My view is simple, and, I would think, quite consistent with First
Amendment principles: (1) Otherwise protected speech can't be regulated
because it's "outrageous," and (2) there's no new First Amendment
exception for outrageous speech that causes severe emotional distress.
This means that nonspeech conduct can constitutionally form the
basis of the IIED tort, and so can speech that falls within an
unprotected category (such as false statements of fact, cf. Hustler v.
Falwell, and threats, so long as the jury is instructed to limit its
outrageousness judgment to such speech, and exclude otherwise protected
speech). Likewise, if there is a First Amendment exception for
harassing telephone calls (a matter to which the Supreme Court hasn't
spoken, see White's dissent in Gormley [1980?]), such speech could form
the basis of liability, too, because it would fit within the new
hypothetical exception. I suppose that in principle speech that is
prohibited by a constitutional content-neutral statute could also form
the basis of an IIED action, though I think it would be clearer to have
the statute authorize civil remedies.
But if speech is otherwise protected -- if the courts haven't gone
through the First Amendment analysis that would justify concluding that
the speech should lack First Amendment protections -- then, no, I
wouldn't leave its continuing protection to a jury applying the broad
and vague outrageousness standard.
Finally, as to stalking, I would want to know exactly what the
prohibition involved is. Some are obviously constitutional, if they
apply only to nonspeech conduct and unprotected speech. Any that are
framed in terms of "emotional stalking" would be pretty obviously
unconstitutional on vagueness grounds. (To my knowledge they aren't
framed that way, but that helps show the difficulty of answering
questions that are focused on a vague term such as "emotional
stalking.") Others may pose a harder call. But if they deserve to be
upheld, they deserve to be upheld without reference to the IIED tort --
some might not need to be limited to behavior that's "outrageous" (even
some non-outrageous stalking behavior might be properly punishable),
some might be unconstitutional even if they're limited to outrageous
behavior, and all should use more precise terms than "outrageous" (as
they tend to do, whatever their flaws).
Eugene
________________________________
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar
Sent: Sunday, November 04, 2007 4:00 AM
To: Law & Religion issues for Law Academics
Subject: Re: The trouble with IIED liability here
If I understand Eugene correctly, intentional infliction of
emotional distress can never be constitutional unless what causes the
distress is pure conduct. So if there are a series of late night phone
calls, then there is speech and so there can be no IIED liability. Even
if the calls are just of the "you effing whore" variety -- protected
profanity -- not fighting words. I suppose conduct like intentionally
almost running someone over but swerving away at the last minute would
be excluded, even for Eugene. But short of that, these cases always
have some speech
And what of stalkers? Can't regulate them either?
So Eugene, do I have it right? If so, under what circumstances,
if ever, would you allow this rarely invoked tort? OR limit stalkers
who do both physical and emotional stalking?
Steve
--
Prof. Steven D. Jamar vox:
202-806-8017
Howard University School of Law fax:
202-806-8567
2900 Van Ness Street NW
mailto:[EMAIL PROTECTED]
Washington, DC 20008
http://iipsj.com/SDJ/
"If we are to receive full service from government, the
universities must give us trained [people]. That means a constant
reorientation of university instruction and research not for the mere
purpose of increasing technical proficiency but for the purpose of
keeping abreast with social and economic change. . . . Government is no
better than its [people]."
William O. Douglas
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