Intentional Infliction of Emotional Distress – Hustler v. Falwell

1. Intentional Infliction of Emotional Distress – Hustler v. Falwell • Public officials and public figures can’t sue for IIED “by reason of publications such as the one here at issue” unless they also show the publication “contained a false statement of fact made with actual malice re its truth/falsity.” • SCT seems concerned about: • Outrageousness requirement – too subjective to protect speech/allows punishment because jurors find distasteful or dislike • Unpredictability will chill expression • Intent to cause injury requirement – doesn’t protect speech because lots of political satire is meant to humiliate – can’t control in area of public debate about public figures • Hovering in the background here are clearly same concerns that court had about “seditious libel” prosecutions – vague laws used to punish criticism of officials/suppress public debate based on claim that supposed “tort” has occurred against an individual

2. Does (should) Hustler’sReasoning Extend to Non-public Figures? • Should private citizens have similar restrictions on their ability to sue for IIED when the basis of the tort is speech? • Snyder – protestors near funeral held offensive signs pertaining to the funeral not directed specifically to the deceased. Father (private figure) brings IIED lawsuit • SCT rejects IIED liability • “Whether 1A prohibits holding WBC liable for its speech in this case turns largely on whether that speech is of public or private concernas determined by all the circumstances of the case.” • Court looks at “context, form, and content” of speech to see if is “public concern” • Speech deals with matters of public concern when it can “be fairly considered as relating to any matter of political, social or other concern to the community” OR • When it “is a subject of legitimate news interest; that is a subject of general interest and of value and concern to the public.” • Was SCT right to say WBC was not liable for IIED? • How does ANNA (from Tuesday) fare under these cases?

3. The Constitutionality of 18 USC Sec. 2261A • Does applying the law to Cassidy’s tweets violate the 1A? Why? • The court engages in “as applied” analysis but when can a blogger or someone sending tweets ever be prosecuted under the law? • Private person? • Different statements? • Consider the following: • Anna writes an article about revenge porn for her employer. What if Blake gets his friends to post hundreds of comments on the website where Anna’s article is & also send tweets that are derisive and vaguely violent. • What if Anna posted the article on her own website and the comments appeared there? • Does the court want more direct person-person communication?