The Truth Hurts:
Intentional Infliction of Emotional Distress
As a Cause of Action Against the Media
Karen M. Markin, Ph.D.
University of Rhode Island
70 Lower College Road, Suite 2
Kingston, RI 02881
voice: (401) 874-5576
fax: (401) 792-9089
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Prepared for presentation to the
at the annual convention of the
Association for Education in Journalism and Mass Communication
August 1999, New Orleans
The Truth Hurts: Intentional Infliction of Emotional Distress
as a Cause of Action Against the Media
Television news magazine "Prime Time Live" sent an undercover reporter to
investigate a business offering psychic advice to the public via a "900"
telephone number. ABC hid cameras and secretly recorded workplace activities and
conversations, then aired the footage in an episode called "Hello, Telepsychic."
Before long, the television network found itself saying hello to a jury, which
awarded damages to two employees of the psychic-by-phone business.
The telepsychics succeeded on a claim of intentional infliction of emotional
distress. Although jury awards in such cases are still a rarity, claims of
intentional infliction against the media are not. The number of published
opinions in state and federal courts in just the past few years equals the
number filed from the beginning of the century to the mid-1980s, when the last
scholarly article on the topic was published. In roughly one out of seven of
the recent cases, plaintiffs have cleared the summary judgment hurdle.
Intentional infliction is an active area of the law, and some plaintiffs have
found a sympathetic ear in court.
It is an active area of the law because those who wish to sue the media see
other legal avenues becoming dead ends. With broad definitions of newsworthiness
and courts' reluctance to second-guess editors as to what is or is not of public
interest, it has become extremely difficult for anyone to win an invasion of
privacy lawsuit against the media, except for appropriation. Similarly, the
broad constitutional protections available in the area of libel law make it hard
for plaintiffs to win. But the intentional infliction tort does not contain
any sort of "newsworthiness" or "public interest" defense, largely, of course,
because it was not developed and conceived of as a publication tort.
Dicta in judicial opinions yield clues as to why plaintiffs are finding a
sympathetic ear in court. When plaintiffs were allowed to proceed with their
claims, it was in cases where the court portrayed the media as profit-hungry
providers of entertainment or other content totally devoid of public interest.
They were neither gathering nor disseminating news. First Amendment protections
for newsgathering are limited, but they are nonexistent for the gathering of
material for the "voyeuristic titillation" of the viewing audience, as one court
put it. In other words, the media had strayed from their traditional role as
informers of the electorate - the role that is at the core of First Amendment
protections. Media critics have observed a recent transformation of news into
entertainment and have decried increasingly intrusive newsgathering
techniques, but the media have ignored these complaints. Claims of intentional
infliction may force them to listen.
This paper will begin by briefly tracing the history of the tort of intentional
infliction and discussing its central elements. Next, it will examine claims of
intentional infliction against the media decided over the past 10 years. This
examination includes analysis of the reasoning courts have used in these cases,
as well as generalizations about plaintiffs and their reasons for filing suit.
Having shown who is likely to file suit, the typical circumstances for a suit,
and the probable court response, it concludes with recommendations to help news
organizations to avoid such claims and to help courts reduce the number of
A Brief History of the Tort
Academics, rather than courts, were the driving force in the development of the
tort of intentional infliction. According to the 1934 Restatement of the Law
of Torts, recovery was not permitted for emotional injury, even when
intentionally inflicted, if the defendant's conduct did not otherwise amount to
a tort. Intentional infliction was introduced in law reviews in the 1930s and
1940s. The most influential of these was Calvert Magruder's 1936 article in
Harvard Law Review. He began by noting that "the common law has been
reluctant to recognize the interest in one's peace of mind as deserving of
general and independent legal protection, even as against intentional
invasions." But in the course of the article, he showed that legal
protection for mental and emotional tranquillity, as it was called, had begun to
develop. He predicted the emergence of a broad principle to govern these cases;
it would hold liable someone who, without just cause or excuse, and beyond all
bounds of decency, purposely caused a severe disturbance to another's emotional
tranquillity. As will be shown later in this paper, a four-part test for
intentional infliction has, in fact, emerged in the years since Magruder's
article was published.
Intentional infliction was defined by the American Law Institute in its
Restatements beginning in 1948. California became, in 1952, the first state
to recognize intentional infliction as a freestanding cause of action; now most
jurisdictions recognize it as such. But it is not a settled area of the law:
The Restatement notes that the law of intentional infliction is still being
developed, and that the limits of the tort have yet to be determined.
Despite the unsettled nature of this area of the law, it has attracted little
scholarly interest. A comprehensive analysis of the tort, by Daniel
Givelber, was published in 1982, in which he found that the doctrine could not
be consistently defined. "The tort," Givelber wrote, "provides recovery to
victims of socially reprehensible conduct, and leaves it to the judicial process
to determine, on a case-by-case basis, what conduct should be so
Observers have noted that the protection offered by the tort of intentional
infliction can open the door to litigation over trivialities and bad
manners. But, according to Givelber, it has provided justice in specific
cases. It has been used successfully to counter the more outrageous
high-pressure methods of collection agencies and other creditors; the bullying
tactics of insurance adjusters seeking to force a settlement; and the harassment
meted out by landlords seeking to evict unwanted tenants. "The doctrine has
typically been invoked," Givelber wrote, "and is likely to continue to be
invoked, on behalf of the noninstitutional, nonprofessional party to a variety
of significant economic and commercial relations. ... Although there is little
evidence that this tort will ever provide the basis for principled adjudication,
it has provided and probably will continue to provide the basis for achieving
situational justice." Anyone concerned about First Amendment freedoms can
quickly see that this tort, with its lack of definition, can pose a threat to
news outlets, given that they must report on the disturbing and controversial
issues of the day.
Givelber did not discuss intentional infliction as a cause of action against
the media, but Robert E. Drechsel did in a 1985 study in which he discerned four
categories of cases based on journalistic content. They were (1) thoughtless
reports, such as identification of a rape victim during public court
proceedings; (2) accurate reports that are likely to be upsetting to the
individuals discussed in them, such as a report of a person's death from a drug
overdose; (3) reports that subject people to fear of physical harm, such as
reporting the name and address of a witness to a crime while the suspect was
still at large; and (4) reports that are inaccurate and seemingly harmless, but
upsetting to the individual discussed in them, such as a photograph that makes
the subject look overweight. "A thread common to all four of these categories is
an attempt to use the courts to legally punish what until recently might merely
have been considered unfortunate breaches of journalistic ethics," Drechsel
observed. "Inaccurate, insensitive, knee-jerk reporting has long been a concern
of the journalism profession itself." News organizations evidently did not heed
Drechsel's words, because the types of content that gave rise to the suits
discussed in his paper have continued to prompt legal action. However, in the
years since Drechsel's study, plaintiffs have accused the media of a new form of
intentional infliction: newsgathering conduct that they perceive as outrageous.
This moves the dispute outside the well-established legal protections for the
content of news reports and into the much more limited realm of protections for
newsgathering. These plaintiffs have had some success, albeit limited, in the
The U.S. Supreme Court in 1987 addressed a claim of intentional infliction of
emotional distress prompted by media content. But that decision, Hustler
Magazine v. Falwell, was decided on narrow grounds, and left many avenues
open for claims against the media. This is the case in which nationally known
minister Jerry Falwell objected to an ad parody published in the well-known skin
magazine Hustler. The parody indicated that Falwell had "a drunken incestuous
rendezvous with his mother in an outhouse." In small type at the bottom of the
page was the disclaimer, "ad parody - not to be taken seriously. The magazine's
table of contents also listed the ad as "Fiction; Ad and Personality Parody."
 Writing for the Court, Chief Justice Rehnquist framed the issue very
This case presents us with a novel question involving First Amendment
limitations upon a State's authority to protect its citizens from the
intentional infliction of emotional distress. We must decide whether a public
figure may recover damages for emotional harm caused by the publication of an ad
parody offensive to him, and doubtless gross and repugnant in the eyes of
Rehnquist thus limited the analysis to a specific situation: a public figure
claiming intentional infliction on the basis of an ad parody, that is, a
particular type of media content. The Court then rejected Falwell's claim that,
because the message was intended to inflict emotional distress, was outrageous
and did in fact cause emotional distress, it was of no constitutional
significance whether the message was fact or opinion, true or false. Rather, the
First Amendment prohibited such a conclusion in the area of public debate about
public figures. The Court was careful to limit its ruling to "the publication of
a caricature such as the ad parody here," noting that a decision in favor of the
defendant would subject political cartoonists and satirists to damage awards
without any showing that their work falsely defamed it subject. It
ultimately held that "public figures may not recover for the tort of intentional
infliction of emotional distress by reason of publications such as the one here
at issue without showing in addition that the publication contains a false
statement of fact which was made with actual malice." Because of the narrow
grounds on which it was decided, Hustler v. Falwell was seldom mentioned in the
cases identified for this study.
Central Elements of Intentional Infliction
The Restatement (Second) of Torts provides this basic statement of the tort's
requirements: "One who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is subject to liability
for such emotional distress, and if bodily harm to the other results from it,
for such bodily harm." As applied by the courts, it consists of four
elements: (1) the defendant's conduct was intentional or reckless; (2) the
conduct must be outrageous and intolerable; (3) the defendant's conduct must
cause the plaintiff emotional distress; and (4) the distress must be severe.
Outrageousness is defined in the Restatement as conduct "so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community. Generally, the case is one in which the recitation of the facts to an
average member of the community would arouse his resentment against the actor,
and lead him to exclaim, 'Outrageous!'"
