Libel law vs. the emotional distress tort
Volokh, Eugene
VOLOKH at law.ucla.edu
Sat Nov 3 16:54:00 PDT 2007
The premise of libel law is that false statements of fact lack
constitutional value. That's why it's OK to award compensatory damages
in private figure / public concern cases based on negligence. (Punitive
damages in any public concern case, including a private figure case,
require recklessness or knowledge about the falsehood.)
But the Court has rightly refused to judge the value of various
statements of opinion (see Gertz itself). So when we're talking
statements of opinion, I don't see why libel law should be an analogy
(any more than recklessness about damage to the white-owned stores
should have been seen as the equivalent of "actual malice" and thus led
to liability in NAACP v. Claiborne Hardware).
Eugene
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> Bezanson, Randall P
> Sent: Saturday, November 03, 2007 3:06 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Speech and conduct
>
> Were it libel, the case would (as I suggested in my comment)
> likely be a private libel governed by Gertz (negligence and
> not actual malice.
>
> Randy Bezanson
> Univ. of Iowa
>
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
> Sent: Saturday, November 03, 2007 4:43 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Speech and conduct
>
> isn't this a case of private plaintiffs? Do you need to show
> actual malice in private libel? I don't think so, and it is
> still constitutional.
>
> Steve
>
>
> On 11/3/07, Bezanson, Randall P <randy-bezanson at uiowa.edu> wrote:
> > Unless I'm mistaken, I think the constitutional narrow
> tailoring and
> > compelling interest ideas are accomplished in public libel cases by
> the
> > requirements of actual malice and proven falsity. In IIED
> I suppose
> > those requirements could by analogy be satisfied by a form
> of specific
> > intent to inflict serious emotional harm on a particular
> person(s) and
> > outrageousness of the conduct/speech, though we don't know
> because the
> > Supreme Court has not, to my knowledge, explicitly addressed the
> > question in what by libel standards would likely be a private libel
> case
> > governed by Gertz, not NYT v. Sullivan.
> >
> > Randy Bezanson
> >
> > -----Original Message-----
> > From: religionlaw-bounces at lists.ucla.edu
> > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> Steven Jamar
> > Sent: Saturday, November 03, 2007 1:36 PM
> > To: Law & Religion issues for Law Academics
> > Subject: Re: Speech and conduct
> >
> > IIED can be treated just like defamation and not protected by free
> > speech, though Eugene would not want it treated like that.
> >
> > Or this can be (properly in my view) viewed as mixed conduct and
> > speech and regulated by modest extension of time place and
> manner and
> > secondary effects doctrines -- easy enough to fashion a narrow rule
> > for this sort of situation that avoids the serious concerns of
> > censorship.
> >
> > Or it can be viewed as purely content-based (improperly in my view)
> > and upheld under some version of speech strict scrutiny such as
> > compelling interest, narrowly tailored, ample alternative avenues
> > availalble.
> >
> > I am unpersuaded by Eugene's underinclusive argument -- as I was in
> > R.A.V.
> >
> > Just as categories of "unprotected speech" are not so pure,
> neither is
> > the idea of content nuetrality as simple or absolute or
> pure as Eugene
> > wants it to be.
> >
> > Steve
> >
> >
> > On 11/3/07, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:
> > >
> > >
> > > I agree with Marci about one thing: This was indeed
> outrageous;
> > the
> > > "allegedly" was an inartful way to cover the possibility of IIED
> > applying to
> > > several hypotheticals at once ("If there were a half dozen people
> > standing
> > > on the street corner near the funeral talking to each other, the
> > attendees
> > > to the funeral might be very slightly put off, but very slightly.
> If
> > there
> > > were people engaged in labor picketing against the cemetery's
> > practices,
> > > they might think it's mildly disrespectful, but not remotely
> > 'outrageous.'
