The Intentional Infliction of Emotional Distress Tort and the Freedom of Speech:

I'm blogging today about the recent $10.9 million verdict against the Phelpsians for their offensive picketing 1000 feet away from a military funeral. Since there are lot of doctrines and questions in play here, I'll try to post separately about several separate aspects of the issue. I should also say up front that I think Phelps' speech (including both its content and the choice of its time and location) is disgusting. The question, though, is whether particular restrictions on this speech -- like restrictions on other disgusting speech -- are consistent with the First Amendment.

Let me begin by focusing not on the Phelpsians' speech, but rather on the laws under which the verdict was entered, starting with the tort of intentional infliction of emotional distress. This tort basically allows recovery when the defendant engages in (1) outrageous speech or conduct that (2) causes severe emotional distress to the defendant, and (3) the defendant intends to cause such distress, or is aware of a high probability that the speech or conduct will cause such distress.

It seems to me that this tort, as applied to speech, is unconstitutionally vague and overbroad. If narrowed by courts to cover only conduct and otherwise unprotected speech (such as reckless falsehoods, threats, "fighting words" [more on these later], and other speech that falls within the exceptions to First Amendment protection), it would be permissible. But until it is so narrowed, it is unconstitutional.

The Supreme Court in fact held the tort unconstitutional as to speech on matters of public concern about public figures, in Hustler v. Falwell. But though the Court had no occasion there to discuss such lawsuits brought by private figures (Falwell, the plaintiff, was clearly a public figure), the Court's reasoning amply applies here:

[I]n the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment... [E]ven when a speaker or writer is motivated by hatred or ill will his expression [is] protected by the First Amendment ....

If it were possible by laying down a principled standard to separate [outrageous speech] from [protected speech], public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description "outrageous" does not supply one. "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. An "outrageousness" standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience.

And indeed the Court was absolutely right about the "inherent subjectiveness" of the "outrageousness" standard. I imagine that nearly any jury would find picketing of soldiers' funerals, with signs such as "Thank God for dead soldiers," to be outrageous. But the law would potentially cover much more than such speech -- and, if upheld under the First Amendment, it would apply even in cases where juries aren't involved, such as university expulsion decisions under campus speech codes and the like. Say a university bans posting the Mohammed cartoons on the grounds that they are so "outrageous" that they recklessly inflict "severe emotional distress" on Muslim students (who aren't, of course, public figures). Or say it bans speech that's harshly critical of race-based affirmative action, and suggests that people admitted under such programs are not adequately qualified to be at the university.

Or say a plaintiff sues a newspaper that published a letter to the editor stating, "We can stop the murders of American soldiers in Iraq by those who seek revenge or to regain their power. Whenever there is an assassination or another atrocity we should proceed to the closest mosque and execute five of the first Muslims we encounter. After all this is a 'Holy War' and although such a procedure is not fair or just, it might end the horror. Machiavelli was correct. In war it is more effective to be feared than loved and the end result would be a more equitable solution for both giving us a chance to build a better Iraq for the Iraqis." (I should stress that I find this view repugnant, but it seems to me that it must be protected by the First Amendment.)

In all these cases, a reasonable factfinder could indeed conclude that the speech is "outrageous" and recklessly inflicts "severe emotional distress" on some private figures. You or I might disagree, but we should expect some government actors, whether jurors or university officials, to take such a view. And if the intentional infliction of emotional distress could apply to such speech, then the speech would be effectively stripped of constitutional protection.

Moreover, allowing the punishment of speech under such a vague standard would deter even more speech than would actually be punished. As the Court held in Grayned v. City of Rockford (paragraph breaks added),

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.

Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to "'steer far wider of the unlawful zone' ... than if the boundaries of the forbidden areas were clearly marked."

All these problems -- especially the deterrent effect ("Third") -- are implicated by the vague "outrageousness" standard.

In the next post -- even if my criticisms of the Intentional Infliction of Emotional Distress tort are generally sound, why not look at the law as applied in this case, rather than looking at the law generally?

irwin (mail):
1) Does the tort of "intentional infliction of emotional distress" relate to speech, or does it relate to conduct?

2) How, if at all, do you propose making the standard not unconstitutionally vague?

3) Can you give me an example of some conduct which you feel would be compensible under the tort of "intentional infliction of emotional distress"? Or, is any conduct at all, no matter what, "speech" which you feel is protected by the 1st amendment?

