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?