Fighting words and Phelps

[Steven Jamar]

Agreed as to the effect on the time place and manner aspect of the  
intentional infliction of emotional distress tort.  I think a general  
statute prohibiting all picketing and demonstrations at or around  
funerals would still be a constitutional time, place, or manner  
restriction (and even Eugene would agree, I think since it would  
content neutral).

So the issue then becomes on of is there  constitutional protection  
that always trumps intentional infliction of emotional distress.  We  
need to take the jury verdict as found -- the targeting, the  
intention, the serious emotional distress, etc.  So the question  
would then become, even if all that exists, is the speech going to be  
protected?  Or are we going to get a Sullivan/Gertz style distinction  
here?

Steve

On Nov 6, 2007, at 9:54 AM, Douglas Laycock wrote:

> This fact, if true, also wipes out the time, place, and manner  
> argument for intentional infliction of emotional distress.  If  
> Phelps was not disturbing the funeral, this is just offensive  
> speech.  The only distinction from Hustler v. Falwell is that the  
> target is not a public figure.
>
> Quoting "Esenberg, Richard" <richard.esenberg at marquette.edu>:
>
> > If the Baltimore Sun report is correct
> > (http://www.baltimoresun.com/news/local/bal- 
> westboro1031,0,7191706.story?page=2&coll=bal_tab01_layout),  then  
> the Phelps statements could not be fighting words because the  
> plaintiff never saw the demonstration at the funeral. He saw it on  
> television after the fact. If the speech is otherwise unprotected,  
> it must either be for the reasons suggested by Michael Newsom or by  
> an exception not for funerals, but for statements that can  
> reasonably be expected to upset grieving families. Does anyone support
> > that?
> >
> > Rick Esenberg
> > Marquette Unioversity Law School
> >
> >
> >
> >
> > ________________________________________
> > From: religionlaw-bounces at lists.ucla.edu
> > [religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> > [VOLOKH at law.ucla.edu]
> > Sent: Tuesday, November 06, 2007 12:36 AM
> > To: Law & Religion issues for Law Academics
> > Subject: Fighting words and Phelps
> >
> >    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
> >
> > _______________________________________________
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> >
> >
>
>
> Douglas Laycock
> Yale Kamisar Collegiate Professor of Law
> University of Michigan Law School
> 625 S. State St.
> Ann Arbor, MI  48109-1215
>   734-647-9713
>
> _______________________________________________
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-- 
Prof. Steven D. Jamar                     vox:  202-806-8017
Howard University School of Law           fax:  202-806-8567
2900 Van Ness Street NW         mailto:stevenjamar at gmail.com
Washington, DC  20008	                http://iipsj.com/SDJ/

Nothing worth doing is completed in our lifetime,
Therefore, we are saved by hope.
Nothing true or beautiful or good makes complete sense in any  
immediate context of history;
Therefore, we are saved by faith.
Nothing we do, however virtuous, can be accomplished alone.
Therefore, we are saved by love.
No virtuous act is quite a virtuous from the standpoint of our friend  
or foe as from our own;
Therefore, we are saved by the final form of love which is forgiveness.

Reinhold Neibuhr


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