Intentional Infliction of Emotional Distress – Hustler v. Falwell.
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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
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?
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?