Fighting words and Phelps

[Volokh, Eugene]

    If Mark is right that the speech here is fighting words, then indeed
(1) IIED could be narrowed (if courts accept my view of the overbreadth
issue) to unprotected speech, and yet (2) the result would still lead to
liability here.  In fact, fighting-words-based IIED liability would
presumably be allowed even as to public figures under Hustler v.
Falwell; if recklessly/knowingly false statements of fact are actionable
under IIED, why not other unprotected speech?
 
    Yet I wonder whether the speech here is indeed fighting words, given
Cohen, Gooding, and Johnson.  I would think that publicly visible speech
that is aimed at a large group of people would indeed be protected even
if it's likely to lead people to want to attack the speaker.  That, I
take it, is why picket lines with signs referring to "scabs" or
"traitors" are protected, as are abortion protests that call abortion
providers murderers.  Or am I mistaken?
 
    Eugene
 



________________________________

	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
	Sent: Saturday, November 03, 2007 11:41 AM
	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