The earliest indications of a separate cause of action for anything like
intentional infliction were in cases holding a common carrier liable for
insulting a passenger. Indeed, a line of cases deals with recovery for insult
and indignity. However, Prosser and Keeton have noted that "Liability of course
cannot be extended to every trivial indignity." They go on to say;
There is still, in this country at least, such a thing as liberty to express an
unflattering opinion of another, however wounding it may be to the other's
feelings; and in the interest not only of freedom of speech but also of
avoidance of other more dangerous conduct, it is still very desirable that some
safety valve be left through which irascible tempers may blow off relatively
There is the further, and still more significant, evident and serious danger of
fictitious claims and vexatious suits in such cases.
This study will show that, although freedom of speech is generally protected in
intentional infliction suits against the media, the danger of vexatious suits
that Prosser and Keeton warn about has been realized.
One of the most notorious recent claims of intentional infliction against a
non-media defendant was Paula Jones' sexual harassment case against President
Clinton for events that allegedly occurred when he was governor of Arkansas and
she was a state employee there. Intentional infliction was one of several
causes of action in the suit; all were unsuccessful. The court said that while
the sexual encounter Ms. Jones described might be considered "odious," it did
not meet Arkansas' standard for establishing outrage. In intentional
infliction cases involving the media, the courts often made similar rulings.
They acknowledged that the behavior at issue was indeed odious, but not
outrageous as a matter of law. As Givelber observed, intentional infliction
differs from most traditional intentional torts in one key way: It provides no
clear definition of the prohibited conduct. The term "outrageous" represents an
evaluation of behavior and thus fails to offer clear guidance to actors and
judges. This lack of definition will become apparent in the review of cases
below. In the vast majority, courts decided that no outrageous conduct took
place. And in the few instances in which courts said outrageous conduct may have
taken place, they provided no definition, test or criteria that would give the
law in this area more predictability.
Courts Reckon with Intentional Infliction and Media Defendants
The rest of this paper is devoted to the discussion of intentional infliction
claims against media defendants only. It is a practical necessity to limit the
number of cases considered, so the study is restricted to decisions published
from 1990 to the present (a total of 57 cases), with an emphasis on the past
five years. This section critically analyzes the reasoning courts used when
deciding claims of intentional infliction against the media, in an effort to
determine whether they are appropriately balancing the media's interest in free
expression and the plaintiff's interest in not being harmed by media messages.
The nine recent cases in which plaintiffs managed to clear the summary judgment
hurdle are discussed first, because this admittedly limited success is a new
A Sympathetic Ear for the Plaintiff
Newsgathering. Four of the nine cases in which plaintiffs cleared the summary
judgment hurdle stemmed from the newsgathering behavior of television
journalists rather than from the content of a media report. In deciding these
four cases, the courts applied the four-pronged test for intentional infliction
set forth in the Restatement, which is commonly used for non-media cases, and
found that the newsgathering behavior at issue could be construed as outrageous.
The outrageousness prong has been the stumbling block for most intentional
infliction claims against the media. But most claims have been based on the
content of the report, not on newsgathering behavior, and courts have been
reluctant to label media content outrageous, even when they have not explicitly
discussed First Amendment issues. In contrast, the media are on more dangerous
turf in claims about newsgathering, because the First Amendment provides only
limited protection for such activity.
One of the four newsgathering cases led to the U.S. Supreme Court's recent
decision in Wilson v. Layne. This decision may make it easier for plaintiffs to
proceed with intentional infliction claims in some cases, even though it did not
explicitly consider this issue. The Court in Wilson held that a media
"ride-along" in the home violates the Fourth Amendment. Lower courts dealing
with claims of intentional infliction stemming from ride-along reporting based
their decisions on whether such newsgathering was tortious, and were divided on
the issue. The Court's ruling that these ride-alongs violate the Fourth
Amendment removes another hurdle for plaintiffs.
The background to Wilson is extensive and not entirely relevant to this
discussion of intentional infliction. The following discussion focuses on the
most pertinent facts and issues from this extensive background: The U.S. Fish
and Wildlife Service investigated in 1993 allegations that rancher Paul W.
Berger poisoned and shot eagles, a protected species. The wildlife service
obtained a search warrant for the Berger ranch and, in an effort to publicize
its efforts to combat environmental crime, entered a written agreement with CNN
to allow journalists to accompany the agents who executed the warrant. The agent
who approached Berger's home was wired with a hidden CNN microphone that
transmitted live audio to the CNN technical crew. CNN later broadcast a news
story about ranchers killing predators, which included footage and sound
recordings made in the house. Berger, who did not know the agent was "wired,"
filed a suit, Berger v. Hanlon, claiming intentional infliction, as well as
violation of his Fourth Amendment right against unreasonable search and
seizure. The district court ruled that Berger did not have a Fourth
Amendment claim and granted summary judgment for CNN. Then, relying heavily on
the fact that no tortious conduct had occurred, the district court also granted
CNN summary judgment on the intentional infliction claim.
But Berger appealed and the Ninth Circuit reversed on both these claims.
It held that a search videotaped by commercial television cameras was indeed
unreasonable and the officers unprotected by qualified immunity. In dicta, the
court repeatedly referred to CNN's work product as "commercial programming,"
"television entertainment" and "commercial television" - an apparent
effort to distinguish it from legitimate news dissemination that might be worthy
of some First Amendment protection. The Ninth Circuit remanded the intentional
infliction claim to the district court for reconsideration. The defendant agent
petitioned the U.S. Supreme Court for a writ of certiorari.
Separately, the Fourth Circuit considered another ride-along reporting case,
Wilson v. Layne, and concluded that the officers involved had not violated an
individual's Fourth Amendment rights by allowing the media to accompany them in
the execution of an arrest warrant. The plaintiff petitioned the U.S. Supreme
Court for a writ of certiorari. The Court consolidated the two cases and granted
certiorari, noting the split between the circuit courts. It limited its
review to official rather than media liability issues, and held that "it is a
violation of the Fourth Amendment for police to bring members of the media or
other third parties into a home during the execution of a warrant when the
presence of the third parties in the home was not in aid of the execution of the
warrant." In light of this decision, appellants Berger and Wilson have
stronger arguments for their intentional infliction claims.
Kersis v. Capital Cities/ABC Inc. , decided in 1994 by a California
Superior Court, is the case that resulted in a jury award for the plaintiffs.
ABC news magazine "Prime Time Live" sent reporter Stacy Lescht undercover to
investigate Psychic Marketing Group, which offered psychic advice to the public
via a "900" telephone number. ABC hid cameras at the business premises to
secretly record workplace activities and conversations. These cameras were
trained from time to time on plaintiffs Naras F. Kersis and Mark Sanders, who
worked as telephone counselors for Psychic Marketing. "Prime Time" broadcast an
episode titled, "Hello, Telepsychic," which included some of this footage. The
plaintiffs filed suit in Los Angeles County Superior Court, alleging intentional
infliction, among other claims. ABC moved for summary judgment, but the court
declined. Critical to the court's decision on the intentional infliction claim
was California's anti-eavesdropping statute. In this statute, the "Legislature
made an exception for law enforcement agencies in using concealed electronic
recording devices, but chose not to make one for the media," the court
noted. A trier of fact, the court said, could properly determine that the
California Penal Code defines the outer "bounds of that usually tolerated in a
civilized society." The court issued its decision in Kersis in April 1994.
In July 1994, a jury awarded Kersis $225,000 in compensatory damages and
$225,000 in punitive damages. Plaintiff Sanders was awarded $335,000 in
compensatory damages and $300,000 in punitive damages. In addition, $678 in
punitive damages were assessed against defendant Lesch, the reporter, and $1,800
against the man who posed as her boyfriend on the assignment.
KOVR-TV Inc. v. Superior Court (Whittle), decided in 1995 by a California
appellate court, also involved a television journalist entering private
property, but this time without law officers. In this case, a woman murdered her
two children, ages 6 and 3, and then committed suicide. Reporter Mark Saxenmeyer
of KOVR-TV and a cameraman arrived on the doorstep of the dead woman's neighbor.
In the neighbor's home were three children, ages 11, 7 and 5, but no adults.
With "cameras rolling," Saxenmeyer asked the children what had happened next
door - even though he knew the children were unaware of the deaths and not
accompanied by an adult. Saxenmeyer then told the children about the deaths "in
such a manner as to cause the children emotional distress so that their visible
emotional distress would be demonstrative to the TV audience." A count of
intentional infliction of emotional distress, among other claims, was filed on
behalf of three children.
KOVR-TV did not contest that the children suffered severe emotional distress;
rather, it claimed that reporter Saxenmeyer's disclosures to the children about
the murders and suicide next door did not constitute extreme and outrageous
conduct. The court disagreed. "The videotape reveals an uninvited intrusive
encounter by adult strangers with children of tender years not in a public place
but in their home," the court stated. Nor was it swayed by the fact that the
videotape was never broadcast. "The issue here is whether defendants have
negatived [sic] any reasonable inference that Saxenmeyer's conduct was
deliberately calculated or, or recklessly undertaken, to elicit a 'newsworthy'
reaction, and if so whether such conduct exceeds the bounds tolerated by
civilized society. ... [T]he videotape interview is reasonably susceptible to
such an inference."
The court rejected KOVR-TV's argument that liability based on Saxenmeyer's
conduct in the videotape infringed on First Amendment freedoms. Relying on
Florida Star v. BJF, the television station said it was simply "relaying
truthful information" and that any sanction would be inimical to a free press.
