Last week, the Fourth Court of Appeals in San Antonio, Texas upheld the trial court's dismissal of Clark High School vice-principal Anna Draker's lawsuit against two students and their parents over a fake MySpace profile. Benjamin Schreiber and Ryan Todd allegedly created a fake MySpace page for Draker in 2006, which contained her name, photo, place of employment, and explicit and graphic sexual references implying that she was a lesbian. After learning about the fake profile, Draker contacted MySpace, which promptly removed the page.
Not content to stop there, Draker sued Schreiber, Todd, and their parents, asserting claims for defamation, negligent supervision, and intentional infliction of emotional distress. On a motion for summary judgment, the Texas trial court dismissed the defamation claim, ruling that the statements appearing in the fake profile were not defamatory as a matter of law because they asserted no facts that could be objectively verified. The district court ruled on a separate motion that Draker's intentional infliction of emotional distress claim failed because it repackaged the same allegations as the defamation claim. Draker appealed this latter ruling only.
- the defendant acted intentionally or recklessly;
- the defendant's conduct was extreme and outrageous;
- the defendant's action caused the plaintiff emotional distress; and
- the emotional distress suffered by the plaintiff was severe.
Plaintiffs who file defamation lawsuits often add an intentional infliction of emotional distress claim as an alternative theory of liability. It's not necessarily easy to prove such a claim, primarily because of the requirement of "extreme and outrageous" conduct. You can, however, imagine cases where speech that is simply mean or offensive might inflict severe emotional distress, yet not rise to the level of defamation. This could create a chilling effect on constitutionally protected speech.
In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the U.S. Supreme Court addressed the problem of plaintiffs using intentional infliction of emotional distress claims to get around the constitutional impediments to a successful defamation claim. The court held that public figures and public officials may not recover for intentional infliction of emotional distress for speech unless they can show that the publication in question contains a false statement of fact made with actual malice.
The Falwell case leaves open whether private figure plaintiffs can recover for infliction of emotional distress in speech cases without showing a false statement of fact and actual malice. The huge jury verdict in the Snyder v. Phelps case demonstrates that this is not a mere academic question. In that case, the court submitted an intentional infliction of emotional distress claim to the jury despite having dismissed Snyder's defamation claim because the intentional infliction of emotional distress claim was based on statements of religious opinion, not facts.
Texas deals with this problem by not recognizing an intentional infliction of emotional distress claim when it looks like a defamation claim in disguise. In last week's opinion in the Draker v. Schreiber case, the Texas appellate court held that if the crux of a plaintiff's complaint is defamation, then Texas will not recognize a claim for intentional infliction of emotional distress based on the same facts, regardless of whether the plaintiff can succeed on the defamation claim. The court found that Draker's factual allegations about the fake MySpace page all related to her defamation claim and therefore affirmed the trial court's grant of summary judgment against her. See Draker v. Schreiber, 2008 WL 3457023 (Tex. App. Aug. 13, 2008) (sorry, we haven't located a public domain copy of the opinion yet).
In her concurring opinion, Justice Catherine Stone chastised the students for their "outrageous" conduct and bemoaned the lack of a remedy under Texas law for this type of harm. She focused on the Internet's capacity for mischief, invoking several high-profile incidents, including the recent uproar over postings on Juicy Campus, the Megan Meier suicide case, and the John Seigenthaler/Wikipedia controversy. Justice Stone concluded:
There appears to be little civil remedy for the injured targets of these internet communications. Intentional infliction of emotional distress would seem to be one option. But as it has developed, the tort is nearly impossible to establish. The citizens of Texas would be better served by a fair and workable framework in which to present their claims, or by an honest statement that there is, in fact, no remedy for their damages.
While I sympathize with Justice Stone's concern about cyberbullying and other offensive conduct online, I don't agree that the law's suspicion of intentional infliction of emotional distress claims is a bad thing. It seems far more dangerous to me to have plaintiffs using a potentially easier-to-prove legal claim to get around the constitutional protections for speech that defendants enjoy in defamation cases.