4) If X, a millionaire, murders and tortures Y, a 25 year old mother, in front of Y's children, and Y's children are emotionally traumatized by this, would you regard this as a viable cause of action for intentional emotional distress?
11.8.2007 7:44am
Libel suffers the same problems and co-exists happily with the 1A by virtue of the requirement that it be directed at a particular target. In fact that would seem to be a quite reasonable way to read meaning into the idea of recklessness and intent. Likewise, "outrageousness" might reasonably require a target.
11.8.2007 10:29am
Eugene Volokh (www):
Aultimer: Libel coexists with the First Amendment by virtue of the requirement that it involve false statements of fact, which lack constitutional value. Here, the emotional distress tort was used to punish not factual falsehoods, but the expression of opinions; and, as Gertz v. Robert Welch held, under the First Amendment there's no such thing as a false opinion.
11.8.2007 10:37am
The constitutional value of speech that intended to cause severe emotional distress is what, exactly? That valuable ideas may not be susceptible expression any other way? Doesn't the fact that we accept time, place and manner restrictions suggest that we don't buy that reasoning?
11.8.2007 11:15am
Your series of posts on liability strike me as more in the nature of amicus briefs for the defendants, than analyses of the current state of the law.

First, it is somewhat misleading to say that the Court in Hustler "had no occasion . . . to discuss such lawsuits brought by private figures." The question of the constitutionality of the IIED tort was squarely before the Court. If the Court had thought the tort was unconstitutional in all contexts, it could have so held. Instead, it limited its holding to public figures, making explicit reference to defamation law, where different standards apply to public and private figures. While Hustler certainly does not preclude a holding that the IIED tort is unconstitutional as applied to private figures, it suggests that it is not, and numerous lower courts have agreed.

Second, Gertz said there is no such thing as a false opinion, but it did not say that statements of opinion are never actionable. They are just not actionable as libel. As you have acknowledged in the past, courts have upheld IIED judgments based on opinions (eg, the "Ugliest Bride" contest). You may think these cases are wrongly decided, but they are the majority view.

The broad acceptance of the IIED tort, coupled with the Supreme Court's limitation of the tort as applied to public figures in Hustler, suggests that under current law, the First Amendment does not prohibit the imposition of liability for highly abusive insults directed at private individuals.

The trouble with the Phelps verdict, it seems to me, is not that the well-established tort of IIED is unconstitutional on its face, but that the facts did not support the conclusion that the defendants directed their abuse solely at the private plaintiffs. Rather, the private plaintiffs were injured as a result of the defendants' public protest -- which plaintiffs did not even see firsthand. It would be straightforward, I think, to hold that the IIED tort (if it is to avoid the NY v. Sullivan limitation imposed in Hustler) requires a direct insult to a specific private figure, rather than the infliction of emotional distress on private individuals as a byproduct of speech on public concern.

Thus, funeral protesters who directly insult the deceased could be held liable, but those who indirectly cause distress to the family by protesting about broader issues cannot.
11.8.2007 11:50am
markm (mail):
"The constitutional value of speech that intended to cause severe emotional distress is what, exactly?"

If we allow people to sue on the basis that speech hurt their feelings, we give hypersensitive hysterics a veto on all public speech. And, with all due respect to the plaintiff's grief, anyone who claims to suffer $2.9 million worth from seeing a news report of speech uttered 1,000 feet away is a hypersensitive hysteric or pretending to be one.
11.8.2007 12:24pm
mark m.-

There's some difference between your strawman "speech [that] hurt their feelings" and what I wrote - "speech that intended to cause severe emotional distress".

In particular there's the intent element and the severity element. I'm not advocating for a tort of "accidental infliction of a spot of discomfort."

I do agree that $2.9M seems out of proportion to the harm and damages in other cases, but I wasn't on the jury.
11.8.2007 2:17pm
mmm (mail):
Free speech isn't speech without consequences. It seems very clear that some speech may in fact inflict actual damages on an otherwise innocent individual. This is especially true for non-factual opinion speech directed at an otherwise private person. Why is the innocent target the party that must bare responsibility for the damage?
11.8.2007 3:39pm
markm (mail):
Aultimer: Have you got a way to determine the difference between "speech [that] hurt their feelings" and "speech that intended to cause severe emotional distress", aside from letting the case go to a jury - which may award damages just from dislike of the defendant rather than according to the law?
11.8.2007 3:58pm
Seymour Paine:
I thought that part of the suit was based on the fact that Phelps' speech was quite particular. Not that they were hoping death would befall US soldiers but that this man's particular son died as a result of America's lax policy toward gay people and further that Phelps' web site included references to the man as well as his son.

If so, would that be a way out of the difficulty Eugene cited: that is, the chilling power of the Phelps' decision. If, in the examples he gave, the publication of the Mohammed cartoons would not be affected because no private individual was singled out. But (to use another example he used), if someone says, apropos of race-based affirmative action, not that blacks are unqualified, but particular black students (and naming them) were unqualified. Wouldn't that be more like the Phelps' situation?

