here simply was not protected by the First Amendment,
because it falls within the fighting words exception. Assuming that is
true (or that this speech is unprotected under some other exception
analogous to fighting words), is the application of the First Amendment
an issue initially for the jury? If I understand the law correctly, the
trial court (and reviewing courts) would not be bound by a jury finding
on the "constitutional facts" that take the speech out of the protection
of the First Amendment. I suppose it's possible, though, that the jury
ought to decide those facts first, thus giving the defendant two bites
at the apple. (Any 7th Amendment issue here on re-examination of facts
found by a jury?)

 

If the issue is for the court, then Eugene's criticism of the jury
instructions and of use of the tort of IIED may lose its force. The jury
will only be allowed to find for the plaintiff under the tort if the
court determines that the First Amendment does not preclude liability.
Or would the jury instructions still need to be tailored? That is, would
there still be a residual requirement that damages be awarded based only
on the features of the speech that took it out of First Amendment
protection?


Mark Scarberry

Pepperdine

 

________________________________

From: religionlaw-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Sat 11/3/2007 2:17 PM
To: Law & Religion issues for Law Academics
Subject: The trouble with IIED liability here

        I share people's sense that this sort of funeral picketing is
outrageous, and, as I've said before, I think a content-neutral
restriction on picketing right in front of a funeral (and perhaps within
a small bubble around it) may well be constitutional under Frisby.  But
I'm puzzled by people's willingness to endorse restricting the speech
not under such a narrow restriction, but under the broad and vague
intentional infliction of emotional distress tort, with its
"outrageousness" criterion.

        Consider:  The chief arguments for why this speech should be
restrictable have to do with the outrageousness of the combination of
(1) location of the speech, which suggests targeting at the bereaved,
and (2) the derogatory nature of the speech towards the deceased.  But
I'm pretty sure that nothing in the instructions told the jury to limit
themselves to this.  If they were instructed in the language of the
tort, the jury could have found outrageousness partly or chiefly based
on, for instance,

        (a) the outrageousness of any harsh and unfair criticism of the
deceased on the day of the funeral, even if it were in a TV ad or a
newspaper article;

        (b) the outrageousness of harsh and unfair criticism of soldiers
who have died for their country;

        (c) the outrageousness of speech that expresses hatred towards
America;

        (d) the outrageousness of anti-gay speech;

        (e) the outrageousness of speech that perverts religion (or in
particular Christianity) for hateful unpatriotic purposes.

        Nothing in the instructions barred them from considering these
factors; in fact, the term "outrageous" *invited* them to consider the
whole range of what reasonable people may consider outrageous -- and I'm
pretty sure that some reasonable people would find each of these items
to be aspects of "outrageousness."

        We may indeed suspect that most jurors were also influenced by
outrageousness factors (1) and (2), which are more legitimate in our
views than (a) through (e).  But we don't know, and can't know, how
influenced they were by them.  Perhaps they would have found the speech
not to be outrageous if it weren't for its unpatriotic character,
anti-gay character, anti-someone-who-died-for-his-country character, or
perversion-of-Christianity character.  Perhaps they would have found the
speech outrageous, but would have imposed a far smaller punitive damages
award.

        If the case had involved an ordinance targeted at funeral
picketing, then the jury would have been instructed to focus on
non-viewpoint factors, and the verdict (assuming the jury followed the
instructions) would have reflected simply a judgment that the people did
indeed picket a funeral.  Their viewpoints wouldn't have mattered; and
if they expressed the viewpoints elsewhere, we would have been confident
that the law couldn't apply to them. 

        But the IIED tort offers zero assurance of this.  At most the
discussion on this thread suggests that if many (not all) of us law
professors were on the jury, we would have voted for liability solely
based on factors (1) and (2), and would have based the punitive damages
based on (1) and (2).  But other than wishful thinking or projecting our
views on others, what basis do we have for being confident that the jury
limited its analysis to those two factors?  Isn't it unconstitutional
for the IIED tort to allow the jury to consider factors (a) through (e)
in addition to, or even instead of, (1) and (2)?

        Eugene

P.S.  For purely doctrinal support for the proposition that a verdict
cannot stand if it's impossible to tell whether it was based on a
constitutionally permissible ground or a constitutionally impermissible
one, see [394 Street v. New York, U.S. 576, 594 (1969); but I don't
think it's necessary to rely chiefly on that precedent, since the
premise strikes me as so clearly sensible.
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