But the court emphasized that the press must conform to the same laws as
everyone else. It began by citing Associated Press v. National Labor Relations
Board,  in which the Court stated that a reporter "has no special privilege
to invade the rights and liberties of others." Then it cited a California case:
"First Amendment decisions 'do not stand for the proposition that the press and
its representatives are immune from liability for crimes and torts committed in
news gathering activities simply because the ultimate goal is to obtain
publishable material.'" The court repeatedly referred to the young age and
vulnerability of the children involved in the KOVR-TV dispute:
If indeed defendant sought to elicit an emotional reaction from the minors for
the voyeuristic titillation of KOVR-TV's viewing audience, this is shameless
exploitation of defenseless children, pure and simple, not the gathering of news
which the public has a right to know. A free press is not threatened by
requiring its agents to operate within the bounds of basic decency. 
Clearly the court in KOVR-TV had no doubt that the station's reporter had
crossed this boundary. And as with the torts of trespass and intrusion, it did
not matter that the videotape in question was never broadcast. It was the
newsgathering behavior, not the news report itself, that caused the offense. The
court also was careful distinguish KOVR-TV's activities from the gathering and
dissemination of news about a matter of public concern.
Baugh v. CBS Inc., decided in by a federal district court in California in
1993, stemmed from another "ride-along" reporting incident. A CBS news
correspondent accompanied a social worker who was part of a Mobile Crisis
Intervention Team, a team that provided emergency assistance to crime victims.
CBS filmed several of the social worker's encounters with victims, including
Yolanda Baugh, who had been beaten by her husband. The social worker visited
Baugh shortly after the assault, and Baugh allowed the social worker into her
home, along with the CBS camera crew. CBS later aired a segment about the social
worker's efforts on its news magazine, "Street Stories." Footage of the social
worker's encounter with Baugh was included. Baugh filed suit on several grounds,
including intentional infliction. She alleged that CBS personnel entered her
home and misrepresented themselves to gain her consent to videotaping. (She had
mistaken the camera crew for law enforcement officials and thought the film
would not be used for "commercial purposes.") CBS must have known that, as
an assault victim, she was vulnerable, and it took advantage of her, she said.
The court agreed with Baugh and refused to grant CBS' motion for summary
judgment on the intentional infliction claim. "At this stage of the proceedings,
the Court cannot say that Defendants' behavior was not outrageous as a matter of
In its analysis of the intentional infliction claim, the court made no mention
of First Amendment concerns. It did, however, raise them in its analysis of
Baugh's claim of appropriation. Baugh alleged that because the "Street Stories"
episode was "patently false, misleading and sensationalized," CBS forfeited
any privilege provided for news accounts. The court disagreed, indicating that
even news programs must keep up with changing tastes and interests:
In the age of 'channel-surfing,' news organizations are hard-pressed to
disseminate information in a manner that will capture the viewers attention.
"Street Stories" is simply one attempt at presenting news in a more compelling
fashion. Subjecting news organizations to a jury trial every time they develop a
new program format and style would place an unreasonable burden on the exercise
of free speech.
The court in Baugh explicitly described "Street Stories" as a news program,
which made it worthy of First Amendment protection with regard to causes of
action focused on the content of the report. But Baugh was allowed to proceed
with her claim based on CBS' allegedly intrusive newsgathering techniques.
These four cases show that when a claim of intentional infliction stems from
newsgathering behavior, courts have been open to the possibility that the
behavior could be deemed outrageous as a matter of law. Newsgathering practices
such as ride-along reporting, undercover reporting and the use of hidden cameras
have drawn public criticism, but that has not stopped the media from using them.
Plaintiffs claiming intentional infliction stemming from newsgathering behavior
have found another way to communicate their displeasure with media, and courts
have had a sympathetic ear. Newsgathering has only limited protection under the
First Amendment, and this protection has been linked to the press' role of
informing the public in a democracy.
The courts in Berger and KOVR-TV emphasized the commercial and entertainment
interests of the media, rather than this critical societal role. Without First
Amendment protection, the media are left vulnerable to claims of intentional
infliction based on newsgathering practices.
Content. The remaining five of the nine intentional infliction claims in which
plaintiffs cleared the summary judgment hurdle were based on the content of a
media message. Three arose from comments by radio show hosts, one from a tabloid
newspaper story, and one from a magazine article. Berated brides filed two of
the three radio-related claims. It is not uncommon for talk radio broadcasters,
seeking a few laughs, to pan the photographs of brides who appear in newspaper
wedding announcements. Neither the brides nor the courts are laughing. In
Esposito-Hilder v. SFX Broadcasting Inc., decided in 1997, Annette
Esposito-Hilder was the target of disparaging comments in a routine known as the
"Ugliest Bride" contest. In Murray v. Schlosser, decided in 1990, Cynthia F.
Murray was selected as "dog of the week" and won a prize consisting of a case of
Ken-L-Ration and a dog collar. In both, the court denied the media defendant's
motion to dismiss the claim of intentional infliction, noting a lack of public
interest in the subject matter. The court in Esposito-Hilder acknowledged the
First Amendment implications of its decision, but noted that the plaintiff was a
private figure, that the broadcasting medium has the most limited First
Amendment. It also noted that the parties in the suit were business competitors
in the radio broadcast industry. In Murray, the defendant cited the First
Amendment and said the broadcast was protected opinion,  but the court
disagreed. "The sole alleged context of the defendants' program was to ridicule
someone for the purported amusement of their audience."
Kolegas v. Heftel Broadcasting Corp. arose from radio show hosts' comments
about a man whose wife had neurofibromatosis, commonly known as Elephant Man
disease. Anthony Kolegas had paid radio station WLUP to promote a cartoon
festival to benefit neurofibromatosis, commonly known as Elephant Man disease.
Kolegas phoned the station after it broadcast a festival advertisement to
discuss the benefit further, and stated in an on-air conversation that his wife
and son had the disease. At that point, the radio hosts hung up the phone.
According to the complaint, one of the hosts stated, "Why would someone marry a
woman if she had Elephant Man disease? It's not like he couldn't tell - unless
it was a shotgun wedding." Kolegas filed suit on several grounds, including
intentional infliction. In allowing Kolegas to proceed with the intentional
infliction claim, the Illinois Supreme Court made comments similar to those in
Murray: "A radio talk show host's interest in ridiculing another for the
purported amusement of the audience is not entitled to the same type of legal
deference given to a creditor's legitimate interest in collecting a debt."
Another content-based claim in which the plaintiff prevailed stemmed from a
tabloid newspaper story headlined, "World's oldest newspaper carrier, 101, quits
because she's pregnant!" The article was about Nellie Mitchell, the 96-year-old
operator of a newsstand in a small Ozark Mountain town in Arkansas. A jury found
that the defendant newspaper's conduct amounted to intentional infliction of
emotional distress, among other claims, and awarded her $650,000 in compensatory
damages and $850,000 in punitive damages. A U.S. District Court let the jury
award stand, stating: "Nellie Mitchell's experience could be likened to that of
a person who had been dragged slowly through a pile of untreated sewage."
The front page containing Mitchell's photo included headlines such as "Road Kill
Cannibal - He eats accident victims"; "20-Mile Ride with a Headless Ghost"; and
"Farmer Becomes a Millionaire Making Whips for Wife Beaters." "The court
concludes that reasonable jurors could find that it is 'worth' a great deal to
suddenly find your likeness buried in the slime of which this publication was
made," it wrote. The court in People's Bank had no doubt the newspaper had
harmed Mitchell: "Defendant undoubtedly has the Constitutional right to publish
'newspaper stories,' 'literature,' 'fiction,' or whatever the articles ... are,
but when it does and damages others by doing so, our system literally demands
that the injured person be adequately compensated in an attempt to make them
It is probably safe to describe the media content at issue in the above four
cases as tasteless and on the borderline of what can reasonably be called news.
Foretich v. Advance Magazine Publishers was different in that it stemmed from
Glamour magazine's coverage of a highly publicized dispute between Eric Foretich
and Elizabeth Morgan, who went to jail rather than give her ex-husband custody
of their young daughter. Morgan's allegations against Foretich included a
claim that he and his parents sexually abused their daughter. Foretich and his
parents sued the magazine publisher, claiming intentional infliction, among
other causes of action. The court invoked the First Amendment and dismissed two
of the three plaintiffs' intentional infliction claims, as well as their
defamation claims: "Libel law and the First Amendment would be completely
subverted if emotional distress claims could be premised solely on a person's
emotional reaction to a published statement concerning someone else." It
allowed Doris Foretich to proceed with her defamation claim and, in turn, her
intentional infliction claim.
These cases show what can happen when the media stray from their job as
government watchdog to dabble in entertainment or blatant competition with a
commercial rival. The First Amendment protects news organizations when they are
fulfilling their duty to democracy. When, however, media outlets engage in other
activities, courts may be reluctant to recognize First Amendment protections.
When Media Defendants Prevail
The majority of intentional infliction cases identified for this study were
decided in favor of the media defendant, but the media still have cause for
concern. The sheer number of such claims increased dramatically in the 1990s,
which means that the media were forced to mount frequent legal defenses. In
deciding these cases, courts generally used one of three approaches. Most often,
courts applied the four-part test put forth in the Restatement. In half the 57
cases identified for this study, courts applied this test and ruled that the
behavior in dispute simply was not outrageous. In about one-fifth of the cases,
courts cited First Amendment concerns, and generally ruled that the act of
publishing the news, however shocking the report might be, does not constitute
outrageous behavior. In most of the remaining cases, courts used a variation of
the First Amendment rationale, stating that publication of a truthful report is
not outrageous, but stopping short of invoking the First Amendment. A few
opinions did not fit into any of these categories. A variety of media -
television, radio, newspapers, books and magazines - are represented. News
organizations large and small were defendants, from the New York Times and
papers owned by Hearst and Gannett, to smaller publications such as Kentucky's
Manchester Enterprise, a weekly with a circulation of 7,100.
Four-Part Test: Behavior Not Outrageous
Twenty-seven cases were decided using this rationale. In all but three, the
complaint focused on media content rather than on newsgathering behavior.
