As for Eugene's models 1 and 2, and his preference for model 1, I think of two examples I often use in teaching Hustler: (a) suppose Falwell's mother had been the IIED plaintiff in the Hustler case with respect to the very same parody (unlike Falwell, not a public figure plaintiff, but presumably still a matter of public concern) and (b) a New York case (I can't remember the name) permitting IIED liability against radio disc jockeys for broadcasting the name and place of employment of a young woman whose wedding picture had run in the local newspaper and whom the disc jockeys declared the "winner" of their "ugly bride" contest (not a public figure plaintiff, and not a matter of public concern). I assume Eugene would preclude liability in each case, including the "ugly bride" case; model 2, by contrast, would permit liability in the "ugly bride" case but not in favor of Falwell's mother. It strikes me that model 2 is preferable; why shouldn't the alleged "ugly bride" be pe! rmitted recovery for the disc jockeys' outrageous (and heartless) speech at her expense?
Dan ******************************************* Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] ******************************************* -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, November 01, 2007 6:16 PM To: Law & Religion issues for Law Academics Subject: RE: IIED and vagueness I think that (1) otherwise protected speech (i.e., speech that falls outside the exceptions, and any new strict-scrutiny-justified exclusions) should be as immune from IIED liability as from other liability. But (2) as a fallback, I would say that at the very least speech on matters of public concern should be so protected. I think item 1 is preferable for various reasons, including how hard it is to enunciate any rule distinguishing speech on matters of public concern from speech on matters of private concern, and in particular how badly the Court has botched past decisions applying this (e.g., Connick, Dun & Bradstreet, the dictum in Bartnicki which says that trade secrets are not matters of public concern). But 2 is the least that should be provided. My sense, incidentally, is that the dominant (in my view, correct) view among the lower courts is that otherwise protected speech on matters of public concern should be protected against IIED liability; the view (in my view, incorrect) among the few lower courts that have considered the question as to private-concern speech is that private concern speech should not be so protected -- so the emerging pattern in lower courts is 2. As to telephone harassment laws, it depends on the law; but as a general matter, I think there's some room for the Rowan exception -- when the speech is said to a particular person, who has already said he doesn't want to hear it or (perhaps) who almost certainly doesn't want to hear it even if he hasn't said so, that person should be entitled to cut off communication to him so long as this doesn't cut off communication to others. I don't think this should apply as to speech in public places that is visible by all passersby; and even if it is so applicable, and a law restricting such speech would be constitutional, it would have be framed to be limited to such speech, rather than using the broad terms of the IIED tort. Eugene > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, > Alan > Sent: Thursday, November 01, 2007 2:31 PM > To: Law & Religion issues for Law Academics > Subject: RE: IIED and vagueness > > Just to be clear here, Eugene. Leaving vagueness aside for the moment: > > Are you arguing that all IIED decisions holding defendants liable are > unconstitutional unless they fall within the conventional categories > of unprotected speech (or since they are content-based, unless they > can satisfy strict scrutiny) > > Are you arguing that all IIED cases holding defendants liable are > unconstitutional unless they fall within the conventional categories > of unprotected speech (or since they are content-based, unless they > can satisfy strict scrutiny) -- but only if they involve speech on > matters of public concern. > > Would an IIED claim be constitutional if it did not involve a matter > of public concern? > > Do you think the same analysis applies with regard to harassment > statutes (such as telephone harassment statutes)? > > I don't have an easy answer to these questions, but I admit that that > I am wary of having too much turn on whether speech is on a matter of > public concern and on declaring all IIED claims and harassment > prohibitions unconstitutional. > > Alan Brownstein > > > > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, > Eugene > Sent: Thursday, November 01, 2007 1:34 PM > To: Law & Religion issues for Law Academics > Subject: RE: IIED and vagueness > > (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 > > > _______________________________________________ > > > To post, send message to > Religionlaw@lists.ucla.edu > > > To subscribe, unsubscribe, change options, or get > > > password, see > > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > > > Please note that messages sent to this > > large list cannot be viewed as private. Anyone can > subscribe to the > > list and read messages that are posted; people can read the Web > > archives; and list members can (rightly or > > wrongly) forward the messages to others. > > > > > > > > > > > > _______________________________________________ > > > To post, send message to Religionlaw@lists.ucla.edu To subscribe, > > > unsubscribe, change options, or get password, see > > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > > > Please note that messages sent to this large list cannot be > > viewed as private. Anyone can subscribe to the list and > read messages > > that are posted; people can read the Web archives; and list members > > can (rightly or wrongly) forward the messages to others. > > > > > > > > > > > > -- > > Prof. Steven Jamar > > Howard University School of Law > > _______________________________________________ > > To post, send message to Religionlaw@lists.ucla.edu To subscribe, > > unsubscribe, change options, or get password, see > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > Please note that messages sent to this large list cannot be > viewed as > > private. Anyone can subscribe to the list and read > messages that are > > posted; people can read the Web archives; and list members can > > (rightly or wrongly) forward the messages to others. > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu To subscribe, > unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can > (rightly or wrongly) forward the messages to others. > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu To subscribe, > unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can > (rightly or wrongly) forward the messages to others. > _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