My point is that Phelps' action was particularized regarding a private individual; as such, they seemed to be intentionally inflicting pain on this soldier's father, mentioned by name, rather than a class of people.

Am I off base here?
11.8.2007 4:26pm
markm (mail):
Seymour: So what? If you go on a public forum to rant about Bill Clinton's sexual predation, aren't you intentionally inflicting pain on Bill and Hillary?

Perhaps you think the difference is between public and private figures, but there is plenty of political debate that winds up intruding on private persons. If you want to talk about "welfare queens", it's more effective if you can find a particular person. Some Democrats wanted to talk about children without medical insurance and found a particular child to talk about - and then their opponents ripped into that family's finances, showing that they appeared to have sufficient income to buy insurance but had chosen not to.

We need an objective bright line rule that protects such speech by requiring the judge to throw the case out, not to let it go to a jury to make subjective judgments about what is "outrageous". To most people the Phelpsian's message is outrageous, no matter how they say it or how they get it out - and a judgment for getting it out 1,000 feet from the funeral imposed a content-based restriction.
11.9.2007 9:27am
Aultimer: Have you got a way to determine the difference between "speech [that] hurt their feelings" and "speech that intended to cause severe emotional distress", aside from letting the case go to a jury - which may award damages just from dislike of the defendant rather than according to the law?

No, do you have a way to determine the difference between "guilt beyond a reasonable doubt" and "preponderance of the evidence" aside from letting the case go to a jury?
11.9.2007 12:06pm
TDPerkins (mail):
Does Prof. Volokh think Chaplinsky v. New Hampshire was wrongly reasoned?

If you do Sir, I cannot agree.

In fact, merely that few if any have risen to the bait does not mean the Phelpsians speech is not intended to be a "direct personal insult" by which they can pretext a lawsuit and thereby obtain funds.

Certainly they are not any "essential part of any exposition of ideas*" which are "a step to truth*" and "any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.*"

*Quotes from Murphy in Chaplinsky.

In short, are you of the opinion anyone should be legally able to say anything to anyone in any vaguely public venue, even when affecting an inherently nonpublic event such as a private funeral?

And if you are not comfortable with juries deciding the issue, are you comfortable with juries deciding to protect persons interfering with such speech, as is likely to happen when the Phelpsian's "speech" meets that test?

I do not feel it is the job of government to protect any and all speech at any time without regard to the burden to the public peace.

They can shout from their porch what they want, subject to the same decibel restrictions as anyone else. From streetcorners there can constitutionally be limits.

Yours, TDP, ml, msl, &pfpp
11.11.2007 10:42am
TDPerkins (mail):
To be the more clear, I can agree the case at hand was wrongly decided insofar as one point at issue is concerned, emotional damages.

But I feel disallowing bans on such speech is requiring the public to afford the Phelpsians a podium, where there is clearly no requirement we afford them a printing press, in short, it is constitutionally acceptable that such all but perfectly repugnant speech be excluded from the involuntarily public sphere of the street--who should have to leave their route to avoid them? For those who use the street, this is compelled hearing of speech.

How's that constitutional?

Yours, TDP, ml, msl, &pfpp
11.11.2007 11:04am
Michael rutman (mail):
An interesting point but I believe it is missing a key issue.

The fact is that this was at a private event. I believe many of the stories missed the key issue of whether or not this was at a public venue or a private one.

If you intrude on a private event, disrupt it, and deliberately cause emotional distress then free speech does not enter into it.

To simplify it, it's protected to burn an Israeli flag on campus, it is not to do it in a temple during a Bar Mitzvah.
11.11.2007 2:27pm
R Finlayson (mail) (www):
In case this ridiculous right to their disgraceful conduct continues, will normal people have the right to throw harmless but foul smelling things at them.
11.11.2007 9:02pm
Milhouse (www):
Michael rutman, it is permitted to do it on public property outside the temple, or near a chupah being held in a public place, so long as the burners are not obstructing traffic and not breaking any fire regulations.
11.12.2007 1:05am
GT327 (mail):
As suggested by the examples given, it is a troublesome exercise to circumscribe punishable speech. But there is an important difference between the hypothetical facts and those of the Phelps case. While your note advances scenarios in which offensive speech is arguably protected by the First Amendment, the Phelps facts go far beyond mere speech and subjective determinations concerning the degree to which it is offensive.

There would be no case if Phelps had uttered the same offensive speech in his pulpit or in a newspaper ad. That would be the direst analog to the hypotheticals you advance. But Phelps did more -- Phelps targeted private figures in a fashion calculated to be so offensive that it would draw publicity.

Thus, it is not the offensive speech per se that is actionable, but rather the targeting of private citizens to be the butt of intentional conduct so outrageous that it is sure to get the actor into to the press.
11.12.2007 6:51pm