Even though these courts made no mention of the First Amendment in their
reasoning, they nonetheless found no news content worthy of the description
"outrageous" and therefore actionable under a claim of intentional infliction.
While this may be good news for the media, it provides little guidance to either
plaintiffs or defendants as to what does constitute outrageous behavior. At
most, one can conclude that the publication of editorial content, no matter how
intrusive into a person's private affairs, most likely will not be found
outrageous as a matter of law, unless it pointedly ridicules an individual.
Newsgathering. Newsgathering behavior was at the crux of only three
unsuccessful claims of intentional infliction; the rest dealt with media
content. Two of the newsgathering cases are worth discussing in detail because
they are apparently at odds with similar cases decided in favor of the
plaintiff. This suggests that courts in different jurisdictions have been
inconsistent in how they define outrageousness. Reeves v. Fox Television, 
decided by a federal district court in Ohio in 1997, was a ride-along reporting
case similar in several respects to Baugh, the case filed by the domestic abuse
victim over the filming of her encounter with a victim's advocate. In Reeves,
television journalists accompanied law-enforcement personnel on their official
duties and entered the home of a man who had just been involved in an assault.
But unlike Baugh, Reeves was decided in favor of the defendant television
network. Willie Reeves Jr. sued Fox Television over the airing of footage of his
arrest on the program "Cops." Cleveland police arrested Reeves at his home on an
assault charge. When they arrived, he was in the shower after an "altercation
with another man," he said. The police were accompanied by a camera crew for
"Cops," which videotaped the encounter. The program containing the segment was
shown more than once on Fox. Reeves claimed intentional infliction, as well
as trespass and other causes of action. But the court analyzed Reeves'
intentional infliction complaint primarily in terms of the material broadcast
rather than in terms of the behavior of the camera crew. Although the crew got
footage of Reeves while he was naked and while he was clad only in a towel, the
court granted summary judgment to the defendants. It said their conduct in
taping the arrest and airing it on "Cops" simply did not constitute "outrageous
and extreme conduct, beyond all possible bounds of decency." The plaintiff was
not shown naked on television, the court said, and the defendants
merely videotaped the activities occurring in Plaintiff's dining room. The
camera did not follow Plaintiff around his house. Indeed, during the "Cops"
segment, Plaintiff is shown wearing a towel and sitting at a table, which covers
most of Plaintiff, or being arrested and led out of his house, at which point he
is fully dressed.
A key difference between Reeves and Baugh - although not articulated by the
courts - is that Reeves was an alleged assailant, while Baugh was an alleged
victim, even though both were involved in violent episodes. It is one way to
explain why the court in Reeves was unfazed by a camera crew videotaping a
towel-clad man being arrested in his own dining room, while the court in Baugh
said a camera crew in the home of a battered wife would sustain a claim of
intentional infliction. Consciously or not, the court in Reeves may have deemed
the plaintiff less worthy of protection.
In Howell v. New York Post , even trespass was not enough to sustain a
cause of action for intentional infliction. This contrasts with the ruling in
Kersis, the psychic marketing case in which the court said that violation of the
state penal code could be viewed as outrageous behavior. Plaintiff Pamela
Howell was a patient at a private psychiatric facility in suburban New York
state. She said it was essential to her recovery that the hospitalization remain
a secret from all but her immediate family. Hedda Nussbaum was also a patient at
the hospital. Nussbaum was the adoptive mother of Lisa Steinberg, a 6 year old
whose 1987 death from child abuse was widely publicized. In September 1988, a
photographer from the New York Post trespassed onto the hospital's secluded
grounds and, with a telephoto lens, took outdoor pictures of a group that
included Nussbaum and the plaintiff. The next day, a picture of Nussbaum,
walking next to the plaintiff, was published in the Post, accompanied by a
story. Howell's name was not mentioned in the article, but her face was clearly
discernible in the photo. She filed suit, claiming intentional infliction, among
other causes of action.
In 1993, the New York Court of Appeals upheld a lower court's dismissal of the
claim, stating two reasons. First, a newspaper's publication of a newsworthy
photograph is privileged conduct that cannot be the basis for liability. The
plaintiff failed to show that the privilege had been abused. Second, courts have
recognized that newsgathering methods may be tortious such as in Galella v.
Onassis. Recovery may be available when a journalist's conduct is
sufficiently atrocious to meet the requirements of intentional infliction. But
the conduct of the Post photographer did not do so. "[A] trespass onto [the
hospital's] grounds [...] does not remotely approach the required standard," the
court stated. "That plaintiff was photographed outdoors and from a distance
diminishes her claim even further." The apparent inconsistent definitions of
outrageous behavior in Reeves and Baugh and in Howell and Kersis give the law a
lack of predictability that poses a threat to First Amendment freedoms. Media
organizations cannot be sure what newsgathering behavior will be deemed
outrageous as a matter of law.
Content. When an intentional infliction complaint focused on media content
rather than newsgathering technique, courts generally were quick to decide in
favor of the media, even when they did not mention the First Amendment. The
past 10 years of court decisions indicate that media content, no matter how
controversial, will not be deemed outrageous as a matter of law, unless it
pointedly ridicules an individual. However, no court made this ruling
explicitly. As a result, plaintiffs are still using intentional infliction as a
cause of action against the media, although they are highly unlikely to succeed.
Media organizations must pay for legal defenses in these cases. The media's
First Amendment freedoms would be better served by an explicit ruling that media
content cannot form the basis for a claim of intentional infliction. That said,
even the courts that left the First Amendment out of their intentional
infliction analysis have, in the end, protected the media's freedom to publish.
Even disclosure of information that exposed plaintiffs to the risk of bodily
harm, as happened in Sanchez Duran v. The Detroit News Inc.  was not
sufficient to sustain a claim of intentional infliction. This is remarkable in
that such disclosure has been sufficient to sustain claims of negligence against
First Amendment Concerns
When courts dealt explicitly with First Amendment issues in intentional
infliction claims - and the claim was based on content rather than newsgathering
behavior - they nearly always ruled in favor of the media defendant.  These
courts saw the intentional infliction claims as the plaintiff's attempt to
circumvent First Amendment protections for media content and rejected them. The
words of the California appeals court that decided Foreman v. Lesher
Communications in 1993 provide a good example of this reasoning:
Where, as here, a plaintiff's right to recover requires a balancing of First
Amendment interests against an individual's right to redress for injury
resulting from a publication, [t]hat constitutional protection does not depend
on the label given the stated cause of action [citation], and no cause of action
can claim ... talismanic immunity from constitutional limitations.
The Nevada court that decided Chastain v. Valley Broadcasting Co. in 1996
indicated that the truth can sometimes hurt. The plaintiff was the father of a
young woman who was found dead in the desert. The woman had been missing for two
weeks, and the father first learned of her death from a television news
broadcast. Applying the four-part test for intentional infliction, the court
said the broadcaster's actions could not be viewed as intentional with regard to
the plaintiff father. To decide otherwise, the court, said, would require the
finding that every news broadcast is directed at every individual who chooses to
watch it. "Creating such a broad class of potential plaintiffs ... cannot be
reconciled with the First Amendment," the court stated. It went on to quote
Doubtless many persons at such a time would be distressed or annoyed by a
publication of the sort here involved. [...] The law does not provide a remedy
for every annoyance that occurs in daily life. Many things which are distressing
or may be lacking in propriety or good taste are not actionable.
The courts that decided the cases discussed in the next section echoed this
idea - the notion that news, by its very nature, can be distressing - but
stopped short of explicitly mentioning the First Amendment.
In these nine decisions, courts stated that a truthful report cannot be
considered outrageous as a matter of law.  The most succinct example of such
reasoning was found in Brown v. Hearst Corp., decided by the First Circuit of
the U.S. Court of Appeals in 1995. American Airlines pilot Willis N. Brown of
Newtown, CT, sued WCVB-TV in Boston after it broadcast a segment about his
missing wife Regina, from whom he was separated. Six months before Regina's
disappearance, the wife of a different pilot, who also lived in Newtown, had
also disappeared. Fragments of her bones were found in a nearby river, and her
husband was accused of murdering her and then using a woodchipper to dispose of
her body. WCVB's segment about Regina Brown was titled, "The Other Pilot's
Wife." The program described Mrs. Brown's disappearance as a mystery or, at
worst, a possible unsolved murder. Brown sued on several grounds, including
intentional infliction; the circuit court upheld the lower court's granting of
summary judgment to the defendant news organization. It stated:
In all events, many of the legitimate news stories that appear in the media
involve foreseeable distress for the subject of the story, probably severe
distress in some cases. Regina's disappearance and the divorce trial were news
stories, and so was her continued absence and the failure of the police to solve
the case. Willis provides no basis to think that generally accurate coverage in
such a case is even remotely close to conduct "beyond all possible bounds of
decency" and "utterly intolerable in a civilized community."
Courts acknowledged that the truth will sometimes hurt, but said the press
cannot be held liable for the pain caused by publication of a truthful article.
One court said that media coverage of an official public event is not actionable
as an outrage if it meets the requirements of the fair report privilege.
Newsgathering practices and the content of the report were intertwined in an
unusual suit, Clift v. Narragansett Television, decided by the Rhode Island
Supreme Court in 1996. It was brought by the widow of a man who fatally shot
himself in the head after a television station aired his last words. The man,
Bruce Clift, had locked himself in the house with guns and threatened to commit
suicide. The police intervened and a local television station, Channel 12,
appeared on the scene. A reporter from the station telephoned Bruce Clift and
taped the interview. It was broadcast on the 6 p.m. news, and Bruce Clift was
found dead shortly thereafter, with the televisions in his home switched on and
tuned to Channel 12. His widow, Judith Clift, filed suit, alleging intentional
infliction, among other causes of action. The court granted summary judgment for
the television station on that count for a very specific reason: the plaintiff
had failed to satisfy Rhode Island's unusual requirement for physical
symptomatology.  However, it allowed the plaintiff to proceed with her claim
of negligence, which also was based on the reporter's conduct.
