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

handle is hein.journals/remand51 and id is 1 raw text is: Intentional Infliction of Emotional Distress & The Hulk Hogan Sex Tape: Examining a Forgotten Cause of Action in Bollea v. Gawker Media, the Gap It Reveals in IIED's Constitutionalization, and A Path Forward for Revenge Porn Victims CLAY CALVERT* ABSTRACT This Article examines Hulk Hogan's successful, yet largely overlooked, cause of action for intentional infliction of emotional distress (IIED) before a Florida jury in 2016 in Bollea v. Gawker Media, LLC. In doing so, the Article explores critical factual differences between Bollea and the U.S. Supreme Court's two decisions constitutionalizing the IIED tort, Hustler Magazine v. Falwell and Snyder v. Phelps. Despite such distinctions, the Article discusses the trial court's instruction to the jury to consider a First Amendment- based, public-concern defense-one closely akin to that in Snyder-on Hulk Hogan's IIED claim. The Article also proposes a jury instruction on the extreme and outrageous conduct element in IIED that would require jurors to consider the substantive value of the speech in question. Finally, the Article suggests that Hulk Hogan's victory for IIED bodes well for revenge porn victims who pursue civil lawsuits pivoting on this cause of action. * Professor & Brechner Eminent Scholar in Mass Communication and Director of the Marion B. Brechner First Amendment Project at the University of Florida, Gainesville, Fla. B.A., 1987, Communication, Stanford University; J.D. (Order of the Coif), 1991, McGeorge School of Law, University of the Pacific; Ph.D., 1996, Communication, Stanford University. Member, State Bar of California. The author thanks graduate student Austin Vining of the University of Florida for his research and editorial assistance with several early drafts of this Article. He also thanks Berl Brechner for his consistent and continued support of the Marion B. Brechner First Amendment Project. 1

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