Emotional Distress Tort Actions.
In Hustler Magazine, Inc. v. Falwell,1322 the Court applied the New York Times v. Sullivan standard to recovery of damages by public officials and public figures for the tort of intentional infliction of emotional distress. The case involved an advertisement “parody” portraying the plaintiff, described by the Court as a “nationally known minister who has been active as a commentator on politics and public affairs,” as stating that he lost his virginity “during a drunken incestuous rendezvous with his mother in an outhouse.”1323 Affirming liability in this case, the Court believed, would subject “political cartoonists and satirists . . . to damage awards without any showing that their work falsely defamed its subject.”1324 A proffered “outrageousness” standard for distinguishing such parodies from more traditional political cartoons was rejected; although not doubting that “the caricature of respondent . . . is at best a distant cousin of [some] political cartoons . . . and a rather poor relation at that,” the Court explained that “ ‘[o]utrageousness’ 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. . . .”1325 Therefore, proof of intent to cause injury, “the gravamen of the tort,” is insufficient “in the area of public debate about public figures.” Additional proof that the publication contained a false statement of fact made with actual malice was necessary, the Court concluded, in order “to give adequate ‘breathing space’ to the freedoms protected by the First Amendment.”1326
The Court next considered whether an intentional infliction of emotional distress action could be brought by a father against public protestors who picketed the military funeral of his son, where the plaintiff was neither a public official nor a public figure. Based on the reasoning of Hustler Magazine, one might presume that the Times privilege would not extend to the intentional infliction of emotional distress upon a private citizen. However, in Snyder v. Phelps,1327 the Court avoided addressing this issue, finding that where public protesters are addressing issues of public concern, the fact that such protests occurred in a setting likely to upset private individuals did not reduce the First Amendment protection of that speech. In Phelps, the congregation of the Westboro Baptist Church, based on the belief that God punishes the United States for its tolerance of homosexuality, particularly in America’s armed forces, had engaged in nearly 600 protests at funerals, mostly military. While it was admitted that the plaintiff had suffered emotional distress after a protest at his son’s funeral, the Court declined to characterize the protests as directed at the father personally.1328 Rather, considering the “content, form, and context” of that speech,1329 the Court found that the dominant themes of the protest went to public concerns, and thus could not serve as the basis for a tort suit.1330
- 485 U.S. 46 (1988).
- 485 U.S. at 47, 48.
- 485 U.S. at 53.
- 485 U.S. at 55.
- 485 U.S. at 53, 56.
- 562 U.S. ___, No. 09–751, slip op. (March 2, 2011).
- Signs displayed at the protest included the phrases “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.” Slip op. at 2.
- Slip op. at 8 (citations omitted).
- Justice Alito, in dissent, argued that statements made by the defendants on signs and on a website could have been reasonably interpreted as directed at the plaintiffs, and that even if public themes were a dominant theme at the protest, that this should not prevent a suit from being brought on those statements arguably directed at private individuals. Slip op. at 9–11 (Alito, J., dissenting).