In sum, courts generally have been sensitive to the need to balance the media's
interest in freedom of expression against the plaintiff's interest in not being
harmed by media messages. When claims of intentional infliction stemmed from
media content, courts almost always held that the message could not be deemed
outrageous as a matter of law. In most of the content-based cases that courts
allowed to proceed - the berated brides, the husband of the woman with Elephant
Man's disease, the 101-year-old pregnant newspaper carrier - it is hard to
defend the messages from a journalistic standpoint. They are arguable not even
journalism and could easily have been avoided without compromising the media's
First Amendment responsibilities and freedoms. When the court in Foretich
allowed one claim of intentional infliction to go forward along with a claim of
defamation, it wisely noted that the former tort could not be used as an end run
around the latter.
Courts have been more willing to allow claims of intentional infliction to
proceed when they are based on newsgathering practices. This should come as no
surprise, given that newsgathering receives only limited protection under the
First Amendment. However, in some of these cases, courts also have stated that
the media were engaged in gathering entertainment material for commercial
purposes, not in newsgathering. These cases deal with long-standing
controversies over practices such as undercover reporting and the use of hidden
cameras. News organizations might avoid some of these claims by thinking more
about the ethicality of their newsgathering procedures. Whatever one thinks
about the ruling in KOVR-TV, it is probably safe to say that reporter
Saxenmeyer's behavior was crude and that the plaintiff sought to punish him for
The above analysis shows that claims have been filed against many media for
many types of messages. While television news magazines and their aggressive
reporting techniques attract a great deal of popular attention and have been
among the defendants in intentional infliction claims, they did not constitute
the majority of those defendants. Rather, newspaper articles were at issue in
more than half the cases. Two books generated claims - one a work of
fiction. Despite the much-touted power and pervasiveness of television, the
printed word evidently still packs a punch that can hurt feelings, even when it
appears in a small-circulation semiweekly. News stories, news photos, columns, a
letter to the editor, even a legal advertisement have all been at issue in these
claims. On television, programs that gave rise to suits included news magazines,
news shows, and hybrid programs, such as Fox Television's "Cops," that present
public affairs material in an entertainment-style format. Radio talk shows were
at issue in three of the suits, and the plaintiff was allowed to proceed in all
three. Reporting practices that could be construed as intrusive or surreptitious
sometimes led to legal action. Reporters who accompanied law enforcement
officials onto private property were involved in three cases; undercover
reporters in two. A reporter who entered a private home without explicit
invitation was the target of one claim; a photographer who trespassed onto
private property and used a telephoto lens yet another. In short,
journalists who enter private property without explicit permission from the
property owner may not be guilty of trespass, but are nonetheless targets of
intentional infliction claims. Similarly, news stories that were based on
recorded conversations gave rise to two suits, even though in neither case
were journalists accused of illegal wiretapping.
Plaintiffs: Who Claims Intentional Infliction and Why?
The media have prevailed in most of intentional infliction claims, but
plaintiffs keep filing them. News organizations wishing to avoid intentional
infliction claims have received no guidance from the courts, which have failed
to provide a definition or test to determine outrageousness. This study,
however, can help news organizations identify potential problems by revealing
patterns among plaintiffs and the situations that gave rise to their claims.
These are the situations in which it may be especially important to be sensitive
to sources' concerns and the ethicality of news decisions.
Plaintiffs have tended to be people who would be considered private figures in
libel suits. They are people not used to the glare of the media spotlight, who
have found their personal lives exposed to the public, often when they are
vulnerable from recent trauma. As will be shown below, victims of sexual assault
and bereaved family members are well-represented among these plaintiffs. With
regard to the situations that gave rise to suits, unsought publicity about
topics that people have traditionally considered private, such as sexual
orientation and psychiatric treatment, has been a trigger. So have imputations
of criminal conduct and drug use - claims that could be considered defamatory.
News organizations cannot avoid covering these issues, but they can try to be
more sensitive in their coverage of them and in their dealings with the people
involved. What Drechsel noted in 1985 is also true today: Intentional infliction
claims often are attempts to use the courts to legally punish what previously
would have been considered a breach of journalistic ethics. Some of these suits
might be avoided if journalists were more compassionate with sources. A suicide
or rape is not routine for the survivors or victim, even though such stories are
the bread and butter of most news organizations.
Bereavement has been the backdrop for many claims of intentional infliction,
including those against non-media defendants. Seven of the cases identified
for this study involved family members of a deceased person. Three of the
deaths were the result of suicide or suspected suicide. Other sensitive
issues were intertwined in the bereavement cases: unsought publicity about
sexual orientation and an allegation of drug use. For example, the bereaved
family of a Navy man sued NBC over its news coverage of the fatal 1989 explosion
of the U.S.S. Iowa.  Their action for intentional infliction claimed that
NBC accused sailor Clayton Hartwig of purposefully causing the Iowa explosion as
a means of committing suicide and implied that Hartwig was homosexual. The court
granted summary judgment to NBC, saying the plaintiffs did not show extreme and
outrageous conduct by the broadcaster because NBC's news reporters had no
malicious intent; in fact, they did not know the Hartwigs before the explosion.
Another case involving bereaved family members, suicide and unsought publicity
about sexual orientation was Hogan v. Hearst. Benny Hogan was charged with
indecent exposure following an incident in a public park in San Antonio, Texas.
About a month later, the San Antonio Express-News published an article about the
various arrests the city police department had made at local parks, using its
undercover operations to target sex offenders in city parks. A chart
accompanying the article showed how many arrests on sexual activity charges
occurred at each park, and a sidebar gave the names of suspects charged in the
latest police roundup. Benny Hogan's name and date of birth were published; he
committed suicide shortly after publication of the article. Benny Hogan's family
filed suit against Hearst, the publisher of the newspaper, and the reporter who
wrote the article, claiming that the deceased was a "closeted homosexual" and
the paper printed private facts that essentially "outed" him against his wishes.
The court granted summary judgment to the defendant newspaper on First
Amendment grounds. It stated: "A defendant cannot be found liable when he has
done no more than insist on his legal rights in a permissible way, even if he is
aware that such insistence is certain to cause emotional distress."
Incidents of sexual assault were involved in four of the cases of intentional
infliction identified for this study. Two of the victims were young
teenagers. Plaintiffs' reasons for claiming intentional infliction varied:
one said that a newspaper article about the incident identified her even though
it did not give her name; another said that the television station that
broadcast the story should have known she was particularly vulnerable to
emotional distress. In Sanchez v. Affiliated Publications, decided in
1993 by a Massachusetts Superior Court, the plaintiff claimed that a newspaper
column forced her and her family to flee their home. Boston Globe columnist Mike
Barnicle wrote about a 14-year-old girl's rape by a 16-year-old gang member. She
subsequently gave birth, and she and her family claimed were subsequently
harassed and intimidated by the gang. The plaintiffs did not claim the column
was inaccurate, but that its publication forced them to vacate their apartment
and move to a different part of Boston. They also alleged that the plaintiffs'
mother pleaded with Barnicle not to publish the story. The court ruled that
there can be no recovery for intentional infliction based on a truthful
publication that is privileged and concerns a matter of legitimate public
Unsought publicity about sexual orientation was involved in Hartwig and Hogan,
discussed above. It also was at the heart of Merriwether v. Shorr, decided
in 1995 by a New York Supreme Court. A caption and photograph in a magazine gave
rise to this suit. Valerie Merriwether and Rosetta Ford sued photographer Kathy
Shorr and the publisher of Popular Photographer after it carried a picture
captioned, "LESBIAN COUPLE ... two women on their way to a commitment ceremony
in a church in Greenwich Village." The photo showed Merriwether and Ford in
their wedding attire in the back of a limousine driven by Shorr, who worked as a
driver as well as a photographer. It was published six years after the ceremony,
and the plaintiffs claimed it caused them embarrassment and distress because
they had always been very private about their relationship. The court ruled that
the defendant's conduct did not transcend all bounds of decency.
The remaining cases dealt with topics that are standard fare for most news
organizations: drugs, crime, politics. News organizations will, in the course of
their work, necessarily discuss issues that offend people's sensibilities. They
cannot possibly discuss matters of public concern without doing so. To hold them
liable for intentional infliction based on the content of a report would open
the floodgates for lawsuits. Indeed, some cases were based on weak
complaints, suggesting that the plaintiffs were generally angry with the media
and claimed intentional infliction as one of several causes of action - in hopes
that one would stick. These are the vexatious suits about which Prosser and
Keeton warned. Probably the weakest case reviewed for this study was Williams v.
Nathan, decided in 1993 by a federal district court in Virginia. James E.
Williams sued the Arlington Journal, claiming intentional infliction, after it
published a legal notice advertising a foreclosure sale of property he owned.
The court dismissed the charge, simply stating that "none of the actions of the
defendants rise to a level of outrageous or intolerable conduct." Clearly, this
claim is so weak it should not even have reached the court. The Arlington
Journal has a daily circulation of 7,500 and is owned by Journal Newspapers
Inc., which owns several newspapers in Maryland and Virginia. But until the
courts rule that claims of intentional infliction based on the content of a
report are not permissible on First Amendment grounds, the media can try to
avoid these suits by thinking more about the ethicality of their work.
