Most people know that, in 2016, Terrence “Hulk Hogan” Bollea was awarded $140 million by a Florida jury after successfully suing Gawker Media, LLC for invading his privacy when it released a video of Hogan having sex with a friend’s wife. However, it often goes overlooked that Hogan was also successful in a separate cause of action for intentional infliction of emotional distress (IIED). Professor Clay Calvert explores this aspect of Hogan’s case in his Article, Intentional Infliction of Emotional Distress & The Hulk Hogan Sex Tape: Examining a Forgotten Cause of Action in Bollea v. Gawker Media, the Gap It Reveals in IIED’s Constitutionalization, and a Path Forward for Revenge Porn Victims.
At the outset of his Article, Professor Calvert explores Florida’s legal definition of IIED and its elements, as applied in Bollea. He also describes the constitutional layer of protection for defendants in speech-based IIED claims added by the U.S. Supreme Court in Hustler Magazine v. Falwell and Snyder v. Phelps. Specifically, Professor Calvert utilizes the decisions reached in Falwell and Snyder to explain the tension between IIED and the freedom of speech protected by the First Amendment. Professor Calvert asserts that while these cases strengthened First Amendment protections, they alternatively narrowed the circumstances in which an IIED claim can prevail.
Subsequently, Professor Calvert argues that Bollea fails to fit neatly within the constitutional framework for IIED claims embraced by the Supreme Court in Falwell and Snyder. Professor Calvert stresses the importance of understanding the distinction between the fictitiously opinionated types of speech in both Falwell and Snyder and the objectively factual and truthful speech in Bollea—the contents of a sex tape. Professor Calvert also points out the disagreement between a Florida appellate court and the jury in Bollea when dealing with the amorphous concepts of outrageousness and public concern in IIED claims. The bottom line is, Professor Calvert suggests, that both Falwell and Snyder involved outrageous and offensive expressions of opinions rather than assertions of fact. Thus, Professor Calvert explains, because Bollea does not factually fit within the frameworks of Falwell or Snyder, the key question is whether judges and juries must now consider a First Amendment-based hurdle that a public figure must clear in order to prevail in an IIED claim.
In his Article, Professor Calvert looks to the jury instructions used in the Bollea case, and highlights that they included a First Amendment-based, public-concern defense for IIED and all other torts in the case, not just the privacy claim of “public disclosure of private facts.” Specifically, Professor Calvert explains that two aspects of the jury instruction regarding “legitimate public concern” are striking: the added constitutional layer of speech-based protection for Gawker against the IIED claim, and the disjunctive test for determining whether a public concern exists. Professor Calvert acknowledges that the judge stretched the application of the public-concern defense for IIED claims beyond the narrow circumstances of Snyder, which is what Chief Justice Roberts cautioned against.
Professor Calvert then moves beyond the facts of Bollea to examine whether a First Amendment-based, public-concern or newsworthiness element should be required for proving such an IIED claim when it is pled in addition to a separate public disclosure claim. In doing so, Professor Calvert argues the judge in Bollea was correct to add a public-concern hurdle to Hogan’s burden for IIED recovery in her jury instruction for several compelling reasons. Furthermore, Professor Calvert offers a different jury instruction for the meaning of extreme and outrageous conduct that—when considered in addition to a separate instruction on a First Amendment-based, public-concern defense—would bolster the free speech and press interests in speech-based IIED cases.
In his conclusion, Professor Calvert addresses the relationship between IIED and revenge porn. Professor Calvert notes that the true complicating factor for revenge porn victims is the aspect of consent when initially taking the sexual images. Professor Calvert leaves us with one final noteworthy point: it remains to be seen whether victims of revenge porn will rely on IIED claims more frequently because of the Bollea decision.
Calvert’s Article will appear in Volume 51 of the New England Law Review On Remand.
Contributing Editor: Daniel Williams