I think Eugene's point about ambiguity and jury behavior is well taken, but it is worth remembering that the same kinds of "unknowns" exist in public libel cases. Indeed, some are of the view (reasonable I think) that the actual malice standard exacerbates the problem by firing juror's feelings with the evidence of press behavior. Yet the tort, focused on specific point of view speech in each case, is still constitutional.
Randy Bezanson University of Iowa -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Saturday, November 03, 2007 1:18 PM To: Law & Religion issues for Law Academics Subject: The trouble with IIED liability here I share people's sense that this sort of funeral picketing is outrageous, and, as I've said before, I think a content-neutral restriction on picketing right in front of a funeral (and perhaps within a small bubble around it) may well be constitutional under Frisby. But I'm puzzled by people's willingness to endorse restricting the speech not under such a narrow restriction, but under the broad and vague intentional infliction of emotional distress tort, with its "outrageousness" criterion. Consider: The chief arguments for why this speech should be restrictable have to do with the outrageousness of the combination of (1) location of the speech, which suggests targeting at the bereaved, and (2) the derogatory nature of the speech towards the deceased. But I'm pretty sure that nothing in the instructions told the jury to limit themselves to this. If they were instructed in the language of the tort, the jury could have found outrageousness partly or chiefly based on, for instance, (a) the outrageousness of any harsh and unfair criticism of the deceased on the day of the funeral, even if it were in a TV ad or a newspaper article; (b) the outrageousness of harsh and unfair criticism of soldiers who have died for their country; (c) the outrageousness of speech that expresses hatred towards America; (d) the outrageousness of anti-gay speech; (e) the outrageousness of speech that perverts religion (or in particular Christianity) for hateful unpatriotic purposes. Nothing in the instructions barred them from considering these factors; in fact, the term "outrageous" *invited* them to consider the whole range of what reasonable people may consider outrageous -- and I'm pretty sure that some reasonable people would find each of these items to be aspects of "outrageousness." We may indeed suspect that most jurors were also influenced by outrageousness factors (1) and (2), which are more legitimate in our views than (a) through (e). But we don't know, and can't know, how influenced they were by them. Perhaps they would have found the speech not to be outrageous if it weren't for its unpatriotic character, anti-gay character, anti-someone-who-died-for-his-country character, or perversion-of-Christianity character. Perhaps they would have found the speech outrageous, but would have imposed a far smaller punitive damages award. If the case had involved an ordinance targeted at funeral picketing, then the jury would have been instructed to focus on non-viewpoint factors, and the verdict (assuming the jury followed the instructions) would have reflected simply a judgment that the people did indeed picket a funeral. Their viewpoints wouldn't have mattered; and if they expressed the viewpoints elsewhere, we would have been confident that the law couldn't apply to them. But the IIED tort offers zero assurance of this. At most the discussion on this thread suggests that if many (not all) of us law professors were on the jury, we would have voted for liability solely based on factors (1) and (2), and would have based the punitive damages based on (1) and (2). But other than wishful thinking or projecting our views on others, what basis do we have for being confident that the jury limited its analysis to those two factors? Isn't it unconstitutional for the IIED tort to allow the jury to consider factors (a) through (e) in addition to, or even instead of, (1) and (2)? Eugene P.S. For purely doctrinal support for the proposition that a verdict cannot stand if it's impossible to tell whether it was based on a constitutionally permissible ground or a constitutionally impermissible one, see [394 Street v. New York, U.S. 576, 594 (1969); but I don't think it's necessary to rely chiefly on that precedent, since the premise strikes me as so clearly sensible. _______________________________________________ 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.
