Privacy

10. What constitutes intentional infliction of emotional distress?

In order to prevail in a suit claiming intentional infliction of emotional distress, a plaintiff must show (1) extreme and outrageous conduct, (2) that is intended to cause and does cause (3) severe emotional distress to another.^[59]  A plaintiff has three years to bring an action for emotional distress, intentional or negligent.^[60]

In a case brought against Hustler magazine by the Rev. Jerry Falwell, the Supreme Court ruled that the First Amendment imposes constitutional limits on emotional distress claims asserted by public officials and public figures.^[61]  Falwell sued the magazine because it published a satirical parody of an advertisement for Campari, an aperitif made in Italy.^[62]  For years Campari had utilized a successful, sophisticated advertising campaign in which celebrities talked about their “first time,” i.e., their first encounter with Campari.  In Hustler’s parody, however, Falwell’s “first time” referred to a sexual encounter with his mother in an outhouse.  The parody portrayed Falwell as a hypocrite and a drunk and his mother as a drunkard and an immoral woman.

Falwell sued Hustler for libel, appropriation of his name or likeness for commercial purposes and intentional infliction of emotional distress. The trial court threw out Falwell’s appropriation claim because the advertisement was a satire that was not intended to convey a commercial message.  The trial court jury found in Hustler’s favor on Falwell’s libel claim because no reasonable person would believe that the statements in the parody were factual.^[63]  However, the jury found in favor of Falwell on his emotional distress claim and awarded him $100,000 in actual damages and $100,000 in punitive damages.  The U.S. Court of Appeals for the 4th Circuit upheld the award, but the Supreme Court, in a unanimous opinion written by Chief Justice William Rehnquist, reversed.^[64]

The Supreme Court’s opinion in Falwell acknowledged that the ad parody published by Hustler was gross, repugnant and offensive but held that even offensive satire directed toward public officials and public figures is protected by the First Amendment unless it includes false statements presented as fact.  Even then, the Court said, the plaintiff must meet the New York Times v. Sullivan standard of proving that the false statements were published with knowledge that they were false or in “reckless disregard’ of their truth of falsity.^[65]  The Court said the Campari ad parody was simply a particularly tasteless example of the kind of political satire that the First Amendment was intended to protect.

The Supreme Court’s opinion in Hustler v. Falwell was particularly welcomed by editorial cartoonists and humor columnists, who frequently use biting satire to convey opinions and criticisms of public officials and public figures. The opinion has no effect, however, on claims brought by persons who are neither public officials nor public figures.

In the 1985 N.C. case of Briggs v. Rosenthal, the parents of a young man who died sued John Rosenthal, a Chapel Hill writer and friend of the deceased, for publishing a poignant reminiscence in which he described some of his friend’s self-destructive behavior.^[66]  The court dismissed the parents’ claim, holding that the “mere publication” of distressing information does not constitute the sort of “extreme and outrageous conduct” required to support an emotional distress claim.^[67]

In a later case, the Court of Appeals, relying on Briggs v. Rosenthal, reinstated an intentional infliction of emotional distress case dismissed by the trial court but affirmed the dismissal of the plaintiffs’ invasion of privacy claims.^[68]  The defendant in the case was Rowan County physician Rudy Busby, one of several physicians who had been sued for medical malpractice.  Although he was found not liable by the jury in the medical malpractice case, Dr. Busby included the names, addresses and telephone numbers of jurors and witnesses in a letter that he placed in every physician’s mailbox at Rowan Regional Medical Center.  Busby referred to the jurors and witnesses as people who have “sued doctors,” “found a doctor guilty” and “others of whom I am leery” but did not include any factual statements that were untrue.

Several of the individuals identified in the letter sued Dr. Busby, alleging that the letter was a warning to the entire Rowan County medical community to punish the jurors and witnesses for their roles in the judicial proceeding. The suit stated claims for intentional infliction of emotional distress, the tort of “outrage,” tortious interference with a contractual relationship, interference with a fiduciary relationship, invasion of privacy, unfair and deceptive trade practices and obstruction of justice.

The Court of Appeals reversed the trial court’s dismissal of the claims for intentional infliction of emotional distress and obstruction of justice.  Despite the offensiveness of Dr. Busby’s actions, the court’s decision flies in the face of protection for communication of truthful, lawfully obtained information and, in particular, the U.S. Supreme Court decision in Hustler Magazine, Inc. v. Falwell.  A small silver lining to the case is the appeals court’s refusal to recognize the tort of outrage.^[69] 

The Court of Appeals' opinion in Busby relied on a 1983 case in which the defendant obtained, posted and circulated 30-year-old court documents regarding relatively minor convictions of the sitting superintendent.^[70]  In that case, Woodruff v. Miller, the Court of Appeals found that the publication was for the apparently vindictive purpose of humiliating and harassing the superintendent and therefore sustained the intentional infliction of mental distress claim.  The court wrote:

That defendant’s conduct, as recorded, was intended to cause plaintiff severe mental distress and in fact did so is so obviously inferable, it need not be discussed; and that defendant’s conduct was extreme and outrageous is equally plain.^[71]

It is noteworthy that the U.S. Supreme Court had not decided the Falwell case when Woodruff was decided, nor did the defendant in Woodruff offer any evidence or file a brief with the Court of Appeals.

References