But Cohen v. California made clear that "fighting words" require
some individualized insult of the targeted listener. Under the view you
describe, any speech that may offend a group of people -- for instance,
harsh public criticisms of religiosity, or Christianity, or capitalists,
or whatever else -- to the point that they might start fighting could be
punishable as fighting words. (True, it might not be quite as
"outrageous," but it would still be fighting words under your
definition.) Yet Cohen and Texas v. Johnson, it seems to me, reject
that.
Eugene
________________________________
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, Mark
Sent: Thursday, November 01, 2007 10:46 AM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness
Then I suppose I'd be inclined to argue that IIED as applied in
this case is constitutional on Eugene's approach, because what the
protesters were doing was very much like fighting words and should not
be considered to be protected speech. I'm not sure the quote is correct,
but I think H.L. Mencken said, "Every normal man must be tempted at
times to spit upon his hands, hoist the black flag, and begin slitting
throats." I have to say that if the law cannot somehow restrain these
despicable protesters from inflicting such harm on grieving relatives of
fallen soldiers, many of us will be tempted. The protesters can hold
their protests anywhere else and any other time.
On the theory that if one quote is good, two must be better,
I'll add that if the law cannot prevent them from doing so at a
soldier's funeral then Mr. Bumble was right that "the law is a ass--a
idiot."
Mark Scarberry
Pepperdine
________________________________
From: [EMAIL PROTECTED] on behalf of Volokh,
Eugene
Sent: Thu 11/1/2007 1:18 PM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness
I think the IIED tort is unconstitutionally vague on its
face, as applied to otherwise protected speech. (I don't think there's
any First Amendment problem with applying it to nonspeech conduct.) The
arguments in favor of allowing facial challenges -- the need to avoid
unconstitutional chilling effects on parties who aren't yet before the
court, and who might never come before a court for fear of ruinous
lawsuits -- seem to squarely apply here.
Eugene
________________________________
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, Mark
Sent: Thursday, November 01, 2007 10:03 AM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness
I don't think there is any vagueness at all in the tort
of IIED as applied to these funeral protests. I don't think the
defendants were in doubt at all that what they were doing would inflict
serious emotional distress and would be thought by almost everyone other
than themselves (maybe even including themselves) to be outrageous.
Wasn't that the point of the protests?
Is Eugene arguing that the vagueness of IIED
(overbreadth) as applied to speech renders the tort facially
unconstitutional as applied to any speech of any kind? As applied to
speech that is not within a traditional exception to Free Speech
protection (obscenity, fighting words, true threat, defamation
actionable under NY Times v. Sullivan etc.)? Does potential application
of IIED to protected speech render the tort unconstitutional even when
applied to non-speech? How broad is the facial invalidity? It's been a
while since I've read the Falwell/Hustler case, but if facial invalidity
applies here, why would the Court have needed to look so carefully at
the particular situation in that case? But perhaps I'm missing something
here.
I'd swim against the current and argue that IIED as
applied to speech should be considered on a case-by-case "as applied"
basis, rather than using the typical overbreadth facial invalidity
approach. Someone must have addressed this issue; cites?
Mark Scarberry
Pepperdine
-----------------------------------------
On 11/1/07, Volokh, Eugene <[EMAIL PROTECTED]> wrote:
> Isn't a restriction on "speech that is
outrageous, and inflicts
> severe emotional distress, where the speaker knows
there's a high
> probability that severe emotional distress will be
inflicted"
> unconstitutionally vague, suffering from all three of
the Grayned
> problems (risk of viewpoint discrimination in
enforcement, difficulty of
> telling when one is complying with the law, and
resulting deterrent
> effect)? "'Outrageousness' in the area of political
and social
> discourse has an inherent subjectiveness about it
which would allow a
> jury to impose liability on the basis of the jurors'
tastes or views, or
> perhaps on the basis of their dislike of a particular
expression." (I
> also think it's unconstitutionally even setting aside
the vagueness, but
> as in many instances the vagueness is such an
important problem that it
> makes it hard to do the rest of the constitutional
analysis, since it's
> so hard to tell just what speech the law will
restrict, even if limited
> to cases where plaintiffs are private figures.)
>
> Eugene
--
Prof. Steven Jamar
Howard University School of Law
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