The trouble with IIED liability here

[Volokh, Eugene]

	I appreciate Randy's point about the risk of juror viewpoint
discrimination.  Yet libel law requires the jury to find -- as
objectively as it can -- whether the statement is factually false, and
the speaker's recklessness or negligence as to falsehood (as to
statements on matters of public concern).  All humans decisions have
some subjectivity, but the subjectivity of that strikes me as very
different from the subjectivity of deciding whether an expression of
opinion is "outrageous."  The "factual falsehood" inquiry seeks to
minimize juror viewpoint discrimination.  The "outrageousness" inquiry
invites it.

	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 2:08 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: The trouble with IIED liability here
> 
> I think Eugene's point about ambiguity and jury behavior is 
> well taken, but it is worth remembering that the same kinds 
> of "unknowns" exist in public libel cases.  Indeed, some are 
> of the view (reasonable I think) that the actual malice 
> standard exacerbates the problem by firing juror's feelings 
> with the evidence of press behavior.  Yet the tort, focused 
> on specific point of view speech in each case, is still 
> constitutional.
> 
> Randy Bezanson
> University of Iowa
> 
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of 
> Volokh, Eugene
> Sent: Saturday, November 03, 2007 1:18 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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