Reducing Claims of Intentional Infliction Against the Media
Intentional infliction claims against the media are growing as plaintiffs
realize they are unlikely to win privacy or libel claims. This survey has shown
that plaintiffs appear to be filing suit as a way to legally punish what
previously would have been considered violations of journalistic ethics or
examples of bad taste. One might anticipate that most cases stemmed from the
acts of the stereotypic aggressive network television news reporter. Such was
not the case. More than half involved newspapers, some of them quite small. This
is very much an issue of hurt feelings; this was glaringly evident in the cases
of the berated brides. People are angry at the media and seek retribution. Our
legal system does not hold news organizations accountable when they hurt
feelings, but the growth of these suits against the media shows that it is a
significant concern for the public they serve. Although the media cannot and
should not try to please everyone, they must pay attention to consistent and
enduring public criticism, which is what these intentional infliction cases
represent. In a democracy, the media have the important jobs of informing the
electorate and serving as a watchdog on government. In other words, they media
have a duty to serve the electorate, and the electorate is voicing
dissatisfaction. The media need to listen.
The courts, too, are implicitly criticizing the media's performance as
government watchdog and informer of the electorate when they portray them as
commercial entities in search of entertainment material. First Amendment
protections stem from the press' role in a democracy, and as the media stray
from that role, these protections are weakening. In the past, courts have been
very liberal in their definition of public interest. Through careless behavior,
the media have pressured the courts to find the limits of public interest, and
courts have begun to do so. The berated brides are cases in point.
Media scholars are acutely aware of public wrath toward the press. "Accumulated
distrust of the news media, skepticism of journalists' ethics, and a resentment
of media power are very nearly permanent features of the contemporary American
scene," wrote ethicist Edmund B. Lambeth. "[I]t is past time for journalists and
owners of newspapers and radio and television stations to articulate principles
of performance that are publicly visible, ethically defensible, and rooted
clearly in a philosophic tradition that continues to justify a free press."
Lambeth is not alone; other contemporary media ethicists share this view.
In response to this crisis of confidence, Lambeth has developed a framework of
principles for journalism ethics. Among these principles are several with
particular relevance to this discussion of intentional infliction: truthfulness,
humaneness and stewardship.
The newsgathering process can be assessed in terms of its truthfulness, that
is, whether it involves active or passive deception. This survey has shown that
deception in newsgathering has been at issue in several claims of intentional
infliction. The principle of humaneness - do no direct harm, prevent harm,
render needed assistance - also can be applied to journalists' interactions
with the subjects of their stories. This survey has shown that, true to the name
of the tort, plaintiffs who claimed intentional infliction felt hurt, often at a
time of deep personal vulnerability, by the media action that gave rise to their
suits. The principle of stewardship means that journalists "manage their
resources of communication with due regard for the rights of others, the rights
of the public, and the moral health of their own occupation." This survey
has shown that the recent sharp increase in claims of intentional infliction is
a signal that journalists need to engage in some reflection on their
professional performance. A full discussion of the ethicality of the
journalistic behavior and publication decisions involved in these legal cases is
beyond the scope of this paper. Rather, this brief discussion of ethics is
intended to suggest that journalists, by paying a little more attention to
ethical principles, and by thinking about why they have First Amendment
protection in the first place, could keep themselves out of court.
Courts can formally articulate what they have been doing all along: ruling that
content cannot serve as the basis of a claim of intentional infliction against
the media. As this survey showed, most claims have focused on media content
rather than newsgathering practices, so such a ruling could greatly reduce
litigation. Courts also need to bring some consistency to rulings about what
constitutes outrageous newsgathering behavior. Newsgathering practices are a
contentious topic today, and it is beyond the scope of this paper to settle this
complex controversy. However, courts must bear in mind that reporting on matters
of public concern will necessarily require journalists to visit scenes of death,
disaster and crime. Even the most sensitive reporter is bound to offend someone.
The media could not fulfill their duty to democracy without dispatching
reporters to such scenes. Courts must be careful to weigh the media's interest
in fulfilling these duties against the plaintiff's interest in avoiding harm.
Claims of intentional infliction against the media are increasing. Most claims
have focused on the content of a report, and most courts have wisely rejected
such claims. News, by definition, deals with the difficult issues of the day.
With today's mass audience being bombarded by reports - some sought, some
unsought - from many media, it is inevitable that some audience members will be
offended by some reports. The news media have an established democratic duty to
inform the electorate about these issues. They must continue to deliver this
information so citizens can effectively govern themselves.
Although courts have generally protected the media's interest in free
expression in these cases, media continue to face legal defense costs associated
with intentional infliction claims. These costs could be reduced in two ways.
First, courts could explicitly rule that it is not permissible to claim
intentional infliction based on the content of a media report. Second, the media
can try to adhere to the ethical principles of humaneness and truthfulness, to
prevent plaintiffs from trying to use the legal system to vent their anger about
what they view as inappropriate content. In the best of all worlds, this means
that journalists in the throes of deadline pressure need to take a deep breath
and remember to treat story subjects kindly. In a more cynical world, this means
reporters must stop taking advantage of sources' naivet and trauma, even if it
means giving up footage of an emotional scene or the information gained from the
candor of suffering.
Courts have had a sympathetic ear for the few claims of intentional infliction
focused on newsgathering behavior. These claims fit into the broader
contemporary controversy about appropriate limits on newsgathering, an active
area of the law. The First Amendment provides only limited protection for
newsgathering, so the media are on more dangerous turf in these claims. The
media might avoid such claims by making decisions about the use of controversial
newsgathering techniques within the context of their democratic duties. This
study has shown that, when intentional infliction claims were allowed to
proceed, the defendant sometimes could not mount a credible newsworthiness or
public interest defense.
For their part, plaintiffs should heed the words of legal scholar Magruder.
More than 60 years have passed since his seminal article on intentional
infliction was published, but his advice is still good today: "Against a large
part of the frictions and irritations and clashing of temperaments incident to
participation in a community life, a certain toughening of the mental hide is
better protection than the law could ever be." Brides would do well to
cloak themselves in self-confidence as well as illusion lace.
 Kersis v. Capital Cities/ABC Inc., 22 Media L. Rep. (BNA) 2505 (Cal. Super.
Ct. 1997). In Sanders v. Capital Cities/ABC Inc., No. 59693, 1999 Cal. LEXIS
3900 (Cal. Jun. 24, 1999), the California Supreme Court reconsidered the
plaintiffs' intrusion claim.
 The article was Robert E. Drechsel, "Intentional Infliction of Emotional
Distress: New Tort Liability for Mass Media," 89 Dick. L. Rev. 339 (1985).
Drechsel identified at least 35 cases, all but six of which were decided since
1978. Id. at 346.
 See, e.g., Michelle Johnson, "Of Public Interest: How Courts Handle Rape
Victims' Privacy Suits, 4 Comm. L. & Pol'y 201 (1999), at 208-209.
 See, e.g., Richard Labunski, " The First Amendment at the Crossroads: Free
Expression and New Media Technology," 2 Comm. L. & Pol'y 165 (1997), at 181-84.
 KOVR-TV Inc. v. Superior Court (Whittle), 37 Cal.Rptr.2d 431, 436
 For discussion of the role of the press in a democracy, see, e.g., David A.
Anderson, "The Origins of the Press Clause," 30 UCLA L. Rev. 455 (1983); Vincent
Blasi, "The Checking Value in First Amendment Theory," 1977 Am. B. Found. Res.
J. 522 91977); Potter Stewart, "Or of the Press," 26 Hastings L. J. 631 (1975).
 Ellen Willis, "Monica and Barbara and Primal Concerns," New York Times,
March 14, 1999, p. 31.
 Daniel Givelber, "The Right to Minimum Social Decency and the Limits of
Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous
Conduct," 82 Colum. L. Rev. 42 (1982).
 Calvert Magruder, "Mental and Emotional Disturbance in the Law of Torts,"
49 Harv.L.Rev. 1033 (1936).
 Id. at 1035.
 Daniel Givelber, "The Right to Minimum Social Decency and the Limits of
Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous
Conduct," 82 Colum. L. Rev. 42 (1982).
 State Rubbish Collectors Association v. Siliznoff, 240 P.2d 282 (Cal.
1952), discussed in Carl Tobias, "Intentional Infliction of Mental Distress in
Montana," 57 Mont. L. Rev. 99 (1996).
 Restatement (Second) of Torts, Sec. 46 (1965), comment c.
 Other articles have a narrow focus; see, e.g., David B. Millard,
"Intentionally and Negligently Inflicted Emotional Distress: Toward a Coherent
Reconciliation," 15 Indiana L.J. 617 (1982) and C. Tobias, "Intentional
Infliction in Montana," 57 Mont. L. Rev. 99 (1996). Still others cover related
topics; see, e.g., Sandra Davidson, "Blood Money: When Media Expose Others to
Risk of Bodily Harm," 19 Hastings Comm/Ent L.J. 225 (1997) (considers negligence
as a cause of action against the media) and Robert E. Drechsel, "Negligent
Infliction of Emotional Distress: New Tort Problem for the Mass Media," 12 Pepp.
L. Rev. 889 (1985).
 Givelber, supra note 8, at 1.
 W. Page Keeton et al., Prosser and Keeton on the Law of Torts, Sec. 12 at
56 (5th ed. 1984).
 W. Page Keeton et al., Prosser and Keeton on the Law of Torts, Sec. 12 at
61 (5th ed. 1984).
 Givelber, supra note 8, at 75.
 Drechsel, supra note 2.
 485 U.S. 46 (1987).
 Id. at 48.
 Id. at 50.
 Id. at 53.
 Id. at 56.
 Restatement (Second) of Torts, Sec. 46 (1965).
 Id., comment d.
 W. Page Keeton et al., Prosser and Keeton on the Law of Torts, Sec. 12 at
59 (5th ed. 1984).
