Some of what I am about to say I have said before. But here goes anyway. What would be the risk of viewpoint discrimination, in a practical, real-world, sense? I am not aware of any other groups who attempt to inflict severe emotional distress on the occasion of the funeral of a soldier killed in combat. Studies of the pattern of violence and insult tend to show that it is not evenly distributed across "viewpoints" -- or ideologies. Put in simple English, I seriously doubt that insult-as-weapon is, in any sense of the word, "neutral" and any rule that treated it that way would be quite at variance with the real world and would, as a consequence, unnecessarily privilege and protect a narrow band of people, on the political right, who seem to favor insult-as-weapon on the occasion of the funeral of a soldier killed in combat. (A fact pattern, by the way, that can be easily managed and controlled such that the slippery slope argument has little merit.)
Is there no room left for common decency, or is everything, in the name of a formalist view of the Free Speech Clause, up for grabs for fear of "viewpoint discrimination?" Nor am I sure that the proper object of the law is bright-line rules. Such a view tends to suggest, as Richard Pildes has helpfully pointed out in an article that he wrote on modern formalism, that law-makers, particularly judicial law-makers (i.e. appellate court judges), are somehow worth more than law-appliers (i.e. trial court judges and perhaps intermediate appellate court judges as well), a proposition that is far from self-evident or easily defended. That said, I have no idea of what the Court would do with this case, but my guess is that the Court would overturn the jury verdict 5-4, although Kennedy, on the strength of Romer and Lawrence, might vote with the moderates and the case would come out the other way, 5-4 to uphold the jury verdict (although the punitive damages might be reduced, the Court likely to send a signal, I think, in the Valdez case that it is prepared to rein in punitive damages). -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, November 01, 2007 11:24 AM To: Law & Religion issues for Law Academics Subject: IIED and vagueness 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 > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > [EMAIL PROTECTED] > Sent: Thursday, November 01, 2007 5:13 AM > To: Law & Religion issues for Law Academics > Subject: Re: Anti-gay church verdict > > And, of course, unlike in Hustler, the persons at whom the > speech was directed here were not public figures. > > On this point, I highly recommend Robert Post's article on > Hustler, "The Constitutional Concept of Public Discourse: > Outrageous Opinion, Democratic Deliberation, & Hustler > Magazine v. Falwell," 103 Harvard Law Review 603 (1990). > > -------------- Original message ---------------------- > From: Douglas Laycock <[EMAIL PROTECTED]> > > > > > > Tough call. Hustler v. Falwell says that intentional > infliction of > > emotional distress, when based on political speech, requires actual > > malice. But there the IIED claim was based on the content of the > > speech. Here, assuming the plaintiff's lawyer made a sensible jury > > argument, the IIED claim is based on time, place, and manner. They > > could have said these things, but they could not disrupt a funeral > > while they said them. A court could plausibly distinguish > those cases > > if it chose. > > > > Quoting Joel <[EMAIL PROTECTED]>: > > > > > From: Father wins millions from war funeral pickets > > > http://www.msnbc.msn.com/id/21566280/[1] > > > > > > > > > > > > "The church members testified they are following their religious > > beliefs by > > > spreading the message that soldiers are dying because America is > > too > > > tolerant of homosexuality." > > > > > > > > > > > > "Attorneys for the church maintained in closing arguments Tuesday > > that the > > > burial was a public event and that even abhorrent points of view > > are > > > protected by the First Amendment, which guarantees freedom of > > speech and > > > religion." > > > > > > > > > > > > Any thought on what the appellate court will do? > > > > > > > > > > > > Joel L. Sogol > > > > > > Attorney at Law > > > > > > 811 21st Avenue > > > > > > Tuscaloosa, Alabama 35401 > > > > > > ph (205) 345-0966 > > > > > > fx (205) 345-0967 > > > > > > [EMAIL PROTECTED] > > > > > > > > > > > > Ben Franklin observed that truth wins a fair fight -- which is why > > we have > > > evidence rules in U.S. courts. > > > > > > > > > > > > > > > > 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 > > > > Links: > > ------ > > [1] > > > /horde/services/go.php?url=http%3A%2F%2Fwww.msnbc.msn.com%2Fid%2F21566 > > 280%2F > > > > > > > _______________________________________________ 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.