> > > If there were people standing with signs saying 'Our
> condolences for
> > your
> > > and our nation's loss,' the attendees would likely be pleased,
> unless
> > they
> > > were a very private sort of people, in which case they might find
> this
> > a
> > > little tacky or annoying. What makes the behavior allegedly
> > outrageous
> > > infliction of severe emotional distress (or for that matter an
> > actionable
> > > invasion of privacy) is precisely the speech"), but I'm
> happy to say
> > that
> > > the allegations were perfectly true here.
> > >
> > > But as my hypotheticals show, I think, the IIED liability is
> based
> > > precisely on *what is said* in this place. It's possible that a
> jury
> > might
> > > have found IIED even if it wasn't said at the funeral,
> but was said
> in
> > a
> > > local newspaper ad bought the day of the funeral -- I
> agree the jury
> > would
> > > have been less likely to find IIED there, but the IIED
> tort is broad
> > and
> > > vague enough that no-one can tell for sure. But it's impossible
> that
> > the
> > > jury would have found "outrageousness" if the speech were at the
> > funeral,
> > > but was merely labor picketing, or casual conversation among a few
> > people
> > > gathered on a corner, or the "Our condolences for your and our
> > nation's
> > > loss."
> > >
> > > Nor -- returning to the thread -- is it proper to discuss the
> > location
> > > as a "conduct" issue. The choice of which ordinance to target is
> just
> > as
> > > much a "speech" factor as the choice of what to say. It may be
> > regulable
> > > under the Ward standard for content-neutral time, place,
> and manner
> > > regulations; but this is not such a content-neutral
> regulation. It
> > may be
> > > restrictable under strict scrutiny, as Marci suggests, though I
> don't
> > think
> > > so. (I think a content-neutral limit on all picketing in
> front of a
> > funeral
> > > would likely pass muster, by analogy to Frisby v. Schultz, if it's
> > limited
> > > to speech in front of the funeral; but, as I said, the
> IIED tort is
> > not such
> > > a content-neutral law.) But any restriction on this should be
> judged
> > as the
> > > speech restriction that it is, not as a "conduct" restriction.
> > >
> > > Eugene
> > >
> > >
> > > ________________________________
> > > From: religionlaw-bounces at lists.ucla.edu
> > > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> > > Hamilton02 at aol.com
> > > Sent: Saturday, November 03, 2007 6:38 AM
> > > To: religionlaw at lists.ucla.edu
> > > Subject: Re: Speech and conduct
> > >
> > >
> > >
> > >
> > > I strongly disagree with Eugene here. It's not the speech per se,
> but
> > > rather the location of the speech that is outrageous. And this
> speech
> > in
> > > its chosen location in particular is not "allegedly"
> outrageous, but
> > rather
> > > outrageous on every meter known to civilized individuals.
> Death is
> > when
> > > families are most vulnerable, desperately need privacy,
> and operate
> in
> > > deep communion with their own religious worldview and
> faith. That's
> > why
> > > this group has chosen these funerals -- to get the most attention
> and
> > be the
> > > most destructive.
> > >
> > > Picking up on Alan's point, I don't think there is any
> question that
> > there
> > > is a compelling interest in keeping these speakers away from
> families
> > during
> > > the funeral. Another point is that a person only has one
> funeral, so
> a
> > > funeral-related restriction is extremely limited in time
> and place.
> > There
> > > is no less restrictive means than restricting the location of such
> > speech
> > > vis-a-vis the time and place of the funeral itself.
> > >
> > > Marci
> > >
> > >
> > > In a message dated 11/2/2007 8:00:13 P.M. Eastern Daylight Time,
> > > VOLOKH at law.ucla.edu writes:
> > > What makes the behavior allegedly outrageous infliction of severe
> > > emotional distress (or for that matter an actionable invasion of
> > > privacy) is precisely the speech.
> > >
> > > Eugene
> > >
> > >
> > >
> > >
> > >
> > >
> > >
> > > ________________________________
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> >
> >
> > --
> > Prof. Steven Jamar
> > Howard University School of Law
> > _______________________________________________
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> >
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> >
> > _______________________________________________
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>
>
> --
> Prof. Steven Jamar
> Howard University School of Law
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu To
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