Infliction of Emotional Distress and First Amendment

Intentional infliction of emotional distress upon another person is a civil wrong, for which the victim may recover monetary damages. Because words can inflict emotional injury, there is an inherent conflict between the free-speech guarantee and government imposition of civil liability for this tort. The leading case involving this issue is Hustler Magazine v. Falwell, 485 U.S. 46 (1988).

Hustler Magazine, a pornographic publication controlled by Larry Flynt, published a parody of a Campari liqueur advertisement that lampooned the evangelist Jerry Falwell. The actual advertisements featured interviews of celebrities discussing the first time they tasted Campari. Hustler’s parody used a faux interview with Falwell to portray the first time he had sexual intercourse as a drunken encounter with his mother in an outhouse.

The Supreme Court ruled that Falwell’s suit to recover damages for his emotional injury was barred by the free-speech guarantee. The Court reasoned that public figures such as Falwell could not maintain such suits by proving that the offending speech was ‘‘outrageous,’’ but must prove that it was made with ‘‘actual malice’’: knowledge of its falsity or with reckless disregard for its truth or falsity. The problem with this standard as applied to parody, of course, is that parody is, by nature, intentionally false. Though the Court has not had occasion to rule on the issue, the implication of Hustler Magazine is that private figures may freely recover damages for emotional injuries inflicted by words, subject to other free-speech limits that may be applicable.

CALVIN MASSEY

References and Further Reading

• Post, Robert, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation and Hustler Magazine v. Falwell, Harvard Law Review 103 (1990): 603.

Cases and Statutes Cited

• Hustler Magazine v. Falwell, 485 U.S. 46 (1988)

See also Actual Malice Standard; Falwell, Jerry; Flynt, Larry; Public Figures; Satire and Parody and the First Amendment