What Is Intentional Infliction of Emotional Distress?

The First Amendment provides protections for free speech and a free press, but those protections are not unlimited.

Under a legal concept known as “intentional infliction of emotional distress,” certain forms of speech and action – such as repeated racial slurs or a powerful person abusing their power over a subordinate – may not receive First Amendment protections.

What is intentional infliction of emotional distress?

Intentional infliction of emotional distress is deliberate or reckless and extreme action that causes severe emotional harm to another person.

Laws regarding intentional infliction of emotional distress vary by state, but a successful lawsuit typically requires proof of these four elements:

1. The person who inflicted the distress intended the harm or acted with a serious lack of care about the effects.
2. There was “extreme and outrageous conduct,” which various state courts have defined as statements or actions “beyond all possible bounds of decency” or “utterly intolerable in a civilized society.”
3. Such conduct is linked directly to the emotional distress suffered by the target or victim.
4. The distress is severe and goes well beyond the insults, criticism and words considered unkind or hurtful that are often experienced in daily life.

If repeated over a prolonged period, insults or remarks, such as sexual comments made at work or criticisms unrelated to job performance made in front of co-workers, may be enough to support a claim of intentional infliction of emotional distress – although as a single, offhand comment, such actions would likely not fit the definition. And in some jurisdictions, a lawsuit can proceed when filed by a person who is not the subject of the comment or other action – say, the family member of a targeted person.

However, it’s more difficult for public figures to win an intentional infliction of emotional distress lawsuit, and proof of the above four elements may not be enough. There are strong protections around speech involving matters of public concern, public officials and people known widely to the public.

Intentional infliction of emotional distress claims that receive First Amendment protection

Court decisions in recent years have strengthened free speech and free press protection against intentional infliction of emotional distress claims, particularly for those involving opinion on public issues or figures and parody and satire.

A landmark case involved a Kansas church known as the Westboro Baptist Church, pictured above, which believed that “the United States is overly tolerant of sin and that God kills American soldiers as punishment.” Westboro Baptist, founded by Fred Phelps, regularly held public protests, often displaying signs at funerals for civilians and military service members. One sign stated, “Thank God for IEDs [improvised explosive devices],” and another contained a homophobic slur.

The family of a Marine who was killed in Iraq sued, claiming the protest at Lance Cpl. Matthew A. Snyder’s funeral was an invasion of privacy and caused intentional infliction of emotional distress.

In Snyder v. Phelps (2011), the U.S. Supreme Court noted that “speech on ‘matters of public concern’ . . . is ‘at the heart of the First Amendment’s protection.’” The court rejected the family’s intentional infliction of emotional distress claim even as it acknowledged the emotional pain caused by protest signs at their son’s funeral.

Chief Justice John Roberts wrote in the court’s decision, “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

The Snyder decision expanded a 1988 court decision in Hustler Magazine Inc. v. Falwell. In that case, the Rev. Jerry Falwell, leader of the Moral Majority, a politically active religious group, sought damages because of Hustler’s parody of a popular liquor ad that suggested Falwell had engaged in a drunken sexual act with his mother in an outhouse. The court said that the First Amendment requires — much like it does in a defamation case — that a public figure show not only that there was a false statement of fact, but that the false statement was made with “actual malice” in order to win an intentional infliction of emotional distress lawsuit.

RELATED: Parody, satire and the First Amendment

Chief Justice William Rehnquist wrote in the Hustler opinion that parody and satire are meant to be offensive and may well cause distress but that outrageous, severely distressing speech is, indeed, constitutionally protected when it deals with public issues and is said about a public figure. He said that if First Amendment free speech and free press protections did not apply, a jury could act merely “… on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” The First Amendment prohibits viewpoint or content-based censorship or punishment by the government.

Finally, exercising a legal right, even if doing so causes someone to experience extreme emotional distress, would not constitute intentional infliction of emotional distress. For example, a landlord evicting a tenant who has not paid rent in a year, even if that action causes the tenant to lose a job or otherwise experience severe distress, would not result in a successful lawsuit; the landlord had a legal right to evict the tenant.

Intentional infliction of emotional distress claims with no First Amendment protection

Snyder and Falwell involved either the expression of opinions or parody and satire. Courts and legislatures vary on the extent of First Amendment protections against intentional infliction of emotional distress lawsuits in circumstances involving factual material that causes emotional distress.

Is an online news site or broadcast network protected if it publishes an interview containing sensitive details or footage of a murder victim’s remains? Or is it considered “outrageous” — and thus liable to an intentional infliction of emotional distress claim — not to consider that family members of the victims may see the broadcast interview?

About half of states now restrict the publication or posting of autopsy reports or other “death photos” or footage. Some require family permission, over concerns that such images — particularly on the internet — may be inadvertently seen by relatives and friends, causing mental distress.

In a 1991 decision by a Florida court, a family was entitled to a trial on an intentional infliction of emotional distress claim involving a TV station that conducted and broadcast an interview of a police officer holding the skull of a 6-year-old murdered child, which had been identified as the family’s missing daughter. The court found in Armstrong v. H&C Communications Inc. that the broadcast of the interview was an “outrageous” act.

Two years later, a California court allowed an intentional infliction of emotional distress claim in 1993 when the TV show “Street Stories” broadcast video of an interview with a crisis worker shortly after she was allegedly attacked. The court found in Baugh v. CBS Inc. that the conduct was outrageous because the camera crew misrepresented themselves as being from the district attorney’s office in order to gain consent to film the interview, knowing the crisis worker was in a psychologically vulnerable state.

(Since no final judgement is noted in various legal reporting services, both Armstrong v. H&C Communications Inc. and Baugh v. CBS Inc. may have been resolved through arbitration or a private settlement.)

Successful intentional infliction of emotional distress lawsuits can result from other actions beyond those involving the publication of fact-based material.

In 2007, a New York State appeals court upheld an $85,000 award to a same-sex couple over the mental distress resulting from an ongoing property line dispute with neighbors. The court found that for approximately two years, the neighbors had conducted a “relentless campaign of lewd comments and intimidation directed at plaintiffs [the couple] and their lifestyle,” including two mock graves directly facing the couples’ home.

The court further noted: “Although insulting language intended to denigrate a person may not, in and of itself, rise to the required level of extreme and outrageous conduct, liability may be premised on such expressions where, as here, defendants' campaign of harassment and intimidation is constant.”

It concluded the evidence served as proof of the first two elements of an intentional infliction of emotional distress case — “that the conduct of the defendants was extreme, outrageous and intentional” — and ultimately found all four elements present in the case.

A brief history of intentional infliction of emotional distress claims

Prior to the 1930s, there was no standard legal claim based simply on mental distress, as opposed to physical harm. One study said courts feared such a provision would open the “floodgates” of frivolous or minor complaints.

Under the legal theory of the time, mental anguish from threatened physical harm was covered by the crime of “assault,” while criminal conduct resulting in actual physical harm that also caused mental distress brought a charge of “battery.”

But about 90 years ago, intentional infliction of emotional distress as a standalone legal claim gained traction and was accepted by lawmakers and the courts. Advocates at the time argued states already had created some mental distress exceptions unrelated to physical harm.

This legal claim evolved over the years into the concept courts use today to determine those exceptions to free speech where the First Amendment doesn’t apply.