 One plaintiff sued over a legal advertisement. See Williams v. Nathan, 21
Media L. Rep. 1339 (E.D. Va. 1993).
 Jones v. Clinton, 990 F.Supp. 657 (E.D.Ark. 1998).
 Id. at 677-78.
 These 57 cases included a total of 60 court opinions.
 See infra at 17.
 A line of U.S. Supreme Court cases has emphasized the limited protection
provided by the First Amendment for newsgathering: Branzburg v. Hayes, 408 U.S.
665 (1972); Pell v. Procunier, 417 U.S. 817 (1974); Saxbe v. Washington Post
Co., 417 U.S. 843 (1974); and Houchins v. KQED Inc., 438 U.S. 1 (1978). A First
Amendment right of access was first recognized in Richmond Newspapers Inc. v.
Virginia, 448 U.S. 555 (1980), with the court emphasizing the press' structural
role in maintaining a republican system of government. In that case, the Court
held that the right of the press and public to attend criminal trials is
guaranteed under the First Amendment.
 __U.S.__ (1999)(No. 98-83).
 Berger v. Hanlon, 24 Media L. Rep. 1748 (D.Mont. 1996).
 Berger v. Hanlon, 25 Media L. Rep. 2505 (9th Cir. 1997).
 Id. at 2509.
 Id. at 2510.
 Id. at 2511.
 Wilson v. Layne, __U.S.__ (1999)No. 98-83), at 4.
 Id. at 10 (footnote omitted).
 22 Media L. Rep. 2321 (Cal.Sup. Ct. 1994).
 Id. at 2324.
 Id. at 2329.
 37 Cal.Rptr.2d 431 (Cal.App.3 Dist. 1995).
 Id. at 433.
 Id. at 434.
 Id. at 435.
 491 U.S. 524 (1989).
 301 U.S. 103 (1937).
 Nicholson v. McClatchy Newspapers, 177 Cal.App.3d 509, 518, 1 Media L.
Rep. 2009 (1937).
 37 Cal.Rptr. 431, 436 (Cal.App.3Dist. 1995).
 828 F.Supp. 745, 21 Media L. Rep. 2065 (N.D. Cal. 1993).
 Id. at 2071.
 Id. at 2073.
 Id. at 2069.
 See the citations at n.33, supra.
 26 Media L. Rep. (BNA) 1941 (N.Y. App.Div. 1997).
 17 Media L. Rep. (BNA) 2069 (Conn. Super. Ct. 1990).
 Id. at 2071.
 This was before the U.S. Supreme Court said in Milkovich v. Lorain
Journal, 497 U.S. 1 (1990), that the oft-quoted passage, "Under the First
Amendment there is no such thing as a false idea," from Gertz v. Robert Welch
Inc., 418 U.S. 323 (1974), 339, was not "intended to create a wholesale
defamation exemption for anything that might be labeled 'opinion.'" Milkovich at
 Murray v. Schlosser, 17 Media L. Rep. (BNA) 2069 (Conn. Super. Ct. 1990).
 20 Media L. Rep. 2105, 2106 (Ill. 1992).
 Id. at 2113.
 People's Bank & Trust Co. v. Globe International, 19 Media L. Rep. 2097,
2101 (W.D. Ark 1992).
 Id. at 2101 (citation omitted).
 18 Media L. Rep. 2280 (D.D.C. 1991). See also Foretich v. Glamour, 18
Media L. Rep. 1672 (D.D.C. 1990) and Foretich v. Glamour, 17 Media L. Rep. 1729
 Foretich v. Advance Magazine Publishers, 18 Media L. Rep. 2280, 2284
 Editor & Publisher International Yearbook, Part I, at II-32 (1998).
 Claims of intentional infliction based on content, and in which courts
used the four-part test to decide, were: Cleary v. News Corp., 30 F.3d 1255, 22
Media L. Rep. 2076 (9th Cir. 1994); Covey v. Detroit Lakes Publishing, 20 Media
L. Rep. 1671 (Minn. Ct. App. 1992); Doe v. Hearst, 25 Media L. Rep. 1483 (N.Y.
Sup. Ct. 1996); Holtzscheiter v. Thomson Newspapers Inc., 19 Media L. Rep. 1717
(S.C. 1991); Fitch v. Voit, 21 Media L. Rep. 1863 (Ala. 1993); Hartwig v. NBC,
22 Media L. Rep. 2535 (N.D. Ohio 1994); Howe v. New York Post Co., 23 Media L.
Rep. 1955 (N.Y. Sup. Ct. 1995); Howell v. New York Post, 21 Media L. Rep. 1273
(N.Y. 1993); Hyatt v. Purcell, 24 Media L. Rep. 1250 (Mass. Sup. Ct. 1995);
Preston v. Martin Bregman Productions Inc., 19 Media L. Rep. 1057 (S.D.N.Y.
1991); Kolegas v. Heftel Broadcasting Corp., 20 Media L. Rep. 2105 (Ill. 1992);
Lish v. Harper's Magazine, 20 Media L. Rep. 2073 (S.D.N.Y. 1992); Merriwether v.
Shorr, 23 Media L. Rep. 1830 (N.Y. Sup. Ct. 1995); Norris v. KUTV Inc., 24 Media
L. Rep. 1255 (Utah Dist. Ct. 1995); Polsby v. Spruill, 25 Media L. Rep. 2259
(D.D.C. 1997); Salgado v. Joyner Management Services Inc., 26 Media L. Rep. 1595
(N.C. Ct. App. 1997); Sanchez Duran v. The Detroit News Inc., 21 Media L. Rep.
1891 (Mich. Ct. App. 1993); Stith v. Cosmos Broadcasting Co., 25 Media L. Rep.
1151 (Ky. Cir. Ct. 1996); Weinstein v. Bullick, 22 Media L. Rep. 1481 (E.D. Pa.
1993); White v. Manchester Enterprise Inc., 23 Media L. Rep. 1309 (E.D. Ky.
1994); Williams v. Nathan, 21 Media L. Rep. 1339 (E.D. Va. 1993); Zeran v.
Diamond Broadcasting Co., 26 Media L. Rep. 1855 (W.D.Okla. 1997).
 25 Media L. Rep. 2104 (N.D. Ohio 1997).
 Id. at 2105.
 "Cops" is produced by Barbour-Langley Productions, also a defendant in the
suit; Fox was not present when the taping took place.
 Id. at 2109, n.5. The court added that Fox was entitled to summary
judgment on all claims based on entry into Reeves' home and on the videotaping
because its only role was to assure that the episode met broadcast standards and
then broadcast the show.
 Reeves was charged with felonious assault and later pleaded guilty to a
lesser felony charge. He received a suspended prison sentence.
 Public figure doctrine, of course, makes a distinction between voluntary
and involuntary conduct. See, e.g., Gertz v. Robert Welch Inc., 418 U.S. 323
(1974). However, the court in Reeves did not discuss this issue.
 21 Media L. Rep. 1273 (N.Y.Ct.App. 1993).
 See also Veilleux v. National Broadcasting Co., 26 Media L. Rep. (BNA)
1929 (1998). Although Dateline NBC journalists were accused of
misrepresentations and invasion of privacy, these actions could not be construed
as outrageous as a matter of law.
 487 F.2d 986, 995 (2d Cir. 1973)
 21 Media L. Rep. 1273, 1278 (N.Y.Ct. App. 1993).
 See, e.g., Stith v. Cosmos Broadcasting, 25 Media L. Rep. 1151 (Ky.Cir.Ct.
 21 Media L. Rep 1891 (Mich.Ct.App. 1993). The plaintiff in Sanchez Duran
was a former Colombian judge who left that country after she indicted a drug
lord. She relocated to Detroit and was concerned about her safety, only to have
the local media print and broadcast stories about her new residence. She claimed
intentional infliction, but the court ruled in favor of the media, noting that
Sanchez Duran had leased the Detroit apartment in her own name.
 For a detailed discussion of this topic and a particularly relevant case,
Hyde v. City of Columbia, 637 S.W.2d 251 (Mo.App. 1982), cert. denied, 459 U.S.
1226 (1983), see Davidson, supra note 14, at 252-254.
 Other cases in which courts cited First Amendment concerns in dismissing
intentional infliction claims against the media were Clark v. Clark, 21 Media L.
Rep. 2082 (Fla.Cir.Ct. 1993); Chaiken v. VV Publishing Corp. 119 F.3d 1018 (2d
Cir. 1997); Glickman v. Stern, 19 Media L. Rep. 1769 (N.Y. Sup. Ct. 1991); Gold
v. Harrison, 24 Media L. Rep. 1383 (Hawaii Cir.Ct. 1995); LeFever v. Great Falls
Tribune, 24 Media L. Rep. 2086 (Mont.Dist.Ct. 1995); McNamara v. Freedom
Newspapers, 18 Media L. Rep. 1679 (Tex. Ct. App. 1991); Tackett v. KRIV-TV, 22
Media L. Rep. 2092 (S.D. Tex. 1994); and Wavell v. Caller-Times Publishing Co.,
18 Media L. Rep. 2204 (Tex. Ct. App. 1991). The exception to this rule is
Esposito-Hilder v. SFX Broadcasting Inc., 26 Media L. Rep. 1541 (N.Y. App.
1997), a content-based case in which the court cited the First Amendment but
decided in favor of the plaintiff nonetheless.
 21 Media L. Rep. 1090 (Cal.App. 1993).
 Foreman v. Lesher, 21 Media L. Rep. 1090 (Cal.App. 1993) at 1094, quoting
Blatty v. NY Times Co., 42 Cal. 3d 1033, 1042-43 (13 MLR 1929].
