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

Authors

Clay Calvert, University of Florida Levin College of LawFollow

Document Type

Article

Publication Date

2017

Abstract

This Article examines Hulk Hogan's successful, yet largely overlooked, cause of action for intentional infliction of emotional distress (IIED) before a Florida jury in 2016 in Bollea v. Gawker Media, LLC. In doing so, the Article explores critical factual differences between Bollea and the U.S. Supreme Court's two decisions constitutionalizing the IIED tort, Hustler Magazine v. Falwell and Snyder v. Phelps. Despite such distinctions, the Article discusses the trial court's instruction to the jury to consider a First Amendment-­based, public-concern defense - one closely akin to that in Snyder - on Hulk Hogan's IIED claim. The Article also proposes a jury instruction on the extreme and outrageous conduct element in IIED that would require jurors to consider the substantive value of the speech in question. Finally, the Article suggests that Hulk Hogan's victory for IIED bodes well for revenge porn victims who pursue civil lawsuits pivoting on this cause of action.

Recommended Citation

Clay Calvert, 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, 51 New Eng. L. Rev. On Remand 1 (2017)