Liability for Emotional/Economic/Physical Harm

Question 1

elements of IIED

Answer 1

o	Intentional Infliction
	Elements
•	(1) ∆ engaged in extreme and outrageous conduct,
•	(2) ∆ acted intentionally/recklessly,
•	(3) ∆ caused,
•	(4) severe emotional distress

Question 2

rule for public figures and IIED

Answer 2

 rule: public figures/officials may not recover for IIED by reason of publication of certain material without showing that the publication contains a false statement of fact made with actual malice (Falwell)

Question 3

notes on “matters of public concern” in the IIED context

Answer 3

 matters of public concern (Snyder – Westboro Baptist case)
• rule: matters of public interest garner more constitutional protection, and thus no IIED

• speech deals w matters of public concern when it is a subject of legitimate news interest – a subject of general interest and of value and concern to the public
• the arguably inappropriate/controversial character of a statement is irrelevant to the question whether it deals w a matter of public concern
• the court will examine the content, form, and context of the speech
o **no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said

Question 4

how do courts handle NIED

Answer 4

o Negligent Infliction
 very limited and uncertain
 some courts allow recovery in certain special cases
 some courts have flirted with the possibility of broader recovery for negligently inflicted emotional distress, limited only by foreseeability and causation

Question 5

economic harm and BOC

Answer 5

 rule: generally applicable laws do not offend the 1st Am simply because their enforcement against the press has incidental effects on its ability to gather and report the news (Cohen)
• less 1st Am protection is afforded to newsgathering (as opposed to publishing)

Question 6

economic harm and negligence

Answer 6

 rule: the general tort rule that one owes no duty to avoid negligently causing purely economic harm protects media along w other potential defendants
• **public policy and constitutional concerns tilt in favor of the press when mere negligence is alleged

Question 7

economic harm and disparagement

Answer 7

 rule: the owner of the disparaged ppty has a cause of action for pecuniary loss caused by a falsehood that the defendant:
• (1) should recognize is likely to harm the value of the ppty, and
• (2) makes w reckless disregard or knowledge of its falsity

Question 8

general rule for physical harm

Answer 8

o general rule: a person who actually threatens another with physical harm cannot claim the protection of the 1st Am
 **but there is considerable substantive disagreement as to the amount of protection speech requires in physical harm cases

Question 9

physical harm - elements for incitement

Answer 9

 Elements (Brandenburg):
• (1) the act was lawless,
• (2) ∆ advocated such act,
• (3) the publication went beyond “mere advocacy” and amounted to incitement, and
• (4) the incitement was directed to imminent action
o culpability is premised not on defendants’ advocacy of criminal conduct, but on the defendants’ successful efforts to assist others by detailing them the means of accomplishing the crimes

Question 10

physical harm - 2 rules for aiding and abetting

Answer 10

 rule: speech – even speech by the press – that constitutes civil or criminal aiding and abetting does not enjoy the protection of the 1st Am (Rice)
 rule: the 1st Am does not pose a bar to liability for aiding and abetting a crime, even when such A&A takes the form of spoken/written word (Rice)

Question 11

rule for physical harm and negligence

Answer 11

 tort law itself severely restricts liability for negligently causing emotional distress or economic harm

• rule: a publisher is only liable for compensatory damages for negligently publishing a commercial ad if the ad on its face would have alerted a reasonably prudent publisher to the clearly identifiable unreasonable risk of harm to the public that the ad posed (Braun)

o risk/utility balance: a risk is “unreasonable” if it is of such magnitude as to outweigh what the law regards as the utility of the defendant’s alleged negligent conduct
 however, when the harm is physical, negligence law is generally applicable

Question 12

main takeaway from this section

Answer 12

• main takeaway from this section: emotional or economic harm caused by negligence is likely not recoverable; but reckless or intentional conduct causing those harms (or negligent conduct causing physical harm) is likely to be recoverable