Intentional Infliction of Emotional Distress: An Old Arrow Targets the New Head of the Hate Hydra
57 Pages Posted: 8 Feb 2007
This article advocates that lawyers use the tort of intentional infliction of emotional distress to challenge and deter bias-motivated harassment on the Internet and contributes important observations about the evolving tort of outrage, the changing face of extremist activities and the growing debate about First Amendment freedoms on the Web.
After a brief discussion of on- and off-line harassment by racist extremists, the article turns to the facts of Housing and Urban Development v. Wilson, HUDALJ 03-98-0692-8 (July 19, 2000), to demonstrate the viability of the intentional infliction of emotional distress as a tool to challenge hate-motivated harassment via the Internet. First, the tort permits a contextual analysis that encompasses the online medium's unique challenges - its force multiplier effect, its viability as a tool of anonymity and the inadequate response of law enforcement to Internet conduct - challenges which fuel emotional harms. Second, in reliance upon the analysis of the Ninth Circuit en banc decision in Planned Parenthood of the Columbia/Willamette, Inc v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (6-5 decision), the article argues that the tort of intentional infliction of emotional distress does not infringe on a hate monger's First Amendment rights, because Web postings that make serious threats of violence against specific individuals constitute "true threats."
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