 25 Media L. Rep. 1283 (Nev.Dist.Ct. 1996).
 Id. at 1285.
 Id., quoting Kelley v. Post Publishing Co., 98 N.E.2d 286, 287 (1951).
 See also Berger v. Hanlon, 24 Media L. Rep. 1748 (D.C. Mont. 1996); Hogan
v. Hearst, 25 Media L. Rep. 2134 (Tex. Ct.App. 1997); Lence v. Hagadone
Investment, 21 Media L. Rep. 1941 (Mont. 1993); Posner v. New York Post. Co., 26
Media L. Rep. 1634 (N.Y. Sup. Ct. 1997); Raskin v. Swann, 23 Media L. Rep. 2054
(Ga.Ct.App. 1995); Sanchez v. Affiliated Publications Inc., 22 Media L. Rep.
1188 (Mass.Super.Ct. 1993); Tucker v. News Publishing Co., 18 Media L. Rep. 1684
(Ga. Ct. App. 1990); Wright v. Grove Sun Newspaper Co., 22 Media L. Rep. 1801
 Brown v. Hearst Corp., 54 F.3d 21, 23 Media L. Rep. 1984 (1st Cir. 1995),
quoting Agis, 355 N.E.2d at 319 (quoting other authorities).
 Wright v. Grove Sun Newspaper Co. Inc., 22 Media L. Rep. 1801, 1807 (Okla.
 688 A.2d 805 (RI 1996).
 Physically manifested harm is typically required in claims for negligent
infliction of emotional distress but not intentional infliction. See Drechsel,
supra note 14, at 911.
 For an analysis of this aspect of the case, see Davidson, supra note 14.
In Norris v. KUTV Inc., the court ruled that a corporation cannot sue for
intentional infliction of emotional distress. It also ruled that no outrageous
behavior had taken place.24 Media L. Rep. 1255 (Utah Dist.Ct. 1995).
 Polsby v. Spruill, 25 Media L. Rep. 2259 (D.D.C. 1997). The plaintiff, a
physician, claimed that the novel at issue, My Soul to Take, was based on her
life story. She claimed intentional infliction because the character in the
novel had a romantic relationship with a patient and broke into two houses and
 Baugh v. CBS Inc., 828 F.Supp. 745 (N.D.Calif. 1993); Berger v. Hanlon, 24
Media L. Rep. 1748 (D.Mont. 1996); and Reeves v. Fox Television Network.
 Kersis v. Capital Cities/ABC Inc., 22 Media L. Rep. 2321 (Cal.Sup.Ct.
1994); Tackett v. KRIV-TV, 22 Media L. Rep. 2093 (S.D.Tex. 1994).
 KOVR-TV Inc. v. Superior Court (Whittle), 37 Cal.Rptr.2d 431
 Howell v. New York Post, 21 Media L. Rep. 1273 (N.Y.Ct.App. 1993).
 Natoli v. Sullivan, 21 Media L. Rep. 2097 (N.Y.Sup.Ct. 1993); Wright v.
Grove Sun Newspaper Co., 22 Media L. Rep. 1801 (Okla. 1994).
 Many non-media cases involve the mishandling of dead bodies. See W. Page
Keeton et al., Prosser and Keeton on the Law of Torts, Sec. 12, at 63 (5th ed.
 They are Clift v. Narragansett Television, 688 A.2d 805 (R.I. 1993);
Chastain v. Valley Broadcasting, Fitch v. Voit, 624 So.2d 542 (Ala.Sup.Ct.
1993); Hartwig v. NBC, 863 F.Supp. 558 (N.D.Ohio 1994); Hogan v. Hearst, 25
Media L. Rep. 2134 (Tex.Ct.App. 1997); ); Holtzscheiter v. Thomson Newspapers
Inc., 19 Media L. Rep. 1717 (S.C. 1991) and Upchurch v. New York Times Co., 341
S.E.2d 558 (S.C.Super.Ct. 1993).
 They are Clift v. Narragansett Television, 688 A.2d 805 (R.I. 1993);
Hartwig v. NBC, 863 F.Supp. 558 (N.D.Ohio 1994); and Hogan v. Hearst, 25 Media
L. Rep. 2134 (Tex.Ct.App. 1997).
 Hartwig v. NBC, 22 Media L. Rep. 2535 (N.D. Ohio 1994).
 25 Media L. Rep. 2134 (Tex.Ct.App. 2134).
 Id. at 2138.
 They are Doe v. Hearst Corp., 25 Media L. Rep. 1483 (N.Y. Sup. Ct. 1996);
Sanchez v. Affiliated Publications, Weinstein v. Bullick, 22 Media L. Rep. 1481
(E.D. Pa. 1993) and Clark v. Clark, 21 Media L. Rep. 2082 (Fla.Cir.Ct. 1993).
 Doe v. Hearst Corp., 25 Media L. Rep. 1483 (N.Y. Sup. Ct. 1996); Sanchez
v. Affiliated Publications.
 Doe v. Hearst Corp., 25 Media L. Rep. 1483 (N.Y. Sup. Ct. 1996).
 Weinstein v. Bullick, 22 Media L. Rep. 1481 (E.D. Pa. 1993).
 22 Media L. Rep. 1188 (Mass. Super. Ct. 1993).
 23 Media L. Rep. 1830 (N.Y. Sup. Ct. 1995).
 Id. at 1831.
 A number of other cases dealt with imputations of crime, professional
misconduct and drug use. See Brown v. Hearst Corp., 54 F.3d 21 (1st Cir. 1995)
(airline pilot whose wife had been missing for six months filed over broadcast
that suggested that the wife's disappearance could be an unsolved murder, and
mentioned that another pilot was convicted of murdering his wife and disposing
of her body with a woodchipper); Crall v. Gannett Satellite Information Network,
20 Media L. Rep. 1987 (S.D. Ohio 1992) (automotive repair shop owner sued over
newspaper coverage of a charge of possession of marijuana); Covey v. Detroit
Lakes Publishing Co., 20 Media L. Rep. 1671 (Minn. Ct. App. 1992) (family
members object to ambiguous newspaper article confusing them with relative
outside whose residence a murder occurred); Foreman v. Lesher Communications, 21
Media L. Rep. 1090 (Cal.App. 1993) (deckhand objected to a newspaper article
that erroneously portrayed him as a drug dealer); Foretich v. Advance Magazine
Publishers Inc., 18 Media L. Rep. 2281 (D.D.C. 1991); Lence v. Hagadone
Investment Co., 21 Media L. Rep. 1641 (Mont. 1993) (attorney filed claim over
newspaper articles about a claim of professional misconduct and about municipal
charges that he violated the building code); McGee v. Times Leader, 18 Media L.
Rep. 1748 (M.D. Pa. 1990) (plaintiff sued over newspaper article saying he
"managed to avoid a prison sentence despite a conviction on federal tax evasion
charges"); McKinney v. Avery Journal Inc., 18 Media L. Rep. 1204 (N.C. Ct. App.
1990) (plaintiff sued over published accusations of kidnap and rape); Newcombe
v. Adolf Coors Co., 26 Media L. Rep. 2364 (9th Cir. 1998) (baseball player who
is recovering alcoholic sued over a beer advertisement that included his
likeness); Posner v. New York Post Co., 1935 Media L Rep. 1934 (N.Y. Sup. Ct.
1997) (State Supreme Court justice filed over newspaper article listing him as
one of the 10 worst judges in the state); Tackett v. KRIV-TV, 22 Media L. Rep.
2092 (S.C.Tex. 1994) (attorney claimed a broadcast falsely portrayed him as
arranging adoptions without a license); Veilleux v. National Broadcasting Co.,
26 Media L. Rep. 1929 (D.C. Me. 1998) (trucker sued over broadcast about drug
use among truckers); Wavell v. Caller-Times Publishing, 18 Media L. Rep. 2204
(Tex. App. 1991); and Wright v. Grove Sun Newspaper Co., 22 Media L. Rep. 1801
(Okla. 1994) (filed by man mentioned in transcript of conversation of two
undercover narcotics agents that was released to the press and public).
 21 Media L. Rep. 1339 (E.D.Va. 1993).
 Editor & Publisher International Yearbook, Part I, at I-441 (1998). A
frivolous case that did not involve a media defendant but was interesting was
Sagan v. Apple Computer Inc. 22 Media L. Rep. 2321(C.D.Cal. 1994). The court
decided that Apple's use of the term "butt-head astronomer" as a code name for a
personal computer, even after astronomer Carl Sagan demanded that the company
stop using the name, did not support a claim of intentional infliction.
 Intentional infliction cases are, of course, just one indication of
public dissatisfaction with the press. The verdict in the 1997 Food Lion case is
another example. See, e.g., Howard Kurtz and Sue Anne Pressley, "Jury Finds
Against ABC for $5.5 Million; Punitive Damages Awarded to Food Lion Over
Hidden-Camera Report," Washington Post, Jan. 23, 1997, at A1. Coverage of
President Clinton's relationship with intern Monica Lewinsky has been another
focal point. See, e.g., Dylan Loeb McClain, "From Mostly Wrong to Just About
Right," New York Times, Aug. 31, 1998, at C5 (national edition); Albert R. Hunt,
"Washington Events Fuel Disdain for Media, Politics," Wall Street Journal, Sept.
17, 1998, at A12.
 Edmund B. Lambeth, Committed Journalism: An Ethic for the Profession
(Bloomington and Indianapolis: Indiana University Press, 2d ed.,1992), at 1.
 See, e.g., John C. Merrill, Journalism Ethics: Philosophical Foundations
for News Media (New York: St. Martin's Press, 1997), at 1.
 Lambeth, supra note 120, at 31.
 Id. at 32.
 Magruder, supra note 9, at 1035.