(1) How does Hustler teach that IIED is a viable tort, as
applied to otherwise protected speech (or at least otherwise protected
speech on matters of public concern). True, it didn't hold that IIED is
impermissible as to otherwise protected speech -- but did it ever hold
that it is viable as to such speech?
(2) Defamation requires that a statement be factually false.
That's sometimes not easy to define, and often not easy to tell, but
it's much clearer than an "outrageousness" standard.
(3) I say it again: The Court has repeatedly held that the
lower scrutiny applicable to time, place, and manner restrictions is
applicable only to *content-neutral* time, place, and manner
restrictions.
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar
> Sent: Thursday, November 01, 2007 11:49 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: IIED and vagueness
>
> Let me get this straight. We want a clear rule that applies
> easily in all cases and so we just say let any speech happen
> because we can't ever tell anything with certainty.
>
> Sorry, Eugene, but the law hasn't ever been that way and
> certainly is not that way in the free speech as you well know.
>
> Defamation is still excluded from protection even though it
> too is context dependent and would, under your test be
> overbroad. And Hustler teaches that IIED is a viable tort --
> but not as applied against a public figure unless the
> standard of maliciousness is met.
> Well, here it is private people and the standard of
> malicioiusness is certainly met.
>
> This is really more a time-place-manner restriction: you can
> say what you want, but not in this setting.
>
> Steve
>
>
> On 11/1/07, Scarberry, Mark <[EMAIL PROTECTED]> wrote:
> > But this is targeted speech. The protesters may not say
> explicitly and specifically refer to the dead soldier or the
> dead soldier's family, but the context makes the targeting
> clear. As I said, the protesters can do this anywhere else,
> and at any other time. It's the proximity ot the funeral that
> makes it targeted and very similar to fighting words.
> >
> > Mark
> >
> > ________________________________
> >
> > From: [EMAIL PROTECTED] on behalf of Volokh, Eugene
> > Sent: Thu 11/1/2007 1:47 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: IIED and vagueness
> >
> >
> > 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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> >
> >
> > _______________________________________________
> > To post, send message to Religionlaw@lists.ucla.edu To subscribe,
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> >
>
>
> --
> Prof. Steven Jamar
> Howard University School of Law
> _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu To
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