I just blogged about why the intentional infliction of emotional distress tort is unconstitutional, at least unless it's limited to otherwise unprotected speech (such as threats or fighting words) -- which it hasn't been. Here I want to explain why it's proper to focus on the constitutionality of the law generally, and not just on whether the Phelpsians' particular (and especially outrageous) speech was constitutionally protected.

As a doctrinal matter, the "overbreadth" doctrine allows such facial challenges to speech restrictions, at least so long as the restrictions are substantially overbroad. Likewise, the "vagueness" doctrine allows facial challenges to vague laws. For the reasons I discussed in my earlier post, the emotional distress tort is indeed substantially overbroad and vague.

And there's good reason for this. First, as I discussed earlier, the emotional distress tort, if upheld, would continue to deter constitutionally protected speech far beyond that which the Phelpsians engaged in, since many speakers could reasonably fear that some jury (or university administrator or judge or other factfinder) will find certain speech "outrageous." As-applied challenges don't suffice to materially diminish this "chilling effect," since many speakers lack the money and -- the tolerance for risk of ruinous liability -- needed to challenge such laws. But by allowing facial challenges, the overbreadth doctrine forces courts and legislatures to narrow overbroad laws, and thus helps minimize the chilling effect.

Second, say that you believe the Phelpsians' speech may indeed be punished on certain grounds, for instance because it condemns a dead person near his funeral. Say that you think the speech is outrageous precisely because of this; and say even that a restriction limited to such speech would indeed be constitutional (more on that later), because the restriction is ideologically neutral, and because it is severely limited in time and place.

The trouble is that the emotional distress verdict gives zero assurance that the jury indeed acted ideologically neutrally, or based entirely (or even chiefly) on the time and place of the speech. Maybe it did act this way -- but it was never told to do so, since it was simply asked whether the speech was "outrageous" and recklessly or deliberately caused severe emotional distress.

The jury could have reasoned the speech was "outrageous" in part because it was harshly unpatriotic, or critical of heroes who fought and died for their country. It could have reasoned the speech was outrageous in part because it was founded on virulently antigay reasoning. It could have reasoned the speech was outrageous in part because it perverted religious (even Christian) thinking for hateful purposes. It could have reasoned the speech was outrageous chiefly because of its message, and not because of its location. And it could have reasoned this entirely consistently with its legal duties, since it was told to decide based on "outrageousness," a concept that is entirely consistent with scrutinizing the viewpoint of the speech, and not just its ideologically neutral offensiveness or its time and place.

So if one thinks that ideological neutrality, and a focus on restricting only speech that is very near a funeral, are what makes punishing the Phelpsians constitutional, one should insist that they be punished under a law that requires juries to decide on these grounds. A decision that simply stems from the jury's finding of "outrageousness," and that could well be based on the viewpoint of the speech, is not a constitutionally sound decision.