The Law of Journalism & Mass Communication Chapter 7 Emotional Distress and Physical Harm: More Media Torts

Emotional Distress Intentional Infliction of Emotional Distress Negligent Infliction of Emotional Distress

Emotional Distress Being frightened or extremely anxious

History of Emotional Distress Tort First, courts did not recognize the tort Then, only if emotional distress resulted from physical injury Later, perhaps if physical symptom (e.g., stomachache) accompanied emotional distress Now, no physical injury needed if defendant’s action was outrageous Also, if another tort (e.g., libel) caused emotional distress

Intentional Infliction of Emotional Distress Plaintiff’s case Defendant’s intentional or reckless conduct Was extreme and outrageous Causing plaintiff’s severe emotional distress And defendant acted with actual malice (if plaintiff is public person) Defense: No defense available

Outrageous Conduct Beyond the bounds of decency tolerated in civilized society

Intentional or Reckless Action Defendant’s action need not be deliberate Could be a reckless action a reasonable person would know could cause emotional distress

Public Plaintiff Public officials and public figures also must prove actual malice Hustler Magazine v. Falwell

Negligent Infliction of Emotional Distress Plaintiff’s case Defendant had a duty to use due care Defendant breached that duty Defendant’s breach caused plaintiff’s severe emotional distress Defendant’s breach was proximate cause of plaintiff’s severe emotional distress Defense: No defense available Some states — but not all — require physical harm to accompany emotional distress

Negligent Infliction of Emotional Distress Physical Harm Two possible tests courts may apply Negligence Incitement

Physical Harm The Negligence and Incitement Tests Should Work Together The plaintiff argues The defendant had a duty to use due care The defendant negligently breached that duty The breach caused the plaintiff physical harm, and The defendant proximately caused the harm

Physical Harm The media defendant argues The First Amendment protects the defendant The plaintiff then argues the incitement test should be applied The defendant has no First Amendment protection because the defendant incited someone to cause harm The judge decides whose argument wins

Physical Harm To prove incitement, the plaintiff must show The defendant intentionally or recklessly Intended to cause harm, and Imminent harm was likely to result from the defendant’s actions

Physical Harm Negligence Foreseeability: Should the defendant have foreseen the plaintiff’s emotional injury?

The Soldier of Fortune Cases Norwood v. Soldier of Fortune “GUN FOR HIRE” Foreseeable that ads could lead to physical injury Eimann v. Soldier of Fortune “EX-MARINES” Facially innocuous ad Braun v. Soldier of Fortune Unreasonable risk of causing violent crime

Proximate Cause Direct relationship between defendant’s action and plaintiff’s injury

Incitement Plaintiff must show defendant intentionally meant harm to result Plaintiffs rarely win if court applies incitement test However, in Hit Man case, court said publisher intended harm to result Plaintiff also must show: Media content would result in unlawful action immediately after exposure to content It is likely media content would cause violence

Other Torts Breach of contract Interference with economic advantage Fraudulent misrepresentation