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

2. Emotional Distress Intentional Infliction of Emotional Distress
Negligent Infliction of Emotional Distress

3. Emotional Distress
Being frightened or extremely anxious

4. 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

5. 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

6. Outrageous Conduct
Beyond the bounds of decency tolerated in civilized society

7. 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

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

10. 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

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

12. 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

13. 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

14. 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

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

16. 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

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

18. 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

19. Other Torts Breach of contract Interference with economic advantage
Fraudulent misrepresentation